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June 30, 2021

The [Ongoing] Evolution of Ban the Box

Checkr Editorial

Editor’s Note: Nothing in Checkr’s Blog should be construed as legal advice, guidance, or counsel. Companies should consult their own legal counsel about their compliance responsibilities under the FCRA and applicable state and local laws. Checkr expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided.

“Ban the Box” is not a new term to the HR world. The term was first created to refer to the check-box commonly found on applications asking job seekers to disclose if they had ever been convicted of a crime. In fact, the first Ban the Box regulation was implemented in 1998, when Hawaii passed a law restricting employers from considering a candidate’s criminal background until after a job offer had been made. 

Since its origins back in the ’90s, Ban the Box has become much more than just removing the section on an application asking about criminal history. The ban has evolved into several laws and policies that vary widely by state, city, and even county.

So, what exactly is Ban the Box today? And what potential implications does it have on your organization? In this blog, we’ll cover the evolution of Ban the Box, the impact it may have on your organization, and the key considerations to be aware of.

What are Ban the Box policies?

As mentioned above, the law initially referred to the actual box on a job application where candidates would indicate whether they had criminal histories. Today, many of these regulations also govern when employers are allowed to ask about criminal records. These policies mainly cover the public sector, but many laws also apply to private-sector employers.

Currently, 36 states, Washington, D.C., and over 150 cities and counties have adopted Ban the Box policies, but these laws and regulations can vary greatly based on location.

For instance, Hawaii’s laws apply to private employers and prohibit criminal background checks until after a job offer has been made. In addition, employers may not ask about felony convictions outside the past seven years and misdemeanors outside the past five, excluding periods of incarceration.  

By contrast, the state of Washington uses less explicit language to guide employers, noting that a criminal history check is not allowed before the employer deems an applicant otherwise qualified for the position.

There has also been progress toward making these policies apply on a federal level. In April 2012, the Equal Employment Opportunity Commission (EEOC) clarified and strengthened its hiring policies by updating the Enforcement Guidance on Consideration of Arrest or Conviction Records in Employment Decisions.

In November 2015, President Obama showed his support for Ban the Box laws by directing federal agencies to delay inquiries into job applicants’ criminal history until later in the hiring process.

Most recently, a national Ban the Box bill was introduced in March 2021, which would give states three years to put policies in place that prohibit private employers from asking about an applicant’s criminal record before a job offer is extended or risk losing criminal justice funding. 

Why does Ban the Box matter?

Currently, 1 in 3 American adults are living with a criminal record. The Ban the Box movement was borne out of the notion that people deserve a fair chance to get a job based on their skills and qualifications, not their criminal history.

In fact, with such a large part of the population falling into this category, restricting the ability to judge a candidate based on their criminal record could help boost the economy. According to a study by the Center for Economic and Policy Research, the national cost of the employment penalty for formerly incarcerated individuals and those convicted of felonies is $78 to $87 billion annually. By bringing people with diverse skills and abilities—who may otherwise be overlooked—back into the labor market, that cost begins to shrink.

How does Ban the Box impact employers?

Since there isn’t currently a national Ban the Box statute that applies to private employers, it can be challenging for organizations to navigate policies that vary widely across the country.

Companies also need to walk a fine line between ensuring a safe work environment and giving all candidates a fair shake at available opportunities. This is especially true for organizations within certain industries that deal with health, safety, education, and finances. It may be essential for those types of organizations to conduct an individualized assessment, and potentially take adverse action against a candidate if something relevant does come up during the background check.

How can you incorporate Ban the Box policies into your hiring process?

First, it’s important to know whether these laws apply to your organization. Consider these factors when determining their relevance, including:

  • Your company 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 and security, and others often fall under different regulations)

Next, make sure to consult with your counsel to determine which Ban the Box laws apply to your company. Based on their feedback, you’ll want to review your job descriptions and applications to ensure the language included is compliant. For instance, you may want to replace phrasing such as “Candidates with felonies in the past seven years need not apply” with something like, “This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate.”

You’ll also want to consider providing training to hiring managers to make sure they know what types of questions they can and can’t ask during the interview process, including about criminal history.

Don’t fear Ban the Box

It’s true that Ban the Box laws and policies may complicate the hiring process. However, without them, companies may be overlooking potential employees who could make a positive impact on their organization. By working closely with your counsel and the right background check partner, you’ll ensure you’re doing right by both your current and prospective workers.

Find out more about Ban the Box policies and their relation to employment screening in our free resource “The Beginner’s Guide to Background Checks

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