Ban the Box

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.