It is important to examine your company's policies for seeking information on criminal history of job candidates. Many states and cities have legislation on when this information can be requested.
Landing a job can be a difficult process, and it's even harder for those who have a criminal history. For years, most job applications asked whether the candidate had ever been convicted of a crime. Job seekers having to answer this question, without the ability to provide any context to their answer, often gave employers a quick reason to discard the application and move on to the next.
In an effort to give job candidates who have been convicted of a crime the chance to make a good first impression, a movement to get employers to stop including this question on job applications started – called Ban the Box. It is important for employers to understand what Ban the Box is, how it started and the laws that now surround it.
What is Ban the Box?
Traditional employment applications include a question on whether a candidate has been convicted of a crime. There are usually two boxes – one for yes, the other for no. The job applicant is required to check one. But "the box" is said to be an unreasonable employment barrier to people with criminal histories.
Social justice advocates and employment experts say those convicted of crimes should be allowed to prove their qualifications for a job instead of being eliminated early in the process. With this in mind, there has been a push over the past two decades for employers to remove this type of question from the initial job application and instead ask it later in the hiring process. In theory, this gives job candidates the chance to make their initial case for why they should be hired. It lets them be evaluated on their qualifications, rather than on their criminal convictions, which may or may not give insight into the type of employee they would be.
What started Ban the Box?
Ban the Box is a movement in response to soaring rates of incarceration in the United States over the past few decades. Data from the National Conference of State Legislatures shows that an estimated 1 in 3 Americans have a criminal record.
The box is said to discriminate against Black and Hispanic males, according to the NCSL. Because of factors such as economic disadvantage, racial profiling and long-standing prejudices, these demographics have higher rates of criminal history than, for instance, white males. Thus, they are more likely to be rejected for employment if an application asks about criminal history.
In 1998, Hawaii became the first state to enact specific legislation on when employers could inquire about a job candidate's criminal history. However, it wasn't until six years later that the Ban the Box movement started. In 2004, All of Us or None, a national civil rights movement of formerly incarcerated people and their families, launched the Ban the Box campaign to give convicted criminals a better chance of finding work after their time in jail or prison.
"The campaign challenges the stereotypes of people with conviction histories by asking employers to choose their best candidates based on job skills and qualifications, not past convictions," the group writes on its website.
The movement initially focused on public employers, like government agencies, but eventually expanded to include private employers as more organizations joined the movement.
Is Ban the Box effective?
A study by the Collateral Consequences Resource Center found that Ban the Box laws are "generally effective in increasing employment opportunities for people with a criminal history."
But not all studies have confirmed the effectiveness of Ban the Box. The U.S. News & World Report found some studies that show Ban the Box laws could have a negative impact.
"When employers aren't allowed to ask about applicants' criminal background early in the hiring process, they may be more likely to assume certain applicants – especially black and Hispanic men – have a criminal history, denying jobs to qualified applicants who don't have a criminal history," wrote Casey Leins in the article, summarizing the findings.
Despite this risk, many advocates claim Ban the Box is an important step on the road to fairness in hiring.
What states and municipalities ban the box?
No state entirely prohibits employers from asking about criminal convictions. However, according to the National Employment Law Project (NELP), 36 states have enacted Ban the Box laws, with varying scope, requirements, exceptions and penalties for violations (often fines amounting to thousands of dollars). As the first state to pass legislation restricting when public and private employers can ask about a past criminal conviction, Hawaii has been a leader in the Ban the Box movement.
Another leader is California. In 2018, the state passed the California Fair Chance Act, which forbids employers with five or more employees to ask about criminal history until they have made a conditional offer of employment to the applicant. California employers must also take these steps:
- Warn candidates if they are considering rejecting them because of their criminal history.
- Hold the job open for five days to give candidates a chance to respond.
- Notify candidates when they are rejected because of criminal history.
Although many states have banned the box only for public employers, a considerable number has banned it for private employers as well. Here is a breakdown of states, and some cities and counties, with Ban the Box laws that apply to private employers. To ensure full compliance with these laws and ordinances, employers are encouraged to seek advice from their legal counsel.
- California: Employers with five or more employees must make a job offer before conducting a background check or asking the applicant about previous criminal convictions.
- Colorado: Employers are prohibited from asking about criminal history in an initial job application.
- Connecticut: Employers are prohibited from asking about criminal history on job applications, with some exceptions.
- Hawaii: Employers are prohibited from conducting background checks until after they've made a job offer. They may then ask only about felony convictions within the past seven years and misdemeanors within the past five (excluding periods of incarceration).
