Webinar Q&A: Reconciling 'Ban the Box' with FMCSA's Disqualifying Offenses

Did you have a chance to attend our webinar last week, "Reconciling 'Ban the Box' with FMCSA's Disqualifying Offenses"? We received more questions than we had time to answer in the allotted time frame, so we've answered them below.  

Dave Osiecki, CEO of  Scopelitis Transportation Consulting, LLC and presenter on the webinar, answers each of the questions we received in this Q&A-style blog post. Whether or not you were able to attend, these questions regarding your CDL driver application will help you be more efficient and hire faster.

Question: Can we get a copy of the slides from the webinar?

Answer: The webinar is now available on-demand and can be viewed in its entirety by clicking here

Question: I hire drivers in New Jersey and I advertise primarily online. Our main customer services correctional facilities. Due to this customer base, I cannot hire a driver that has a felony conviction. How do I advertise the position? I have always shown in my posting "no felony convictions" due to customer base. How do I move forward?

Answer: New Jersey’s ban the box law is fairly straightforward—it restricts employers from asking a job applicant about his/her criminal history during the initial application process, and it also restricts an employer from using an online application that requires an applicant to disclose a criminal record or an expunged criminal record. After a conditional offer is made, a NJ employer may seek and consider the criminal history of an applicant. And, importantly, the NJ law does not require an employer make an individualized assessment of an applicant’s criminal history (i.e., whether it’s job-related), and it does not affect or prohibit an employer’s policy or advertising of a ‘no felony convictions’ policy.  As such, a carrier may still advertise that it does not hire drivers with felony convictions.

One additional, important note—like many other ban the box laws, NJ’s law includes an exemption allowing an employer to ask criminal history questions, prior to a conditional offer, about convictions that would exclude them from a job under state or federal law. This means that NJ-based motor carriers are able to seek criminal conviction information from driver-applicants, prior to a conditional offer, for disqualifying offenses listed in the CDL rules (at 49 CFR Section 383.51).

Question: How does ban the box affect or interfere with any Homeland Security laws? For example: anti-terrorism concerning hazmat?

Answer:  Ban the box laws should not have any direct effect on, or conflict with, any Homeland Security laws concerning hazmat. Keep in mind that the basic tenet of a ban the box law is that a person’s qualifications for a job should be considered first by a potential employer, which is why these laws delay a criminal history background check until later in the hiring process (i.e., after a conditional offer of employment is made).   

Question: Can a company have a policy that excludes any felony conviction within 5 years after a conditional offer?

Answer:Generally speaking, under most ban the box laws, the answer is yes. However, if an applicable State or local ban the box law (e.g., the CA law) requires an employer to make an individualized assessment of the applicant’s criminal history (job-relatedness, time passed since conviction, etc), then a blanket policy re: ‘no felony convictions in the last 5 years’ may not be a valid policy under that particular law.

It is very important to know and understand the specifics of any ban the box law applicable to your company. Moreover, in order to avoid allegations of race or national origin discrimination, we recommend that companies avoid hard and fast rules that could be interpreted as a blanket ban against hiring anyone with a criminal record.

Question: What is best practice or law around how far back an employer can go into someone's criminal background check?

Answer: Most ban the box laws do not address the time period that may be considered by an employer when evaluating criminal history issues. As a general rule, an employer is safest when acting on a criminal conviction that is both recent in time and relevant in some way to the job at issue. The further in time you go back (particularly on lesser offenses), the greater the argument that the conviction is stale and should not have been considered by the employer.

Question: If we are based in Illinois and hire in other states, are we regulated under Illinois law?

Answer: As you are based in Illinois and your hiring activities presumably emanate from Illinois, we believe the best practice is to comply with the Illinois ban the box law for all of your hiring – even with respect to those out of state applicants.

Question: Does the conditional offer apply to independent contractors as well? 

Answer: Generally, no. Almost all of the ban the box laws apply solely to employers and employees. Currently, the laws in Washington, Hawaii, and the City of Austin apply to independent contractors.

Question: Refusing / Failing a DOT drug screen is a disqualifying offense. How can we know this information if the driver isn't forthcoming in their application?

Answer: Unfortunately, under the current federal safety regulations and background screening processes, a potential motor carrier employer is not likely to learn about a driver’s failed drug screen at a past employer, or on a pre-employment drug test, if the driver does not list that employer on their application. This is a longstanding loophole in the Federal Motor Carrier Safety Administration’s (FMCSA) drug testing and background screening regulations found at 49 CFR 382 and 391.  

However, FMCSA is currently creating a new CDL drug and alcohol clearinghouse that is intended, in large part, to close this loophole.  This new clearinghouse must be in place and operating by January 2020. You can read more about this clearinghouse at this link: https://www.gpo.gov/fdsys/pkg/FR-2016-12-05/pdf/2016-27398.pdf

Question:  Is it better to NOT ask criminal questions at all on the DOT application?

Answer: Given the challenge of trying to comply with a mosaic of state and local ban the box laws, many national employers have simply decided to remove the criminal history inquiries from their application and move them to a point later in the process. We think this approach makes sense. Even under the most stringent ban the box law, a motor carrier employer can still conduct a criminal history background check later in the hiring process, and the potential employer may still consider any criminal history found during that check.  

Also, remember that most ban the box laws contain an exception that would permit an employer to ask questions regarding criminal convictions that would be disqualifying under a federal law or regulation.

Stay tuned for more upcoming webinars, as well as other important recruiting and retention related topics from DriverReach's blog.  


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