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What Are Ban-The-Box Laws?

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Written by David Garcia

@davidgarcia
What is Ban the Box Laws-1

Recruiters are faced with a confusing array of legislation when it comes to background checks.  Ban-the-box laws can add to the compliance confusion, as there are so many variations in federal, state, and even municipal laws. Ban-the-box laws are designed to eliminate the check box on employment applications that asks candidates whether they have any prior convictions. Ban-the-box policies do not forbid employers from running background checks, but some require a delay in obtaining one until after the first job interview, or a conditional offer of employment is made. This article provides an overview of ban-the-box laws to help educate employers and improve compliance.

What are Ban-the-Box laws?

Ban-the-box laws prohibit employers from asking about a person's criminal history on a job application. Ban-the-box laws are designed to remove the stigma that is associated with previous convictions and give all applicants a fair chance at employment. Many state- or city-specific laws both remove the conviction history questions from job applications and delay background checks until later in the hiring process, ensuring that potential employers consider skills and qualifications first. These laws have many different variations depending on the jurisdiction, so it is important to work with an attorney who is familiar with these complexities. 

Why are Ban-the-box laws important to employers?

Fair chance policies do more than Ban-the-box; many fair chance laws incorporate best practices outlined in the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance, including:

  • Delaying background checks and any records-related inquiries until after making a conditional offer
  • Banning employment ads that say “background check required”
  • Eliminating questions regarding criminal history during job interviews
  • Imposing restrictions on an employer’s consideration and use of criminal conviction

 

Since publishing its list of best practices in 2012, the EEOC has started to bring claims against employers for violating ban-the-box laws. State attorneys general may also enforce ban-the-box laws. Two major retailers, Marshall’s and Big Lots, paid significant penalties for continuing to ask applicants about their criminal history on initial employment applications. Continued enforcement of similar laws in New York, Washington, and other municipalities has served as a wake-up call for organizations to bring their hiring practices into compliance.


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Which states have Ban-the-box laws?

As the laws vary significantly from state to state, it’s critical to understand those that affect your organization. The following charts provide an overview of states that currently have ban-the-box laws.

STATES WITH BAN-THE-BOX LAWS

State

Covered Employers

Details

Arizona

Public, state agency employers

No criminal history inquiries prior to initial job interview

California

Any employer with 5+ employees

Criminal background inquiries prohibited until after conditional job offer

Colorado

Public, state agency employers

No background check prior to conditional employment offer or candidate has been named as a finalist

 

Effective September 1, 2019, for all private employers with 11+ employees; effective on or after September 1, 2021, for all private employers

No criminal history questions on initial job applications 

Connecticut

All employers

No criminal history questions on initial job applications 

Delaware

Public employers

No criminal history inquiries or background check prior to initial job interview

Georgia

Public employers for the State of Georgia

No criminal history questions on initial job applications

Hawaii

All employers

No criminal history inquiries prior to conditional employment offer

Illinois

Any private employer with 15+ employees and public-sector employers for the State of Illinois

No criminal history inquiries prior to initial  job interview, or after the conditional job offer if there is no interview

Indiana

Public employers in the state’s executive branch

No criminal history inquiries unless a particular crime precludes applicant for employment in particular job

Kansas

Public employers under jurisdiction of the Office of the Governor

No criminal history questions on initial job applications, and a criminal record may not automatically disqualify a candidate from receiving an interview

Kentucky

Public employers in the executive branch for the State of Kentucky

No criminal history inquiries until after offering initial job interview 

Louisiana

Public employers for the State of Louisiana hiring for an “unclassified” position

No criminal history inquiries until after initial job interview or conditional job offer if no interview is conducted

Maine

Public sector, state government employers

No criminal history questions on initial job applications

Maryland

Any private employer with 15+ employees and public-sector employers for the State of Maryland

No criminal history questions until after first interview

Massachusetts

All employers

Prohibits criminal history questions on initial application form, but also bans inquiries about certain types of crimes later in the hiring process

Michigan

Public employers

No criminal history inquiries until after initial job interview or conditional job offer

Minnesota

All employers

No criminal history inquiries until after initial job interview or conditional job offer if there is no interview

Missouri

Public employers in the executive branch of the State of Missouri

No criminal history questions on initial job applications 

Nebraska

Public employers

No criminal history questions until the employer has determined the applicant meets the minimum employment qualifications

Nevada

Public employers

No criminal history inquiries until after a final in-person job interview or conditional job offer

New Jersey

All employers with at least 15 employees

No criminal history inquiries until after initial job interview 

New Mexico

Public employers

No criminal history inquiries until applicant has been named as a finalist

 

Private employers

No criminal history questions on initial job applications

New York

Public employers

No criminal inquiries prior to initial job interview

 

