This past week New York City joined a growing national movement prohibiting employers from asking applicants about previous criminal convictions until they are first evaluated on their job qualifications. This new law requires employers to hold off conducting criminal background checks and Internet searches until after a conditional job offer has been made. 1 New York City joins over one hundred U.S. cities and seventeen states which have laws banning the check box on job applications asking if the applicant has ever been convicted of a crime.2 While many of the individual “Ban the Box” laws across the country vary in scope, most, like New York City, include both public and private employers — many of which include hospitals, clinics, surgery centers and doctor’s offices.

The “Ban the Box” movement originated from concerns of employment after incarceration and high rates of recidivism (relapsing into criminal behavior). Historically, individuals with previous criminal convictions are often tossed aside before their skills are considered. The new laws encourage job offers to be made based on skills and experience without judgment of previous transgressions. Side benefits also include decreasing unemployment rates and perpetuating the hope of a successful rehabilitation.3

However, the “Ban the Box” movement seems incongruent in the world of healthcare where an increase in violence recently prompted OSHA to update its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. OSHA, reporting from the Bureau of Labor and Statistics, claims healthcare and social service workers are four times more likely to receive an injury caused by violence and five times more likely to be the victim of a non-fatal assault or violent act than an average worker in the private sector.

While the new laws will apply to healthcare facilities in areas where they are in effect, they do not necessarily apply to all potential employees of those facilities. For example, they do not apply where a federal, state, or local law requires the employer to perform a criminal background check or bars employment based on criminal history. They also do not apply where a rule or regulation of a self-regulatory organization requires criminal background checks as a condition of acceptance or accreditation. Most physicians, for example, are required to have criminal background checks as a condition of licensure by state medical board and as a condition of reimbursement from Medicare/Medicaid. In addition, regulatory bodies such as The Joint Commission reinforce state laws and hospital policies with regulatory standards as a condition of accreditation.

On a federal level, the National Child Protection Act of 1993 and the Violent Crime Control and Law Enforcement Act of 1994 give states authorization to require criminal background checks of individuals who provide care for children, the elderly, and individuals with disabilities.4 Most states also have laws in effect requiring criminal background checks of home health and personal care aids as a requirement for certification.

However, healthcare facilities are also filled with individuals in positions that do not involve direct patient care, and these positions could be subject to the “Ban the Box” requirements. For these individuals, hospitals and surgery centers, normally focused on credential, competency and reference checks, need to make sure conditional job offers are made before criminal background checks are initiated and that these checks are held off until the end of the hiring process.5 Using a system such as can provide a long-term solution to documenting hiring timelines for all types of employees and making sure the correct actions are done at the correct time to protect your facility and staff.

Sources:

  1. http://www.natlawreview.com/article/ban-box-plus-comes-to-new-york-city-jurisdiction-latest-to-prohibit-employers-inquir
  2. http://www.jonesday.com/ban-the-box-a-discussion-of-state-and-local-laws-restricting-inquiries-into-an-applicants-criminal-history-09-16-2014/
  3. http://www.psmag.com/politics-and-law/ban-box-employing-former-felons-will-improve-economy-public-safety-78407
  4. https://www.ncjrs.gov/pdffiles/167248.pdf
  5. http://in-training.org/ban-box-confronting-discrimination-hospital-hiring-8306

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