New local and state ban-the-box laws are taking effect across the country. To date, 30 states, the District of Columbia, and more than 150 cities and counties have adopted a ban-the-box or fair-chance policy. And 10 states and 17 cities and counties extend their fair-chance laws to private employment. Keeping track of which local and state ban-the-box laws apply to your organization makes employment screening more complicated.
In this video (and accompanying blog), I’ll walk you through a few steps to help you determine what your obligations are, as an employer, under local ban-the-box laws.
What is Ban the Box?
In its most basic form, it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions). Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check.
Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. These measures are often also referred to as fair hiring policies.
Step 1: Determine if a Ban-the-Box Law Applies to You
Check to see if your organization or your prospective employees are in a ban-the-box jurisdiction. GoodHire’s guide to ban-the-box and fair hiring laws in all 50 states, plus DC, is straightforward and easy to use. If there’s a law in one of those locations, you will need to determine whether your organization meets the definition of an “employer” under the law—usually based on number of employees—then determine whether your candidate meets the definition of “employee.”
If your organization and your candidate meet those definitions, you’re going to have to follow the provisions of the ban-the-box law for that candidate.
Step 2: Find Out When You Can Run a Background Check
Most ban-the-box laws prohibit employers from running a background check prior to a conditional offer or a first interview. It’s important to check the timing provisions of the law so you know exactly when a background check is allowed.
Step 3: Find Out Which Criminal Records You Can Consider
Some ban-the-box laws prohibit the consideration of non-convictions or records older than seven years. Determine whether the law in your jurisdiction restricts what kinds of criminal records you can consider in your hiring decision.
Step 4: Scrutinize Adverse Action Requirements Carefully
Some ban-the-box laws require that a pre-adverse action notice include extra documentation or a specification of the criminal record that could lead to adverse action. Employers may also be required to use a specific form (this is the case for employers in New York City and Los Angeles), so work with your background screener to make sure your pre-adverse action notice is compliant.
Step 5: Determine Whether Adverse Action Waiting Periods Apply
Some ban-the-box laws specify special adverse action waiting periods that may apply to your jurisdiction. Federal law requires five business days, but some ban-the-box laws require longer waiting periods between pre-adverse and final adverse action, so work with your background screener to ensure the correct waiting period is followed.
Step 6: Best Practice: Perform an Individualized Assessment
Finally, make sure you’re performing an individualized assessment if required. When you’re ready to send your final adverse action notice, make sure to share the results of that assessment, if required, and include any additional language required under your specific ban-the-box law. (GoodHire’s Comments for Context helps you make confident, effective, and fair hiring decisions when a candidate has a criminal record.)
By following this framework, you’re more likely to be in full compliance with ban-the-box laws. If you use GoodHire, you’re already one step ahead! GoodHire’s integrated localized adverse action workflow handles the specific requirements of all the adverse-action rules that apply based on your location and your candidate’s location.
Get GoodHire’s easy-to-use guide to make ban-the box and FCRA adverse action compliance crystal clear.
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.