Compliance and Regulation Updates

Ban the box

ban-the-box-law

Of all the trends currently changing the background check industry and employment, few have more momentum than the ban the box movement.

In recent years, we have seen ban the box laws enacted in states, cities, and counties across the nation. What is this policy, and what does it mean for your organization? Learn about this movement to find out where banning the box legislation has been passed, whether these laws apply to you, and how your organization can comply with this legislative trend.

What is the 'ban the box' law?

The first step to understanding the implications of this law is to define what the law is. The “box” in the phrase refers to the question on job applications that asks applicants whether they have ever been convicted of a crime. Typically, candidates are asked to check yes or no to answer this question, hence the “box.”

Applications with this question require job seekers to self-identify as criminal offenders from the start of the job application process. A ban the box law is a legislative action that requires employers to remove this question–as well as any other criminal history questions–from applications.

These laws seek to prevent employment discrimination against individuals with crime records. The idea is that an employer gets a chance to form an initial impression of each applicant’s character, skillset, and overall job fitness before learning that he or she has a criminal past.

With no criminal history questions on the job application, and with checks often delayed until late in hiring, an ex-offender will theoretically have a better chance of being “the best person for the job.”

Most banning the box legislation also places other restrictions and requirements on employers. For instance, some states prohibit employers from inquiring about arrests, dismissed charges, sealed records, or history in a diversion program.

Some of these laws restrict employers from inquiring about criminal history until after the first interview or after they make a conditional offer of employment. Some jurisdictions require employers to consider other factors, such as time-related restrictions or whether the criminal history is job-related.

History of ban the box

Though it has become a buzzword in employment over the past few years, the trend dates back more than two decades. In 1998, Hawaii became the first state in the country to eliminate the box for both public and private employers. The law made it illegal for employers to inquire about a candidate’s criminal history in any way until after making a conditional offer of employment.

In the Hawaii law, and in many laws passed since then, “conditional” means that employers still have the option to withdraw an employment offer if the check reveals something about the candidate that calls into question their ability to perform the job.

Even in such situations, the Hawaii law only permitted employers to withdraw an initial offer based on criminal conviction history if the conviction had a “relational relationship” to the job and its responsibilities. The law only allowed employers to consider criminal activity from the past 10 years.

In the years since, banning the box legislation has become more common, but the Hawaii law remains the prototype. From the conditional offer requirement to the segmentation of public and private employers, Hawaii’s 1998 law established the trends, signposts, and overall language that inform how professionals and administrators still talk about banning the box today.

What are fair chance laws?

These legislative requirements are part of a broader “Fair Chance” employment movement.

Proponents of this kind of hiring argue that discriminating against job candidates based on the slightest trace of crime records forces offenders to keep paying for offenses even after they have served out their sentences and paid their dues to society. Some employment advocates claim that offering more gainful employment opportunities for ex-offenders can reduce recidivism and prevent crime.

Sometimes, Fair Chance laws include banning the box elements. Other times, they focus on different factors, such as encouraging employers to consider past criminal misdeeds on a case-by-case basis rather than with a blanket policy that denies all candidates ever convicted of criminal activity.

Sometimes, these hiring laws don’t concern criminal information at all. For example, some localities have ordinances in place limiting employers’ ability to conduct credit history checks on their candidates.

Not all Fair Chance laws apply to hiring. As banning the box has grown more common, it has also developed momentum in housing. Some jurisdictions are limiting landlords in their ability to disqualify housing candidates based on criminal history.

Banning the box has also gained a foothold in higher education, with colleges and universities becoming more interested in fairly admitting students with criminal backgrounds.

While the box-banning campaign and the Fair Chance movement are often treated as synonyms, ban the box is just one piece of a broader movement.

How does ban the box affect employee checks?

Do these laws ban background checks?

This query is one of the most frequently asked questions about banning the box from both employers and job seekers. Especially as the campaign started picking up steam a few years ago, professionals often mistakenly interpreted it as a ban of all criminal checks for hiring purposes.

In truth, these laws do not typically forbid employers from running checks on their applicants. However, some box-banning legislation does require a delay in obtaining a criminal check until after the first job interview or after making a conditional employment offer.

Some of these laws also restrict how an employer can use the information obtained in a check, require employers to give additional notices to applicants, or delay the hiring process by granting candidates the right to appeal employer decisions based on criminal history information.

