When I talk with employers and customers about background check compliance, the questions I’m asked most frequently are about ban-the-box and fair hiring laws. And for good reason—ban-the-box laws have created new legal requirements for employers that use background checks, and since a patchwork of 35 states and more than 150 cities and counties have ban-the-box legislation in effect, knowing which laws to follow makes compliance a major challenge.
In this blog, I’ll answer five common questions about ban-the-box laws and background check compliance.
Q: On the job application, can we ask if they have been convicted of a crime?
You may ask this question if you are in a jurisdiction that DOES NOT have a ban-the-box law in effect. However, if you are in a jurisdiction (state, county, or city) with a ban-the-box law in effect that applies to your business, you must delay the criminal history inquiry (the box applicants check or don’t check) until later in the hiring process. Depending on your jurisdiction, some ban-the-box laws may require you to delay the background check until after a conditional offer is made.
Ban-the-box laws are designed to allow individuals with criminal records the opportunity to present their true qualifications for jobs, and for employers to consider their applications in light of those qualifications, without having a criminal history prejudice the process.
As ban-the-box laws continue to be enacted in new jurisdictions, it’s only a matter of time before most states enact a version of the law. A proactive compliance best practice is to remove prior conviction questions from your applications. Learn about your state’s laws.
Q: If my company is based in Massachusetts, and I’m screening candidates in California, will GoodHire recognize their home address and implement any restrictions on the background check based on the local and state laws where they live?
Yes, that’s one of the advantages to using GoodHire! Since ban-the-box laws may apply to both the employer’s location AND the candidate’s location, GoodHire’s built-in, localized adverse action workflow is designed to recognize the company location, the work location, and the candidate’s location, and apply the strictest rule set from all jurisdictions. We take a complex process and automatically guide you through it step-by-step.
Q: What are the waiting periods for adverse action, and do ban-the-box laws affect them?
The adverse action waiting period is the amount of time an employer must wait between sending a pre-adverse action notice and a final adverse action notice.
Under federal law (FCRA), an employer must wait at least five business days after sending a pre-adverse action notice before sending the final adverse action notice. State and local ban-the-box laws can extend this waiting period, but those extensions vary by jurisdiction.
For example, if the ban-the-box law in your state requires seven days between pre-adverse action and final adverse action notices, you must wait seven days even though the FCRA only requires five. Moreover, if your ban-the-box law requires a two-day waiting period, you still must wait the full five days the FCRA requires. For more information about the adverse action process, download our decision guide.
Q: Do ban-the-box laws also affect the language employers are allowed to include in job postings?
Yes, a few jurisdictions specifically prohibit employers from including language in job postings that “ask” applicants about their criminal history.
For example, New Jersey, New York City, Washington, and Wisconsin’s ban-the-box laws specifically prohibit job postings or advertisements that state: “background check is required,” “clean criminal history,” “no felons,” “no criminal background,” or any language that expresses any limitation in the hiring of an individual, directly or indirectly, based on his or her arrest or criminal background.
While the majority of ban-the-box laws do not expressly prohibit such language in job postings, use of such language could come under scrutiny by the EEOC, which views prior conviction questions with suspicion.
Q: Do these laws apply to screening of prospective volunteers or only prospective employees?
Volunteer screening falls under the employment provisions of the federal FCRA. However, ban-the-box requirements typically don’t apply. So there is a tad bit less complexity around conflicting rules, but FCRA compliance and state law compliance can be challenging enough on its own. Be sure to follow the FCRA, obtain consent on a clear and conspicuous consent form, and follow the federal adverse action process when using screens on volunteers.
If In Doubt, Apply the Most Strict Laws
As an employer, it’s your responsibility to understand your legal ban-the-box obligations, and build a compliant framework for following ban-the-box requirements at federal, state, county, city, and town levels. When compliance laws overlap, it’s best to apply the most strict laws to help mitigate risk for FCRA litigation or scrutiny by the EEOC. We’ve also created this helpful flow chart to help you determine which laws you have to follow—even when the rules seem to clash.
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.