Author: David B. Weisenfeld, XpertHR Legal Editor

June 18, 2013

Buffalo and Seattle are joining the growing Ban the Box movement as both cities have passed legislation banning the use of criminal history questions on job applications. Ban the Box refers to the box on employment applications that prospective employees are often asked to check off if they have ever been convicted of a crime.

More than 50 cities have now enacted Ban the Box laws. But the Buffalo and Seattle measures stand out because both will also apply to private employers. Prior to the passage of these ordinances, the only US cities to have passed Ban the Box laws that directly impact most private employers were Newark, NJ and Philadelphia.

Buffalo Bill

The Buffalo ordinance prevents the city, its vendors and any private employer located in Buffalo with 15 or more employees from asking questions relating to an applicant's past criminal convictions on an initial job application. The law aims to give applicants who have been convicted of minor offenses a chance to reach the job interview stage. It takes effect January 1, 2014.

Employers may still ask criminal history questions during job interviews. In addition, the new ordinance will include exemptions for the city's police and fire departments, as well as jobs involving the supervision of children, young adults, senior citizens or the physically or mentally disabled.

Sleepless in Seattle

Since 2009, the City of Seattle has had a policy of not asking prospective employees about prior arrests or convictions on job applications, and has also limited the categories of jobs that require background checks.

On June 10, 2013, the Seattle City Council went one step further and voted unanimously to prohibit both public and private employers from making criminal history inquiries until after the initial application stage.

The measure also bans employers from automatically excluding applicants with an arrest or conviction record from consideration. As a result, an employer may not exclude a qualified applicant based solely on their criminal record without a "legitimate business reason." What's more, applicants or employees must be given a reasonable opportunity to explain or correct the information. The Seattle ordinance is effective November 1, 2013.

Thus far, only three states - Massachusetts, Minnesota and Hawaii - have passed Ban the Box laws applying to both public and private employers. The Minnesota law has yet to take effect.