Ban the Box

Elizabeth McLean

Most HR professionals are familiar with the term ban the box, as it’s an issue that’s made national headlines. Less familiar, however, are the complexities of the associated fair chance laws. As the ban-the-box movement gains traction, more and more states are adopting laws that apply to both public and private employers.

As a result, compliance is increasingly more challenging, especially for multi-state employers. Despite the challenges, compliance is critical, as private corporations are paying significant penalties. Read on to understand what ban the box means for employers, get an overview of state laws, and find out what you can do to ensure compliance for your organization.

What is Ban the Box?

Ban the box is a national campaign designed to ban employers from asking questions regarding an applicant’s criminal history on initial job application forms. Promoted by advocates for people with records, ban-the-box laws and policies aim to remove the stigma associated with previous convictions and give all applicants a fair chance at employment.

The history of ban the box goes back to 1998, when Hawaii passed a law prohibiting employers from asking job applicants about their criminal history. The movement has been gaining traction ever since, with advocates saying that it is more important than ever, given stricter sentencing laws, and increased dependence on background checks since 9/11.

There are an estimated more than 70 million Americans with arrests or convictions who may have difficulty finding a job, even when highly skilled. Research shows that employment is a significant factor in reducing recidivism. Advocates of ban the box contend that these policies are not only beneficial for job seekers who have a criminal history, but are also good for the economy, as they help put people back to work.

Many industry groups, however, have criticized the ban-the-box campaign as they say it exposes companies to potential crime. Critics also contend that it increases the possibility of litigation and penalties, and significantly complicates the hiring process.

Despite the controversy, the movement continues to gain momentum, and today, there are 35 states and over 150 cities and counties across the country that have adopted ban-the-box laws. For the majority of these states, the regulations cover public sector employment; however, 13 states have mandated removal of any conviction history questions from job applications for private employers.

Also, there are several private-sector employers, including Starbucks, Facebook, Walmart, and Target, who have adopted ban-the-box policies before being mandated to do so.

Ban the Box and Fair Chance

Fair chance and ban the box are often used interchangeably, but reference different aspects of the hiring process. Ban the box is a campaign that was explicitly initiated to eliminate the check box on employment applications that asks candidates whether they have any prior convictions.

Fair chance policies do more than ban the box; many fair chance laws incorporate best practices outlined in the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance, including:

  • Delaying background checks and any records-related inquiries until after making a conditional offer
  • Banning employment ads that say “background check required”
  • Eliminating questions regarding criminal history during job interviews
  • Imposing restrictions on an employer’s consideration and use of criminal convictions

While these policies vary from state to state, in general, they provide a better chance at employment for people with records. They go beyond removing the conviction history questions from job applications, and delay background checks until later in the hiring process, ensuring that potential employers consider skills and qualifications first.

What Does Ban the Box Mean for Employers?

For private employers, compliance can be challenging. Since there is no federal ban-the-box statute, and policies vary between jurisdictions, companies that hire across the country must comply with a variety of regulations.

Another dilemma for HR and hiring managers is finding the balance between giving applicants with prior convictions a fair chance and potentially becoming liable for negligent hiring. Organizations across the board are responsible for ensuring a safe working environment, and many consider knowledge of applicants’ conviction history to be essential for that purpose.

Ban-the-box policies do not forbid employers from running background checks, but some require a delay in obtaining one until after the first job interview, or a conditional offer of employment is made. Several states also have laws that impose restrictions on an employer’s ability to use credit history in making employment decisions.

In some jurisdictions, employers face restrictions on how the information obtained in a background check, or credit check, can be used. Some require applicants to get additional notice, and in some localities, applicants have the right to appeal employer decisions based on criminal history.

While it’s possible to disqualify applicants based on criminal history, depending on the jurisdiction, there may be restrictions to be aware of. Hiring managers may wish to withdraw a conditional offer of employment, but in some localities, withdrawal is limited. For example, it is typically permissible to withdraw an offer of employment when a background check indicates a criminal conviction that directly affects the applicant's ability to perform the job in question.

Since publishing its list of best practices in 2012, the EEOC has started to bring claims against employers for violating ban-the-box laws. State attorneys general may also enforce ban-the-box laws. Two major retailers, Marshall's and Big Lots paid significant penalties for continuing to ask applicants about their criminal history on initial employment applications. Continued enforcement of similar laws in New York, Washington, and other municipalities have served as a wake-up call for organizations to bring their hiring practices into compliance.

ban-the-box-map-1

Ban-the-Box States

As they vary significantly from state to state, it’s critical to understand the laws that affect your organization. The following charts provide an overview of ban-the-box state laws.

For an in-depth look at ban-the-box and fair hiring laws, see our ban-the-box guide for more state, county, and local jurisdiction details.

