Ban the box legislation prevents employers from asking about criminal history of job applicants in the initial phase of the hiring process.

by Sarah Pack

In May, Delaware joined California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, and Rhode Island in requiring employers to remove from employment applications any questions regarding previous criminal convictions and to delay criminal background checks until later in the hiring process. These “ban the box” policies have gained increasing momentum in recent years with legislation pending or executive orders expected this year in another six states and policies in place in over 60 cities and counties nationwide as of July 2014. The majority of the twelve states that have passed “ban the box” legislation or implemented the policy via executive order have limited its application to public employment. However, Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island have extended the practice to private employers. All five of the states likely to implement ban the box legislation this year will require private employers to remove criminal history inquiries from their employment applications.

Source: National Employment Law Project Resource Guide Statewide Ban the Box: Reducing Unfair Barriers to Employment of People with Criminal Records (May 2014).

With over 65 million Americans having an arrest or conviction record, “ban the box” reforms aim to reduce economic losses that often result from lowered job prospects and decreased annual earnings for individuals with convictions and their families. The policy also seeks to reduce recidivism rates by removing barriers to stable employment, ensuring an applicant with a criminal past is evaluated first on his or her skills and qualifications. “Ban the box” policies do not, however, prevent an employer from considering the criminal background of prospective employees entirely. Instead, they simply delay the inquiry. Many states require waiting to do a criminal background check until after the first interview or after a conditional job offer has been extended; others only require a determination that the applicant has the minimum qualifications to be considered for the position sought before looking into the criminal background. Once criminal backgrounds are reviewed however, many of these jurisdictions require that any adverse employment decision based on the results be supported by a finding that there is a relationship between the position sought and the criminal history revealed.

If you have employees in any of the states, counties, or cities that have or are considering “ban the box” laws, consult legal counsel to determine how best to revise your employment applications and hiring procedures to comply with these laws and reduce your exposure to liability for discriminatory employment practices.