All employers

No criminal history questions related to: a Youthful Offender Adjudication, any arrest that was processed as a Juvenile Delinquency proceeding in Family Court, or any sealed arrest or conviction records, unless specifically required or permitted by NY state law

North Dakota

Public employers (excluding school districts)

No criminal history inquiries until initial job interview

Ohio

Public employers

No criminal history questions before conditional job offer

Oklahoma

Public, state agency employers

No criminal history questions on initial job applications

Oregon

All employers

No criminal history inquiries until after initial job interview or conditional job offer if there is no interview

Pennsylvania

Public employers hiring for non-civil service positions falling under the governor’s jurisdiction

No criminal history questions on initial job applications

 

All employers

Employers should only assess pending cases and felony and misdemeanor convictions and must assess whether convictions relate to suitability for employment in the specific position

Rhode Island

All public employers for the State of Rhode Island and any private employer with four or more employees

No criminal history inquiries until initial job interview or later

Tennessee

Public employers

No criminal history inquiries on initial job applications

Utah

Public employers

No criminal history inquiries until initial job interview or conditional job offer if there is no interview

Vermont

All employers

No criminal history inquiries until an interview or until applicant is deemed otherwise qualified for a position

Virginia

Public employers in the executive branch

No criminal history inquiries until applicant is deemed otherwise qualified for a position

Washington

All employers

No criminal history inquiries before job applicant is deemed otherwise qualified for a position

Wisconsin

Public employers

No criminal history inquiries until applicant is deemed otherwise qualified for a position

In addition to states, over 100 cities and counties now require ban-the-box practices for private employers. They include:

  • Austin, TX

  • Baltimore, MD

  • Buffalo, NY

  • Chicago, IL

  • Columbia, MO

  • Washington, D.C.

  • Kansas City, MO

  • Los Angeles, CA

  • Montgomery County, MD

  • New York City, NY

  • Philadelphia, PA

  • Portland, OR

  • Prince George’s County, MD

  • Rochester, NY

  • San Francisco, CA

  • Seattle, WA

  • Spokane, WA

 

We strongly recommend you work with an outside counsel that specializes in the FCRA to help keep you up-to-date on these constantly changing rules.

What is Individualized Assessment?

In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidelines advising employers to consider the specifics of each candidate who may be denied employment based on a background check, known as individualized assessment. Specifically you should consider the nature and gravity of the offense or conduct, for example:

  • The time that has passed since the offense, conduct and/or completion of the sentence

  • The nature of the job held or sought

You are also encouraged to keep in mind other factors such as the number of offenses, employment history before and after the offense, rehabilitation efforts, and other circumstances.

The cities of New York and Los Angeles specifically require this type of individualized assessment as part of the hiring process, including that you “show your work” to the candidates to document your decision making.  Make sure you work with a qualified counsel to help design your adjudication and adverse action procedures.

How does Ban-the-box impact your hiring process?

Whether these laws apply to you depends on multiple factors, including:

  • Your company’s size
  • Where you’re located or where you hire employees
  • Whether you’re a government agency or private employer
  • What industry you’re in (health care, child care, law enforcement, education, banking, accounting, insurance, transportation & security, and others often fall under different regulations)

Consult with your counsel to determine which ban-the-box laws apply to you, and based on that guidance you may want to review the language on your job descriptions and applications, and/or ensure that your hiring or engagement managers are not asking about criminal history as part of the interview process. 

While many ban-the-box laws apply only to public sector employers, blanket ban-the-box laws impacting all sectors are on the rise. These laws present complexities for employers and continue to be controversial in some parts of the country. However, there is no doubt that more states and counties are adopting these laws, and that organizations who do not comply are facing stiff penalties.

Your next steps should include:

  • Review ban-the-box and fair chance laws in the states and municipalities in which you recruit employees
  • Revise job applications and interviewing guidelines in accordance with the laws
  • Ensure policies and procedures for background checks are in compliance
  • Change the sequencing of events in the hiring process as required
  • Implement guidelines that comply with the law and train hiring managers

The best-practice guidance is to adopt the policies in the most stringent jurisdiction and use them as a model for the whole organization. HR professionals are also advised to have procedures reviewed by experienced employment attorneys to ensure compliance throughout the hiring process.

Closing

Ban-the-box legislation is just one example in a growing trend in state and municipal fair-hiring laws. The last thing you need to do is worry about constantly changing background check rules. That is why you want to look for a background screening partner with deep compliance experience along with a qualified attorney to proactively keep you up-to-speed.  Violating these policies can be costly for your company. Make sure you are doing everything you can to reduce your risk.

Is your background check compliance confusing?

All of this is just a start when it comes to determining whether your background check program has compliance risks. Have a question or need help understanding your background screening compliance gaps? Click below to work with one of our Scouts to help identify potential areas of concern that you can review with your qualified attorney.

 


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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.



Topics: Background Check 101