States with Ban the Box Laws

State

 

Covered Employers

Details

Arizona

 

Public, state agency employers

No criminal history inquiries prior to initial job interview

California

 

Any employer with five or more employees

Criminal background inquiries prohibited until after conditional job offer

Colorado

 

Public, state agency employers

No background check prior to conditional employment offer or candidate has been named a finalist

   

Effective September 1, 2019, for all private employers with 11 or more employees; effective on or after September 1, 2021, for all private employers

No criminal history questions on initial job applications 

Connecticut

 

All employers

No criminal history questions on initial job applications 

Delaware

 

Public employers

No criminal history inquiries or background check prior to initial job interview

Georgia

 

Public employers for the State of Georgia

No criminal history questions on initial job applications

Hawaii

 

All employers

No criminal history inquiries prior to conditional employment offer

Illinois

 

Any private employer with 15 or more employees and public-sector employers for the State of Illinois

No criminal history inquiries prior to initial  job interview, or after the conditional job offer if there is no interview

Indiana

 

Public employers in the state’s executive branch

No criminal history inquiries unless a particular crime precludes applicant for employment in particular job

Kansas

 

Public employers under jurisdiction of the Office of the Governor

No criminal history questions on initial job applications and a criminal record may not automatically disqualify a candidate from receiving an interview

Kentucky

 

Public employers in the executive branch for the State of Kentucky

No criminal history inquiries until after offering initial job interview 

Louisiana

 

Public employers for the State of Louisiana hiring for an “unclassified” position

No criminal history inquiries until after initial job interview or conditional job offer if no interview is conducted

Maine

 

Public sector, state government employers

No criminal history questions on initial job applications

Maryland

 

Public employers

No criminal history questions until after first interview

Massachusetts

 

All employers

Prohibits criminal history questions on initial application form, but also bans inquiries about certain types of crimes later in the hiring process

Michigan

 

Public employers

No criminal history inquiries until after initial job interview or conditional job offer

Minnesota

 

All employers

No criminal history inquiries until after initial job interview or conditional job offer if there is no interview

Missouri

 

Public employers in the executive branch of the State of Missouri

No criminal history questions on initial job applications 

Nebraska

 

Public employers

No criminal history questions  until the employer has determined the applicant meets the minimum employment qualifications

Nevada

 

Public employers

No criminal history inquiries until after a final in-person job interview or conditional job offer

New Jersey

 

All employers with at least 15 employees

No criminal history inquiries until after initial job interview 

New Mexico

 

Public employers

No criminal history inquiries until applicant has been named a finalist

   

Private employers

No criminal history questions on initial job applications

New York

 

Public employers

No criminal inquiries prior to initial job interview

   

All employers

No criminal history questions related to a Youthful Offender Adjudication or any arrest that was processed as a Juvenile Delinquency proceeding in Family Court or any sealed arrest or conviction records, unless specifically required or permitted by NY state law

North Dakota

 

Public employers (excluding school districts)

No criminal history inquiries until initial job interview

Ohio

 

Public employers

No criminal history questions  before conditional job offer

Oklahoma

 

Public, state agency employers

No criminal history questions on initial job applications

Oregon

 

All employers

No criminal history inquiries until after initial job interview or conditional job offer if there is no interview

Pennsylvania

 

Public employers hiring for non-civil service positions falling under the governor’s jurisdiction

No criminal history questions on initial job applications

   

All employers

Employers should only assess pending cases and felony and misdemeanor convictions and must assess whether convictions relate to suitability for employment in the specific position

Rhode Island

 

All public employers for the State of Rhode Island and any private employer with four or more employees

No criminal history inquiries until initial job interview or later

Tennessee

 

Public employers

No criminal history inquiries on initial job applications

Utah

 

Public employers

No criminal history inquiries until initial job interview or conditional job offer if there is no interview

Vermont

 

All employers

No criminal history inquiries until an interview or until applicant is deemed otherwise qualified for a position

Virginia

 

Public employers in the executive branch

No criminal history inquiries until applicant is deemed otherwise qualified for a position

Washington

 

All employers

No criminal history inquiries before job applicant is deemed otherwise qualified for a position

Wisconsin

 

Public employers

No criminal history inquiries until applicant is deemed otherwise qualified for a position

 

The chart below includes states that do not currently have a state-wide ban-the-box mandate in place. Some of these states have city- or county-level policies; see our ban-the-box guide for details.

States without Ban the Box Guidance 

Alabama

Idaho

New Hampshire

Texas

Alaska

Iowa

North Carolina

West Virginia

Arkansas

Mississippi

South Carolina

Wyoming

Florida

Montana

South Dakota

 

 

Ban the Box and Your Hiring Process

While many ban-the-box laws apply only to public sector employers, blanket ban-the-box laws impacting all sectors are on the rise. These laws present complexities for employers and continue to be controversial in some parts of the country. However, there is no doubt that more states and counties are adopting these laws, and that organizations who do not comply are facing stiff penalties.

HR professionals and hiring managers need to stay informed to ensure they are in compliance. GoodHire’s automated compliance feature can help. Additional next steps include:

  • Review ban-the-box and fair chance laws in the states and municipalities in which you recruit employees
  • Revise job applications and interviewing guidelines in accordance with the laws
  • Ensure policies and procedures for background checks comply
  • Change the sequencing of events in the hiring process as required
  • Implement guidelines that comply with the law and train hiring managers

Best-practice guidance is to adopt the policies in the most stringent jurisdiction and use them as a model for the whole organization. HR professionals are also advised to have procedures reviewed by experienced employment attorneys to ensure compliance throughout the hiring process.

For organizations that hire across multiple states and counties, compliance can be tricky. Find out how we make it simple.

 

Disclaimer: 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.

Elizabeth McLean

Elizabeth McLean

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Elizabeth McLean is GoodHire's General Counsel, an FCRA-compliance attorney and expert in the background screening legal landscape. She monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance best practices.

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