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.

Beyond Compliance: Getting Ahead of the Curve With Ban the Box

Below are reasons why employers should get on board with Ban the Box.

Get Ahead of the Trend

History has shown that when laws and policies get adopted and gain momentum by local municipalities and states individually, it is only a matter of time before those laws and policies get adopted nationally. An interesting case is in privacy legislation. The General Data Protection Regulation (GDPR) was enacted in 2018 for the European Union (EU) and served as inspiration for the California Consumer Privacy Act (CCPA) effective in 2018, as well as Virginia’s Consumer Data Privacy Act (CDPA) and the Colorado Privacy Act (CPA), both effective in 2023.

It is not a matter of if, but when compliance is mandatory. Therefore, to increase coverage of doing business anytime and anywhere, organizations should prepare for the inevitable. 

The same premise exists for Ban the Box, with the exception that it already has adoption for public jobs and federal contractors. Private employers should adopt Ban the Box policies sooner rather than later to reap the benefits of this untapped talent pool. Those with criminal records have less absenteeism and are more loyal employees. According to a recent study, the yearly turnover rate for this talent pool is 12.2% lower than those without criminal records. Furthermore, 82% of hiring managers agree that candidates with criminal records are equal to or better than candidates without. 

Do Right by Doing Good

In a paper published by UCLA researchers in 2020, nearly 28% of formerly incarcerated people will be unemployed after prison, the majority disproportionately people of color. When organizations commit to Fair Chance hiring, they commit to diversity, equity, inclusion, and access for those underprivileged by removing the stigma of criminal records and putting the focus on skills-based hiring. As a professional, focus on hiring the best person for the job, not charity.

Boost the Economy

Lastly, fair chance hiring is good for the economy. It decreases unemployment and increases economic output. Individuals and families have more income to spend, which increases revenues for companies. It also helps increase public safety by positively occupying people’s time with productive activities and avoids the old adage “One who is idle will likely come to do evil.” People want to work. Give people work.