None of these limitations states that employers can't disqualify applicants based on past convictions. A conditional offer of employment can be withdrawn. Some ban the box laws (including the Hawaii prototype law) do limit withdrawals to situations in which check findings indicate that an applicant has a criminal conviction history that directly affects their ability to perform the job in question.

For instance, an employer could fairly disqualify a candidate with multiple DUI or DWI convictions from consideration for a truck driver position, because those convictions speak directly to that person’s safety and responsibility behind the wheel. On the other hand, those same convictions have a very minor relationship to an office job and wouldn’t necessarily be legal grounds for an employer withdrawing a conditional hiring offer.

Ban the box laws encourage employers to consider criminal histories on a case-by-case basis rather than rejecting all applicants who check a crime records box on a job application or report specific types of criminal history. They function not to bar employers from considering conviction history when making hiring decisions but rather to bring nuance to those considerations.

Who does this law apply to?

law
One of the most critical things to understand about banning the box is that it is not just one law. Rather, it is a broader trend made up of hundreds of different laws, ordinances, pieces of pending legislation, and on-the-ground advocacy campaigns. While it is possible that, someday, there could be a nationwide law, the current legislation is a patchwork.

Unfortunately, the current structure of banning the box legislation makes it more challenging for employers to understand their obligations. Some laws are enforced on the state level; others are ordinances that only apply to specific cities or counties. Some laws apply only to public employers; others include companies that do contract work with government departments, while some extend to private companies.

Even when banning the box legislation does apply to private businesses, it sometimes only requires compliance for employers with more than a certain number of employees, leaving smaller businesses to make their own decisions.

The trending nature of the fair employment movement means that laws are constantly changing. New jurisdictions are adopting their own box-banning legislation each year, while jurisdictions that already have laws or ordinances in place sometimes amend and update those laws to include new requirements.

Because of these factors, employers need to be vigilant about keeping up with the latest laws in their local jurisdiction and state. Before establishing a hiring policy or background check protocol, all employers should check relevant laws and ordinances to determine their obligations for compliance.

Failure to comply with these laws can result in fines and other legal consequences. Doing research before drawing up a job application or deciding when to run a check can help employers to avoid these costly lapses in compliance.

To help you, here are a few frequently asked questions about these laws, including the key details that employers should know about this legislative movement.

States with ban the box

At the time of this writing, 37 states (plus Washington, D.C.) and more than 150 cities and counties throughout the United States have passed some form of this legislation, according to the National Employment Law Project (NELP).

Here are the states that currently have this legislation on the books:

STATE

EMPLOYERS IMPACTED

WHEN CAN YOU ASK ABOUT CRIMINAL HISTORY?

Arizona

Public employers that are part of the state government

The law requires affected employers to delay such inquiries until after the initial job interview.

California

Any private or public employers with five or more employees

Inquiries must be delayed until after making a conditional offer of employment.

Colorado

Public employers that are part of the state government*, and private companies

Vetting candidates for criminal records is not permitted for public offices or agencies until after a candidate has advanced to the “finalist” stage of the hiring process.

 

The law affecting jobs at private companies went into effect in September 2019 and only applied to private businesses with 11 or more employees. As of September 1, 2021, it will apply to all private employment entities. The law doesn’t include any details about when employers can run background checks; it simply prohibits employers from asking the question on the job application.

Connecticut

All employers, private and public

Connecticut’s policy only bars questions to this effect on the job application.

Delaware

All public employers

Employers cannot make any inquiries or conduct any criminal background checks until after conducting the first job interview.

Georgia

Public employers that are part of the state government

Georgia’s law bars public employers from asking candidates about criminal record information on employment applications.

Hawaii

All employers, private and public

Employers cannot ask these types of questions until after making a conditional employment offer.

Illinois

Public employers that are part of the state government, and private companies with 15 or more employees

Employers must wait until after the initial job interview to conduct criminal background investigations, or after a conditional offer if there is no job interview.

Indiana

Public employers operating within the Indiana executive branch

No criminal inquiries or background checks of any kind are permitted, except when a specific crime would legally disqualify a candidate from holding the position.

Kansas

Public employers operating within or under the jurisdiction of the Kansas executive branch

No questions about past crimes or convictions on job applications, and no blanket policies that bar applicants with criminal backgrounds from progressing at least as far as the interview stage.

