Ban the Box: Summer 2021 Update

Ban the box legislation has been the top trend to watch in background checks and hiring over the past decade, and that trend shows no signs of slowing. As summer 2021 arrives, several new laws and ordinances are going into effect and bringing about notable changes for employers or landlords. In this post, we will examine a few ban the box changes that are currently breaking ground.

A national ban the box law?

Ban the box legislation is currently jurisdictional, with laws at the state level, ordinances at the county or city level, and internal policies at specific businesses. As the trend spreads throughout the United States, experts suggest that it is a matter of time before a nationwide ban the box law takes hold.

We may be nearing that moment: in March, democratic lawmakers in the U.S. House of Representatives introduced legislation that they are calling “the Workforce Justice Act.” If passed, the bill would give states three years to comply with a federally-mandated ban the box law.

Unlike some ban the box legislation that targets public jobs (primarily government offices or departments), the Workforce Justice Act would require private-sector employers to remove questions about criminal history from their hiring process. According to the Society for Human Resource Management (SHRM), states that fail to comply with the law after three years “would stand to lose criminal justice funding.

If it becomes law, the Workforce Justice Act would be the most significant event in the history of ban the box legislation. Right now, 36 states and over 150 local jurisdictions have laws that ban the box, but only 14 states and 20 cities and counties extend ban the box to private employers.

Illinois expands scope of ban the box law

A recent article in Industrial Distribution explores a growing trend inside ban the box: jurisdictions revisiting existing ban the box laws and broadening their scope. Two examples are New York City and Philadelphia. Both cities amended their ordinances in 2020, adding strict requirements about how employers must justify adverse hiring decisions based on criminal history.

As Industrial Distribution notes, both cities now have “detailed criteria” that employers must use to establish a relationship between a job and a candidate’s criminal history. Technically, these requirements were already a part of Equal Employment Opportunity Commission (EEOC) guidance, but they are now formalized in these regional ban the box laws.

In March, Illinois joined the growing list of jurisdictions that have expanded their ban the box legislation to include requirements for adverse action. In the past, ban the box has primarily delayed when in the hiring process an employer finds out about a candidate’s criminal history. The goal is to give the candidate a chance to prove their skills and qualifications before their criminal past becomes a part of the conversation. 

The Illinois amendment, which took effect upon signing on March 23, requires employers to evaluate criminal convictions and identify a “significant relationship” between those convictions and the job at hand before taking adverse action. 

These requirements either mirror guidance from the EEOC (considering factors such as the nature of the crime, how much time has passed since the conviction, and evidence of rehabilitation) or the Fair Credit Reporting Act (such as providing a notice of adverse action to the subject and preserving that individual’s right to respond). 

While ban the box expansions are likely to become more common in the years to come, they should not have a significant impact on employers that are already observing EEOC and FCRA guidance on background checks and adverse action.

New Jersey bans the box for housing

The ban the box trend began as an effort to open more employment opportunities to job seekers with criminal records. Increasingly, the trend also encompasses housing. On June 3, legislators in New Jersey passed a bill that bans the box on housing applications across the state. 

According to the New York Times, the bill is “the most sweeping of its kind,” surpassing housing-related ban the box policies in jurisdictions such as San Francisco, Seattle, and Colorado. Landlords who break the rule can face fines as high as $10,000. Landlords are still allowed to require background checks for prospective tenants, and they can deny applicants for serious red flags, including violent crimes and sex offenses.

To keep up with future developments in ban the box, right to respond rules, and other topics related to background checks, follow the backgroundchecks.com blog.

Michael Klazema

About Michael Klazema The author

Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.

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