The process of hiring is complex. An employer must follow certain guidelines to bring new employees into their company or organization. Ban-the-box laws are just some of the requirements that businesses must abide by.
Ban-the-box laws and their associated movement have gained traction over the years. They have been developed at various federal, state, and local levels. Ban-the-box laws push to eliminate the checkboxes on job applications that require applicants to disclose prior criminal convictions.
Ban-the-box laws give all applicants a fair chance. But as an employer, you need to know how ban-the-box laws operate and how to follow them with your job applications and fair chance hiring processes.
Keep reading for more details on ban-the-box legislation and what it means for your organization.
What are Ban-the-Box Laws?
For years, the vast majority of job applications included questions about an applicant’s criminal history, often in the form of a checkbox. Applicants were required to complete this section. Many employers removed candidates that had any type of criminal history, instead of evaluating their qualifications first and giving them a fair chance.
Ban-the-box laws and related fair chance laws were created to help those with criminal records obtain meaningful employment.
In 1998, Hawaii was the first state in the country to pass a ban-the-box law prohibiting this type of discrimination on job applications. After this initial law passed, more states and cities followed the ban-the-box campaign in the decades that followed.
Today, at least 35 states and 150 cities and counties across the country have ban-the-box laws in place to breakdown the stigmas associated with prior convictions. Ban-the-box laws have become increasingly popular as the country pushes to reform the criminal justice system.
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What Do Ban-the-Box Laws Require?
With ban-the-box legislation, employers have rules that they must follow during the fair hiring process. If you don’t comply with ban-the-box, you are likely to be penalized. The extent of these penalizations will vary depending on where you operate.
Some ban-the-box violations may result in serious legal trouble. To avoid these consequences, you should stay up to date on ban-the-box laws that are relevant to your area and incorporate fair hiring practices.
Ban-the-box laws and other fair hiring laws may have you eliminate certain questions and sections of your job applications. You must modify them to comply with current fair hiring and equal employment opportunity guidelines.
Additional requirements and ban-the-box policies may also arise. The Equal Employment Opportunity Commission (EEOC) notes that organizations should:
- Refrain from posing questions regarding criminal history during interviews
- Limiting what situations warrant the use of conviction records in consideration
- Conduct background checks only after a provisional offer has been made
- Remove phrases like “background check required” from job ads
Why Are Ban-the-Box Laws Important to Employers?
Ban-the-box laws matter to employers because they allow businesses to expand their hiring pools and find the most qualified candidates, regardless of criminal history. When these types of discriminatory questions are present on an application, it may discourage someone with a conviction history from completing a job application, even if they’re the perfect fit for the job.
Without ban-the-box laws in place, both employers and employees miss out on valuable opportunities due to conviction history.
Which States Have Ban-the-Box Laws?
When it comes to where ban-the-box laws affect businesses, policy varies by state. Some cities and counties have their own requirements outside of state requirements. The distinctions can get confusing, but not impossible to recount.
Here are the states that currently have ban-the-box laws, but keep in mind that some cities and counties might have their own policies about conviction history:
Arizona: Applies to public employers. Requires that there are no criminal history inquiries before the initial interview.
California: Applies to public and private employers. Employers can’t conduct a criminal background check until a conditional job offer is made.
Colorado: Applies to state employment and licensing. No background checks are allowed until a conditional job offer occurs or a candidate is named as a finalist.
Connecticut: Applies to public and private employers. Requires that there are no criminal history questions on initial job applications.
Delaware: Applies to public employment. It requires that there are no criminal history inquiries before the initial interview.
Georgia: Applies to all public employers for the state. Requires that there are no criminal history questions on initial job applications.
Hawaii: Applies to public and private employers. No background checks are allowed until a conditional job offer occurs.
Illinois: Applies to public and private employers with more than 15 employees. There can be no criminal history inquiries before the first interview or after a provisional offer is made.
Indiana: Applies to state employers in the executive branch. There can be no criminal history inquiries unless crimes relate to the job at hand.
Kansas: Applies to public employers under the jurisdiction of the Office of the Governor. Requires there to be no criminal history questions on initial applications and a record can’t disqualify someone from an interview automatically.
Kentucky: Applies to state employers in the executive branch. There can be no criminal history inquiries until after the first interview.
Louisiana: Applies to certain state employment postings. There can be no criminal history inquiries before the first interview or after a conditional offer is made.
Maine: Applies to public and state government employers. Requires no criminal history inquiries on the initial job application.
Maryland: Applies to state employment and private employers with over 15 employees. There can be no criminal history inquiries until after the first interview.
Massachusetts: Applies to public and private employers. No criminal history inquiries on the initial employment application, as well as restrictions on certain types of inquiries later in the hiring process.
Michigan: Applies to public employers. There can be no criminal history inquiries before the first interview or after a conditional job offer is made.
Minnesota: Applies to public and private employers. There can be no criminal history inquiries before the first interview or after a conditional offer is made.
Missouri: Applies to public employers in the executive branch. Requires that there are no criminal record questions on initial job applications.
Nebraska: Applies to public employers. Criminal background questions can be asked after an employer determines a candidate meets all other qualifications.