Kentucky

Public employers operating within the Kentucky executive branch

No inquiries into a candidate’s criminal record until after the candidate has received an offer to participate in an initial job interview.

Louisiana

All public employers if the job in question is not a “classified” position

No criminal record inquiries until after the first job interview, or until after a conditional job offer if there is no interview.

Maine

Public employers that are part of the state government

No questions pertaining to this subject on the job application.

Maryland

All public employers, and any private company with 15 or more employees

Employers are not allowed to ask candidates about their criminal pasts in any fashion until after the first job interview.

Massachusetts

All employers, public and private

Employers cannot ask questions about their candidates’ criminal backgrounds on job applications.

Michigan

All public employers

Inquiries pertaining to a candidate’s criminal past must be removed from state job applications. The law allows hiring managers to consider criminal background details during the interview process, but such information cannot be used to bar a candidate from the interview stage unless they are applying for a job where the state prohibits the hiring of a candidate with a criminal background.

Minnesota

All employers, public and private

Employers cannot ask about past criminal activity in any capacity until after the first job interview, or until after a conditional job offer if there is no interview.

Missouri

Public employers operating within the Missouri executive branch

No questions related to criminal past can be asked on employment applications.

Nebraska

All public employers

Affected employers are only allowed to inquire about a candidate’s past criminal activity once they have determined whether the candidate meets the minimum qualifications or requirements for the job at hand.

Nevada

All public employers

This law delays any inquiries about criminal matters until after a candidate has either gone through the final in-person interview or received a conditional job offer (whichever comes first).

New Hampshire

All public employers that are part of the state government

New Hampshire state government offices cannot ask about arrest or conviction histories on job applications, forcing affected employers to delay those inquiries to the interview stage. There are exceptions in the law for law enforcement positions and several other job types.

New Jersey

All employers with 15 or more employees, public and private

Criminal background inquiries in any form are illegal until after a candidate has completed the initial job interview.

New Mexico

All employers, public and private

For public employers, New Mexico law bars the use of background checks or other criminal inquiries until after a candidate has been identified as a finalist for the position.

 

For private entities, New Mexico law requires the removal of crime-related questions from job application materials.

New York

All employers, public and private

Public employers are barred from inquiring about this type of background information until a conditional employment offer.

 

Other employers can ask about some types of criminal history but cannot inquire about or consider youthful or juvenile offenses or any arrest or conviction records that have been sealed by the court.

North Carolina

All public employers

No criminal inquiries at all are permitted before the initial job interview.

North Dakota

All public employers, with the exception of public school districts

Employers are not permitted to ask these types of questions before the first job interview.

Ohio

All public employers

Affected employers must delay criminal background checks until after they have made a conditional employment offer.

Oklahoma

Public employers that are a part of the state government

All questions pertaining to criminal matters must be removed from job applications.

Oregon

All employers, public and private

Employers must delay inquiries about candidates’ criminal records until after the initial interview or conditional hiring offer (whichever comes first).

Pennsylvania

Public employers hiring for “non-civil service positions” that fall under the jurisdiction of the governor’s office

No questions about conviction history are allowed on employment applications.

 

Pennsylvania also has a separate law, applicable to all employers in the state, that requires employers to consider convictions and pending criminal charges only if they are relevant to the position.

Rhode Island

All public employers that are part of the state government, and any private companies with more than four employees.

Employers are prohibited from inquiring about a candidate’s criminal background before the first interview.

Tennessee

All public employers

No questions to this effect are permitted on the job application.

Utah

All public employers

Employers must delay inquiries about a candidate’s criminal past until the job interview or until after a conditional employment offer is made if there is no job interview.

Vermont

All employers, public and private

An employer cannot inquire about this information on a job application form.

Virginia

All public employers

Public employers in Virginia must delay such inquiries until the first interview.

 

Virginia’s marijuana decriminalization law from 2020 bisects with ban the box, prohibiting all employers in the state from requiring candidates to disclose past arrests, criminal charges, or convictions related to marijuana possession.

Washington

All employers, public and private

Employers must delay these questions until after they have determined that a candidate meets all the basic requirements for the job.

Wisconsin

All public employers

Public employers must remove questions about criminal information from their job applications and delay other similar inquiries until after they have determined that a candidate is qualified for the job in question.

