A Mid-Year Ban the Box Compliance Report: Ban the Box

By Michael Klazema on 7/21/2020

2020 has been a hectic year for everyone, but especially for employers. First, businesses had to contend with the stay-at-home orders wrought by COVID-19, either adapting to work-from-home models or implementing a wide range of new safety precautions and state-required mandates rapidly. Next, as the stay-at-home orders lifted, businesses put together protocols for how to resume in-person operations safely. Now, worries about spiking cases and a second wave of the novel coronavirus are upon us, leaving even more uncertainty in their path. 

Amidst all this chaos, many employers may have overlooked the fact that new employment-related laws have gone into effect this year. In this post, we will cover some of the most significant changes that 2020 has delivered for ban the box legislation

The most significant ban the box law to go into effect in 2020 is a Maryland statute that prohibits private employers with 15 or more employees from asking about criminal history in any form—whether on a job application or in a phone screening—until after the first in-person interview. Maryland previously banned the box for public employers in 2013. 

Notably, the “in-person” element of Maryland’s law could prove to be unexpectedly problematic in the light of COVID-19, given that some employers are now conducting entire job interview processes virtually. The law went into effect on February 29, just weeks before the United States economy started to shut down due to the novel coronavirus. 

Several cities and counties have also added new ban the box policies this year, including Waterloo, IowaSuffolk County, New York; and St. Louis, Missouri

The Waterloo policy, which went into effect on July 1, applies to private employers with 15 employers or more. The law dictates how employers are permitted to use background check information, barring any consideration of arrests, expunged records, or charges that are pending. The law also requires employers to consider criminal record findings on a case-by-case basis and identify a “legitimate business reason” if they wish to reject a candidate based on a criminal conviction. This requirement is similar to EEOC guidance, which demands that employers identify a “business necessity” when making an adverse hiring decision based on criminal history. 

Suffolk County’s ban the box ordinance will go into effect on August 25. As with the Maryland and Waterloo policies, the Suffolk County ordinance applies to private employers with 15 or more employees, prohibiting them from asking candidates about criminal convictions on job applications. 

The St. Louis ordinance applies to all private employers within the city limits with ten or more employees. Affected employers are prohibited from “basing job hiring or promotion decisions based on applicants’ criminal histories” unless they can “demonstrate” that the conviction is recent, recurrent, severe enough to raise concerns, or “reasonably related” to the responsibilities of the job. That ordinance goes into effect on January 1, 2021. 

It is essential for every business to comply with all relevant background check and hiring regulations. Beyond ban the box, it is worth understanding EEOC guidance and FCRA compliance among local and state laws and ordinances. Use the Learning Center to learn more about compliance today.



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