- Illinois: Employers with at least 15 employees are prohibited from conducting background checks before holding a job interview. If there is no interview, they may conduct a background check only after making a job offer.
- Massachusetts: Employers are banned from asking about criminal history on job applications, and from asking about certain crimes later in the hiring process.
- Minnesota: Employers are prohibited from asking about criminal history on job applications (with a few exceptions).
- New Jersey: Employers are banned from asking about criminal history during the "initial employment application process."
- Oregon: Employers cannot deny applicants an interview solely because of a past criminal conviction.
- Rhode Island: Employers with at least four employees are prohibited from asking about criminal history on job applications.
- Vermont: Employers are prohibited from asking about criminal history on job applications.
Washington state: Employers are prohibited from conducting background checks until they have deemed an applicant otherwise qualified.
- Washington, D.C.: Employers are prohibited from conducting background checks until after making a job offer.
In addition to these states, according to NELP, some 150 local jurisdictions have ordinances regulating inquiries into a job applicant's criminal history. When state laws and local ordinances are considered together, roughly three-fourths of the U.S. population lives in a Ban the Box jurisdiction.
These are some city and county ordinances in states that don't already have Ban the Box laws for private employers:
- New York City: The city's Fair Chance Act bans businesses with four or more employees from conducting criminal background checks before making a conditional offer of employment. The city's law is stronger than New York state's, which applies only to public employment.
- Louisville, Kentucky: The city may end contracts with companies that do not ban the box.
- New Orleans, Louisiana: Contractors doing business with the city are prohibited from asking about criminal history on job applications.
- Baltimore, Maryland: Businesses with 10 or more employees are prohibited from conducting background checks until they've made a job offer.
- Detroit, Michigan: Companies doing business with Detroit (with contracts over $25,000) are prohibited from asking questions about criminal convictions until they have conducted an interview or deemed the candidate otherwise qualified.
- Kansas City, Missouri: Private employers with at least six employees are prohibited from conducting criminal history checks until after job interviews.
- St. Louis, Missouri: Private employers with at least 10 employees cannot conduct criminal history checks until after job interviews. When making hiring and promotion decisions based on criminal record, employers must demonstrate that the decision is based on all available information. Hiring forms and job advertisements must not exclude applicants based on criminal history.
- Philadelphia, Pennsylvania: All employers with at least one employee are prohibited from conducting background checks prior to a job offer.
- Pittsburgh, Pennsylvania: Contractors and vendors doing business with the city are prohibited from conducting criminal history checks before deeming an applicant otherwise qualified.
- Austin, Texas: Employers with at least 15 employees are prohibited from conducting criminal background checks before making a job offer.
- Madison, Wisconsin: Contractors doing business with the city (on contracts worth at least $25,000) are prohibited from asking criminal history questions or conducting background checks before making a job offer.
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Is there a federal Ban the Box law?
The federal Fair Chance Act is scheduled to take effect on Dec. 20, 2021. If you are a contractor with the U.S. government, you will be required to make a conditional offer of employment before requesting information on an applicant's past criminal convictions.
The law also applies to employment in all federal agencies, with exceptions for jobs involving access to classified information or "sensitive law enforcement or national security duties."
Why should companies ban the box?
Job seekers with criminal histories might be applying to your company. Some of them might be the best people for the job. So, even if you're not in a Ban the Box jurisdiction, you may want to consider enacting your own company policies. Hiring these candidates could contribute to your company's profitability as well as social justice.
Here are three factors to consider if you're deciding when (or whether) to ask about a candidate's criminal history:
- The relevance of the conviction to the job
- The time elapsed since the conviction
- The applicant's job history and behavior since the conviction
Discussions of Ban the Box should involve your human resources team, executives, and perhaps even the direct supervisors of those who will be joining your company.
What companies have banned the box?
U.S. companies that have banned the box or taken other initiatives on behalf of job seekers with criminal histories include American Airlines, Coca-Cola, Facebook, Google, Greyston Bakery, Koch Industries (including Georgia-Pacific), the Libra Group, PepsiCo, Plank Industries (including Under Armour), Prudential Financial, Starbucks, Uber and Unilever.
What other laws should employers be aware of?
The U.S. Equal Opportunity Employment Commission requires you to obtain a job applicant's written permission before conducting a background check on them. It also issued guidance on Ban the Box in 2012. The EEOC says employers that base hiring decisions on an applicant's arrest or conviction record may violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. [Read related article: How the EEOC Impacts Small Businesses]