 

*Note that states listed as having ban the box laws for “public employers that are part of the state government” have laws that only apply to state agencies or offices. Local governments—including city, town, township, or county offices—are not required to follow these laws.

For states listed as having banning the box requirements for “all public employers,” the legislation applies to all levels of government statewide.

There are 13 states that do not have this legislation of any type in places:

  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • South Carolina
  • South Dakota
  • Texas
  • West Virginia
  • Wyoming

Latest updates

Note that new ban the box laws are emerging regularly, both as state or county laws and as city ordinances. In some areas, these laws apply only to public government positions; elsewhere, they apply to both private and public employers. You will want to perform research about your area to learn the specifics of your local ban-the-box laws and find out whether your state or local jurisdiction is considering such a law.

For your reference, backgroundchecks.com’s ban the box document charts state and local restrictions on criminal inquiries and checks for non-governmental employers.

As you can see, these laws are complex and vary from one jurisdiction to another. Employers can keep up to date with recent banning the box developments by following our blog, which often covers topics related to the Fair Chance employment movement.

Currently, the Equal Employment Opportunity Commission (EEOC) is recommending that employers follow box-banning guidelines by eliminating questions about convictions from job applications and delaying checks–even when they are not required to do so by law.

We expect that these laws will only become more prevalent in the coming years, and we will keep you updated about the latest developments and trends.

Pros and cons of ban the box

pros-cons

Questions about the efficacy of banning the box often lead to a discussion about the trend’s pros and cons.

The primary advantage is that, on the surface, this policy can remove barriers to employment for ex-criminal offenders, giving them more of a chance to land stable jobs and work toward more stable lives. Since poverty is a factor that leads to criminal activity, this core “pro” of banning the box is a significant one.

However, there are also cons. We have already discussed the confusing nature of the patchwork legislation in the U.S., which can place an extra burden on employers and lead to accidental lapses in compliance.

Some studies also show that employers will compensate for being forced to abolish the box by requiring their candidates to have higher levels of experience or education or by hiring more white applicants than minority candidates. These maneuvers effectively replace one barrier with another.

What does my company have to do?

There is no one-size-fits-all answer to this question.

These laws vary significantly from one state or local jurisdiction to the next. While your business is statistically likely to be in a part of the country where such a law exists (NELP says that three-quarters of the U.S. population now “lives in a jurisdiction that has banned to box”), that doesn’t mean that your company is obligated to do anything right now.

Of the 36 states that ban in the box, only 14 of them extend their requirements to private entities (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).

20 areas–including Chicago, Baltimore, Los Angeles, New York City, San Francisco, Seattle, Philadelphia, St. Louis, and the District of Columbia–extend their protections to private jobs. Otherwise, most of these laws currently apply only to public employers.

You should take the time to research the legislative requirements in your state, county, and city or town. If a relevant law or ordinance is on the books, review the language of the law closely to determine whether it applies to your company. If you need help deciphering the law, our terminology page can help.

If the law does apply to your company, you will need to take the steps to comply–whether that means removing questions about criminal backgrounds from your applications, delaying your criminal checks until later in hiring, or something else.

Your business can also opt to abolish the box of its own accord. Some organizations have taken this step to signal that they are welcoming to individuals who have made mistakes in the past and are trying to rebuild their lives. Banning the box before you are legally required to do so can also put you ahead of the curve for compliance if your state or local jurisdiction does decide to end the box.

Does ban the box work?

There is debate about how effective this policy is in making employment more accessible for ex-offenders.

Champions say that it helps to reconfigure the mindset of employers and hiring managers in a powerful way, helping them to see beyond a person’s convictions to their skills and qualifications. According to a study conducted by the Urban Institute, these policies improve callback rates for people with criminal records, which means that they are effective for eliminating the tendency of hiring managers to immediately disqualify any candidate who self-identifies as having a criminal rap sheet.

That finding is significant, given the fact that–per the National Association for the Advancement of Colored People (NAACP)–a criminal background can reduce a person’s likelihood of a callback or employment offer by almost 50 percent.

However, critics of this legislation argue that it merely delays the moment in hiring when an employer would disqualify a candidate for a relevant criminal conviction, wasting both the candidate’s and hiring manager’s time. The Urban Institute study also found that banning the box has “reduced the likelihood that employers call back or hire young black and Latino men.”

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