Ban the Box

Shalie Reich
Shalie Reich
Have you ever reviewed a job application, seen that the applicant had a criminal history, and hastily placed that application on the “reject” pile? We all have knee-jerk reactions, but the Ban the Box movement asks us to assess candidates on their qualifications rather than their histories. Removing that bias in the initial steps of candidacy may find you some great employees you would otherwise not consider. Read on to find out about the “Ban the Box” movement and if it applies to your organization.

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What is ‘Ban the Box?’

Ban the Box is a law that requires employers to remove questions about criminal history on employment applications. Its name refers to the checkbox that asks if a candidate has ever been convicted of a crime. Currently, 37 states and over 150 cities and counties have implemented Ban-the-Box laws to encourage employers to consider a candidates’ qualifications before any bias from reviewing conviction or arrest records plays into the employment decision.

History of Ban the Box Laws

Ban the Box started in Hawaii in 1998. In 2012, the Equal Employment Opportunity Commission (EEOC) supported the Ban the Box movement, giving momentum to acceptance on a federal level. In November 2015, President Obama made a statement in support of Ban the Box laws, encouraging federal agencies to delay asking about an applicant’s criminal history until later in the hiring process.

In December 2019, Congress passed the National Defense Authorization Act (NDAA), which included the Fair Chance Act. Therefore, as of December 20, 2021, federal agencies and contractors are prohibited from requesting criminal background information from applicants prior to extending a job offer (with a few exceptions that we will evaluate later).

What Employers Must Comply With Ban the Box?

Each state with current Ban the Box laws has unique requirements for  employers’ compliance. Here’s a high-level overview.

Public Employers

In most states, Ban the Box is specific to public employers. If your organization provides public services, more than likely Ban the Box applies to you.

Private Employers

Fewer states require private employers to comply with Ban the Box (as of this writing, 13). Check with your state Department of Labor or Office or Attorney General to be sure.

Federal Contractors

The Fair Chance Act takes “ban the box” to the next level for federal contractors. In the past, a background check would be performed just before a job offer was extended, but now, that cannot be completed until after the offer is extended. It also disallows any “digging around” to find this information from other avenues. There are a few exceptions to this act. Federal contractors can verify criminal history prior to an offer if:

  • A criminal background check is otherwise required by law.
  • The job requires the employee to access classified information or includes national security or sensitive law enforcement duties.

How to Ensure Compliance With Ban the Box Laws

These laws are ever-changing and vary state to state. Here’s how to stay compliant if Ban the Box applies to you.

Internal Audit

Evaluate all forms, interview questions, policies and procedures to make sure you comply with any Ban the Box legislation in your area.

Internal Policies

Incorporating internal policies that support the Ban the Box laws of your jurisdiction is a great way to protect your organization. Your internal policy supports the legislation and clarifies your intent and process to your employees.

Individualized Assessment

What happens if you offer a job to a candidate and then discover a criminal history? Each applicant should be assessed individually. Consider these factors to remain in compliance and avoid discrimination:

  • Does the criminal history relate directly to the nature of the job?
  • Is there anything about the nature of this crime that impacts the candidate’s ability to do the job?
  • Has the candidate held a similar job since they were convicted?
  • How much time has passed since conviction?
  • How many convictions does the candidate have?
  • Can the candidate provide strong character or employment references?

Training

Implementing Ban the Box requires training hiring managers and interviewers. While HR personnel usually review applications and do first-round interviews, that’s not always the case. Make sure to provide managers, or those interviewing at any level, the appropriate knowledge and tools to protect themselves, the candidate, and the organization.

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Questions You’ve Asked Us About Ban the Box

Do Ban the Box laws apply to screening prospective volunteers, or only prospective employees?
Ban the Box laws typically do not apply to volunteers. Volunteer screening falls under FCRA (the Fair Credit Reporting Act), which can bring its own set of challenges. Screening volunteers requires their consent and must follow the federal adverse action process, if it becomes necessary.
Where do I go to see the most up-to-date Ban the Box laws for my state?
The best place to look for the most up-to-date hiring laws would be the Department of Labor site specific to your state. Be sure to search for “criminal history” versus “ban the box,” as some states specify it differently.
Shalie Reich
Shalie Reich

Shalie has over 4 years of experience working in a variety of HR positions and organizations including: working as an HR department “of one”, working with a start-up based in Europe, to working in a fully established robust USA based HR department. Shalie has experience in multiple states and countries with all aspects of the HR spectrum. She has a passion to share her knowledge and experience to benefit the HR profession!

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