Ban the Box Laws: What Employers Should Know

“Ban the Box” is not a new term in the HR world. In 1998, Hawaii passed a law restricting employers from considering a candidate’s arrest or conviction record until after a job offer had been made. All of Us or None, a national organization that promotes the civil and human rights of incarcerated and formerly incarcerated people, is widely credited with successfully furthering the effort. In the early 2000s, the grassroots organization urged the removal of checkboxes – banning the box – asking about arrest and conviction records from employment applications in advance of a conditional offer.

In the years since its origins, Ban the Box laws have become much more than removing the section on a job application asking about a candidate’s arrest or conviction history. The Ban the Box movement has evolved into a variety of local, state, and federal laws,  policies, and ordinances that are commonly referred to as Second Chance or Fair Chance laws.

What exactly is Ban the Box today and how may it impact your employment practices? In this article, we’ll examine the current state of Ban the Box policies, why Ban the Box laws benefit both job applicants and employers, and ideas for integrating fair hiring practices into your recruiting process.

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As mentioned above, the law initially referred to the actual box on a job application where candidates would indicate whether they have an arrest or conviction history. Today, however, many Ban the Box laws also govern when employers are allowed to conduct a background check.

Currently, 37 states, Washington, DC, and over 150 cities and counties have adopted Ban the Box policies. These policies mainly cover the public sector, but many laws also apply to private sector employers.

Ban the Box laws can vary greatly based on location and jurisdiction. For example, California – the most populous state in the US – has both a statewide law as well as many city- or county-specific Ban the Box laws to encourage fair hiring practices.

The California Fair Chance Act (California Government Code § 12952) went into effect in 2018 and applies statewide. It prohibits public and private employers with five or more employees from requiring candidates to disclose whether they have an arrest or conviction record during the application process before making a conditional job offer. If a job offer is rescinded due to a candidate’s arrest or conviction history, employers must follow a comprehensive fair chance review process, including allowing the candidate to respond in writing to the decision.

There are currently ten cities or counties with additional Ban the Box laws in California. For example:

Other cities across the nation, like Chicago, have recently made changes to Ban the Box laws. The City made amendments to its 2015 Ban the Box ordinance, with changes taking effect at the end of April 2023, expanding coverage to most Chicago employers. The Ordinance prohibits the use of arrest records not leading to conviction; a juvenile record; or criminal history record information that has been expunged, sealed, or impounded. It also prohibits employers from taking adverse action unless certain criteria apply, requires an individualized assessment when conviction records are being considered, and contains strict adverse action notification requirements.

Continuing progress has also been made toward applying Ban the Box policies on a federal level.

In April 2023, a national Ban the Box bill (first introduced in March 2021) was reintroduced. The Workforce Justice Act would give states three years to enact policies that prohibit private employers from asking about an applicant’s arrest or conviction record before a job offer is extended or risk losing criminal justice funding.

Some 80 million Americans have an arrest or conviction record. For many, having a conviction history makes it difficult to find gainful employment to support themselves and their families. More than one-quarter (27 percent) of formerly incarcerated individuals are unemployed.

Making hiring decisions based on a job candidate’s arrest or conviction record can lead to claims of disparate impact discrimination. According to EEOC guidance, hiring policies that appear neutral—such as denying employment based on a criminal history—can violate the law if they disproportionately impact employees and candidates protected by Title VII of the Civil Rights Act of 1964.

Title VII prohibits employers from discriminating against candidates on the basis of race, color, religion, sex, or national origin. Because Black and Hispanic Americans are disproportionately impacted by the criminal justice system, a blanket policy against hiring candidates with arrest or conviction  records could result, among other potential issues, in claims that an employer is effectively discriminating against people of color in violation of Title VII.

Because Ban the Box laws aim to give candidates with arrest or conviction  records a fair chance at employment, the terms Ban the Box and fair chance hiring are often used interchangeably. However, true fair chance hiring goes further than simply banning a check box; it actively recruits candidates with past justice system involvement.

More than four-fifths of the US population (over 267 million people), live in a jurisdiction that has banned the box, according to the National Employment Law Project. But job candidates aren’t the only ones to benefit from Ban the Box laws, there’s many advantages for employers, too.

Fair chance hiring can help:

Compliance with any Ban the Box regulations affecting your business is essential. Without 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, and even from one city or county to another within the same state. Using a fair chance hiring process is one way to mitigate risk around EEOC guidelines and federal anti-discrimination law.

Here are several considerations for implementing fair chance hiring practices:

Companies also need to walk a fine line between giving candidates a fair chance at available opportunities and taking steps to prevent negligent hiring. This is especially true in industries that deal with health, safety, education, and finances. Should an offense relevant to the job show up on a background check, these organizations may wish to conduct an individualized assessment to make an informed hiring decision.

Untangling the web of Ban the Box ordinances can be complex, especially when you’re hiring in multiple locations. Choosing an accredited and experienced background check provider can help simplify the task. For example, Checkr’s Candidate Stories feature enables candidates to easily share context around past offenses, empowering them to have a voice while more easily facilitating individualized assessments. Our built-in compliance workflows, adjudication tools, and adverse action process support fair chance hiring and Ban the Box laws based on jurisdiction while enhancing your team’s efficiency.

Complying with Ban the Box regulations adds complexity to hiring, but ultimately pays off in a larger, more diverse, and more loyal talent pool. By working closely with your legal counsel and the right background check partner, you can conduct background checks and hire with confidence.

2024

State of Screening Compliance

A new survey report highlights seven key insights into how organizations are managing background check compliance.

Read the report