How Ban the Box Legislation is Changing Hiring Practices

As of January 2015, 14 states, Washington, D.C., and 100 cities and counties have adopted Ban the Box legislation. Ban the Box laws, also called Fair Chance Policies, require businesses to remove the conviction history question on job applications and delay background checks until later in the hiring process. Because there is no federal mandate requiring the elimination of this question, each Ban the Box state, city, and county has the freedom to create its own version of the law, which can complicate and, in some cases, conflict with already established hiring laws.

To help decipher Ban the Box legislation and its impact on the future of hiring practices, we’ve outlined why and where the law exists, variations that may appear within the law, how it impacts current policies, and tips for hiring managers.

What is Ban the Box?

Ban the Box legislation refers to removing the question from job applications that asks candidates about their criminal history. The first state to pass such a law was Hawaii in 1998, before the phrase “ban the box” existed. That came later, in the early 2000s, when an activist group called All of Us or None used the term to describe its California campaign. The phrase has been associated with the legislation ever since.

Why Does Ban the Box Exist?

The National Employment Law Project, which promotes the Ban the Box movement, argues that the law helps support the employment opportunities of people with records, which in turn “creates safe communities, reduces childhood poverty, and strengthens families.”

Proponents assert that the increased use of background checks excludes too many applicants from jobs for which they are otherwise qualified and is partly to blame for high recidivism numbers (when people convicted of a crime commit another offense).

One such advocate is Ari Weisbard, deputy director of the D.C. Employment Justice Center. Weisbard says about 50% of people returning to society from prison re-enter the criminal justice system, and employment has been shown to be one of the best ways to reduce recidivism.

The Center for Economic and Policy Research (CEPR) also supports this argument. In a 2010 study, CEPR reported that keeping people with prison records out of the workplace caused $57 to $65 billion in annual losses for the economy. It’s estimated that one in four adults in the U.S. has an arrest or conviction record. Many of these people, however, never faced charges or had charges dropped, but because arrest records aren’t automatically removed, the charge keeps them from being considered for employment.

The movement got an additional boost from the federal government in 2012 when the Equal Employment Opportunity Commission (EEOC) recommended removing criminal history questions from job applications. The EEOC called for businesses to reserve asking criminal history questions until later in the hiring process, and required employers to demonstrate how records’ restrictions are directly related to the job in question. It also mandated that applicants be individually assessed for positions.

Which States have Ban the Box Legislation?

The 14 states with established Ban the Box laws are:
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Georgia
  • Hawaii
  • Illinois
  • Maryland
  • Massachusetts
  • Minnesota
  • Nebraska
  • New Jersey
  • New Mexico
  • Rhode Island

In addition to the 14 states and 100 cities and counties, some big-box stores with locations nationwide (such as Target and Wal-Mart) have also removed the criminal history question from applications.

What Ban the Box Does — and Does Not — Require

Ban the Box laws do more than just eliminate a check box. Each individual law is different, but a few mandates are included in most variations. Some common elements are:
  • Requirements concerning the types of convictions employers can ask about and how far back an inquiry may extend
  • A test requiring employers to consider the nature and gravity of the offense, the time that has passed since the offense and/or completion of the sentence, and the nature of the job in question
  • Mandates to delay background checks until later in the hiring process
  • A condition requiring employers to notify applicants when criminal information is being used

Actions Ban the Box legislation does NOT prohibit employers from doing

  • Running background checks – employers can still do this, just later in the hiring process
  • Taking into consideration an applicant’s criminal history – by moving the question to later in the hiring process, Ban the Box advocates hope it will be just one element taken into consideration, rather than the only thing employers notice about an applicant

How Ban the Box Affects Current Hiring Policies

Every Ban the Box law is different and affects different businesses in different ways. For example, in Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, Ban the Box legislation extends to government contractors and private employers, whereas it only applies to public businesses with 10 employees or more in most other situations (exceptions include Washington, D.C. and 25 other cities and counties which also have the law).

Limitations outlined in different Ban the Box laws may also conflict with Fair Credit Reporting Act (FCRA) requirements. Under the FCRA, employers using third-party background check services are required to follow specific guidelines when obtaining reports on job applicants, such as obtaining applicants' written consent before running a background check on them. But without the criminal history question on applications, employers now need to find other ways to obtain applicants' written consent.

Another confusing element is that some states exempt certain job fields from Ban the Box regulations. New Jersey’s version of Ban the Box, for instance, exempts law enforcement, corrections, judiciary, homeland security, and emergency management positions. So employers filling these jobs are allowed to include a criminal history question on applications at the beginning of the hiring process.

Additional exemptions extend to fields in which an employer is legally required by the federal government to conduct a background check. This includes such areas as airport security screeners, law enforcement officers, child care workers, bank employees, and others.

Ban the Box especially poses a challenge for businesses that use the internet to gather applications and automatically exclude applicants based on criminal records, since this elimination process is forbidden by the new laws. Companies facing this situation are encouraged to use other criteria to limit the number of applications they receive, such as specific requirements based on experience or education.

5 Ways to Work with Ban the Box Legislation

  1. Be aware of any Ban the Box legislation in your state, city, or county, and be familiar with the specific requirements of the law
  2. Review job applications and other documents used in the hiring process (i.e. online questionnaires) to ensure they comply with the law
    Tip: Consider having different applications and questions relating to criminal history for different positions or job classes
  3. Ensure everyone involved in the hiring process is aware of new regulations and is trained accordingly
  4. Review what is included in background check services to make sure you’re choosing to run a check that doesn’t violate Ban the Box regulations
  5. Contact your state’s Department of Human Rights with questions

Background checks are still very much a part of the hiring process despite the growing popularity and implementation of Ban the Box legislation. That means it’s still fully possible to fail a background check – it's just now there are regulations requiring employers to give all applicants a fair chance at earning the position.

To learn more about laws employers need to follow, check out this resource that outlines what an employment background check entails.

This Information Is Not Legal Advice


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