By Sandy Cody
What are ban-the-box laws, and what do they mean for your organization?
Read on to learn more about this movement and to determine where ban-the-box legislation has been passed, whether or not they apply to you, and how your organization can comply with this legislative trend.
What does it mean to “ban-the-box?
The “box” refers to the question on job application forms that ask applicants whether or not they have ever been convicted of a crime. Ban-the-box laws require employers to remove this question—as well as any other queries about criminal history—from job applications.
Ostensibly, ban the box laws seek to prevent employment discrimination against individuals with criminal records. The idea is that an employer gets a chance to form an initial impression of each applicant’s current character before the employer reacts to the fact that the applicant has a criminal history. With no questions about criminal history on the job application, and with background checks delayed until late in the hiring process, an ex-offender will theoretically have a better chance of being viewed as “the best person for the job.
However, most ban-the-box legislation places other restrictions and other requirements on employers. For instance, some states prohibit employers from inquiring about arrests, dismissed history, sealed records, or history in a diversion program. Some ban-the-box laws restrict employers from inquiring about criminal history until after the first interview or until a conditional offer of employment is made. Some jurisdictions require employers to consider other factors, such as time-related restrictions or whether a criminal history is job-related.
How does the law affect what employers can do with background checks?
Do these laws also ban background checks? Ban-the-box laws typically do not forbid employers from running background checks on their applicants, but some require a delay in obtaining a criminal background check until after the first job interview or until after a conditional offer of employment is made.
Some restrict how an employer can use the information obtained in a background check, some require additional notices be given to applicants, and some delay the hiring process by granting a right to appeal employer decisions based on criminal history information.
That’s not to say employers can’t disqualify applicants based on criminal history. A conditional offer of employment can be withdrawn, although some ban-the-box laws limit withdrawal to situations where background check findings indicate that an applicant has a criminal conviction that directly affects their ability to perform the job in question. Some ban-the-box laws require employers to consider criminal histories on a case-by-case basis, rather than rejecting all applicants who check the “criminal record” box on a job application or have specific types of criminal history.
Note that new ban-the-box laws are being implemented regularly at this point, both as state or county laws and as city ordinances. In many spots, these laws apply only to public government positions; elsewhere, they apply to both private and public employers. You will want to do some research about your area to learn the specifics of your local ban-the-box laws, or to find out if your state or local jurisdiction is considering such a law.
Here is a link that charts state and local restrictions on criminal history inquiries and background checks for non-governmental employers. As you can see, these laws are complex and they vary from one jurisdiction to another. With the EEOC recommending that employers follow the ban-the-box guidelines—eliminating questions about convictions from job prevalent in the coming years.
Latest major updates
April 3, 2019 New Mexico “Criminal Offender Employment Act” Employers should review their job applications to ensure compliance by the mid-June 2019 effective date.
February 2018 update
City of Kansas City, MO Bans the Box and More
October 2017 update
California Bans the Box and More
May 2017 update
Indiana Un-Bans the Box
April 2017 update
Compliance Guidelines for Los Angeles Ban the Box Ordinances
Thank you to BackgroundChecks.com for providing the information in this post.
Sandy Cody, president of Draker Cody, Inc., has more than 30 years of management and human resources experience and holds a Masters Degree in Management with a focus on Human Resource Management and Organizational Development.