Nevada: Applies to public employment. There can be no criminal history inquiries until a final interview (in-person) or until a conditional job offer is made.
New Jersey: Applies to public and private employers with more than 15 employees. There can be no criminal history inquiries until after the first interview.
New Mexico: Applies to public employment. States that there can be no criminal history inquiries until a candidate is announced as a finalist.
New York: Applies to public state employment. Requires that there are no criminal record inquiries before the first job interview. Additional rules relating to juvenile records.
North Dakota: Applies to certain public employers (except for schools). There can be no criminal history inquiries until the initial job interview.
Ohio: Applies to public employers. States that there can be no inquiries until a conditional offer has been made.
Oklahoma: Applies to state employment. No questions about criminal history can be included on initial job applications.
Oregon: Applies to public and private employers. There can be no criminal history inquiries before the first interview or until a conditional offer is made.
Pennsylvania: Applies to public employers for non-civil service positions within the governor’s jurisdiction. Requires that there be no inquiries on initial job applications. All employers must assess cases as they pertain to the job sought.
Rhode Island: Applies to public and private employers with more than 4 employees. No inquiries can happen until the first job interview or later on in the process.
Tennessee: Applies to state employment. Requires no criminal history inquiries about records on initial job applications.
Utah: Applies to public employers. There can be no criminal history inquiries before the first interview or until a provisional offer is made.
Vermont: Applies to public and private employment. Requires no criminal history inquiries about history until an interview or until a candidate has been deemed qualified.
Virginia: Applies to state employment in the executive branch. Inquiries can be made once a candidate is deemed otherwise qualified.
Washington: Applies to private and public employers. Inquiries can be made once a candidate is deemed otherwise qualified.
Wisconsin: Applies to public employers. Inquiries can be made once a candidate is deemed otherwise qualified.
How Does Ban-The-Box Impact Your Hiring Process?
In some regions, employers can still introduce background checks and inquire about a candidate’s criminal record but are required to do so much later in the hiring process. Some ban-the-box laws may prevent employers from delivering background checks unless it can be proven to be relevant to the position.
There is no doubt that ban-the-box and fair chance policies complicate the hiring process. There is currently no federal ban-the-box policy in place. Requirements vary from state-to-state and across cities and counties.
Ban-the-box may be difficult for companies that hire across multiple states. Do you align all your job applications and hiring practices or do you vary them by the state? Detailed planning in situations like this is critical.
Some critics of ban-the-box laws have suggested that these laws open the door for companies to hire dangerous criminals. And as a result, they can be sued or penalized for negligent hiring of those with conviction records.
However, this is a common misconception of the ban-the-box campaign. Banning the box on a job application doesn’t mean that dangerous people will start working for your company. It’s just giving all qualified candidates a fair chance at employment before criminal history is revealed.
One of the best things you can implement as a part of your fair chance practices is something called an individualized assessment. It is an important element of the ban-the-box movement.
What is Individualized Assessment?
As part of the Equal Employment Opportunity Commission’s 2012 guidelines, companies are encouraged to perform what is known as an individualized assessment on candidates with a criminal history as a part of their efforts
This process asks employers to go over the specifics of an individual candidate’s criminal history in relation to the job they are seeking. An employer notifies a candidate about their potential denial based on their criminal records. An employer allows the candidate to explain why the exclusion should be dismissed in the context of their conviction history.
Individualized assessment promotes the idea that candidates should be judged outside of their conviction history or at least within the context of those crimes. That context could be related to the duties of the open job in question, the candidate’s rehabilitation efforts, and more.
Here are a few of the questions that you should ask when conducting an individualized assessment:
- Does the nature of the criminal history relate directly to the duties and nature of the job sought? Is there anything about the nature of the crime that would impact the individual’s ability to perform this job?
- Has the candidate held a similar job before and have they done so since they were convicted?
- How much time has passed since the individual was convicted or served their sentence? (Some areas only allow employers to consider recent convictions)
- Did the candidate complete their sentence and what was their conduct like during that sentence?
Has the candidate been working towards rehabilitation? For example, have they pursued education or training?
- What were the circumstances surrounding the offenses in their conviction history?
- How many offenses have the candidate has been convicted for?
- Does the candidate have strong employment or character references that they can provide?
Take the Proper Steps to Comply with Ban-the-Box Laws
As you incorporate ban-the-box laws, research how they will affect you and your business. How the laws affect you depends on a variety of factors, including:
- The nature of your business
- Where you operate
- The size of your business
- Whether it’s public or private
One you understand ban-the-box in your hiring states, adjust your applications and interview processes to reflect fair hiring. You will also want to ensure that any background checks you run comply.
Once you pass all the requirements, make sure to train your hiring managers in the new techniques. While making these changes, you should consult employment attorneys and other HR professionals that are well-versed in ban-the-box laws.
Ensuring Your Background Check Procedures Are Correct
If you want to review your background check program for ban-the-box compliance risks, get in touch with one of our experts at ScoutLogic. We can help you identify areas in your program that may need adjustment so you can get back to finding the best candidates.
ScoutLogic is not a law firm. You should always check with qualified counsel before you make any changes to your background check program. If you need a qualified attorney, we would be happy to make a referral for you.