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The Professional Testing Blog

Should Certification Applications “Ban the Box”? 

This post is written by guest blogger and President of GKG Law, P.C., Richard Bar. 

Employers looking to hire are increasingly concerned about “ban the box” laws.  These laws prevent employers from asking job applicants certain types of criminal history background questions during the job application stage (although those types of questions can be asked later in the hiring process).  “Ban the box” laws typically appear at state and more local levels, although they have gained federal traction in the past five years, including Congress’ passing of Fair Chance to Compete for Jobs Act of 2019, which generally prohibits government agencies from initiating criminal history inquiries until they have extended a prospective employee a conditional offer. In addition, according to the National Employment Law Project, there are at least 37 states and more than 150 cities and counties that have passed “ban the box” legislation. 

Credentialing bodies have become concerned about the applicability of “ban the box” principals during the certification application process.  While “ban the box” laws vary among the different state and local governments, traditionally, certification bodies have not been considered to be employers in the context of the certification application process.  As a result, certification applications have not been governed by the “ban the box” laws of those states and municipalities that have adopted “ban the box” job application legislation. 

However, there has been a growing trend to expand “ban the box” policies to public sector licensure authorities. In fact, as of 2019, 15 jurisdictions have incorporated some form of Fair Chance Licensing Reform for the public sector. It is possible this could expand to private credentialing bodies. Credentialing organizations would be wise to continue to monitor this trend to make certain that they do not run afoul of possible applicable “ban the box” policies. 

To that end, there are several steps certification organizations can take to make sure their credential applications comply with laws that prevent the stigmatization of employment applicants and disparate impact among minorities. Certification bodies should be mindful of the following: 

• Certification applications should avoid stigmatizing language. Do not use words like “ex-offender” or “ex-felons”. If you have to, use terms such as “people with records”. 
• Certification applications should avoid blanket exclusions. Do not indicate that an applicant automatically will be rejected unless there is a specific legal exclusion. Do not make statements such as an “applicant must have a clean background check” or “clean background only”. 
• Certification organizations should consider only relevant convictions. Not every conviction should be grounds for rejection.  Convictions should have a direct connection to the credential.  Consider the length of time since the conviction.  Do not consider sealed or dismissed convictions. Credentialing organizations should adopt rules and procedures for reviewing convictions. Create a committee that reviews the conviction reports.  The committee’s decisions should be reasonably related to the certification and consistent with past decisions. 
• If a certification applicant is rejected due to a background check, notify him or her in writing and provide him or her with a copy of the background check. 
• Give an applicant an opportunity to respond to any concerns. There may be mitigating factors that are worth considering. Or, the conviction record may be incorrect. 
• Never ask for, or consider, arrest records. 
• Credit checks should not be conducted unless there is a substantial relationship between someone’s financial status and the credential. Some organizations may claim that there is a connection between a person’s credit rating and his/her integrity.  Others argue that a person’s financial habits are an indicator of how he/she would handle an organization’s assets.  These assumptions are dangerous.  You must ensure that your organization’s reasons for requesting a credit report are accurate and defensible. 

When it comes to their certification applications, credentialing bodies are not considered to be employers and therefore, are not governed by applicable “ban the box” legislation.  While that is good news, it is not the whole story.  Credentialing bodies still have to be mindful about what questions they can ask during the certification application process so as not to be in violation of other applicable laws.  A careful analysis and review of your organization’s credentialing application will minimize the likelihood of a successful third-party attack. 

Categorized in: Industry News