Ban the Box: What Is It? Who Requires It?

Tuesday April 12th, 2016

ban-the-boxAs public interest in reducing the U.S. prison population and recidivism rate grows, employers are being pushed to remove the check box on employment applications that asks applicants if they have a criminal record. These “ban-the-box” laws are gaining traction at both the state and local levels.

About 70 million individuals have a criminal record, and 700,000 individuals return to their communities annually after being released from prison, according to the New York-based National Employment Law Project. One of the first things an individual released from prison will typically do is start to apply for jobs. However, because employers conduct background checks on job applicants, many potentially qualified individuals are dismissed due to their criminal records.

Ban-the-box advocates argue that because applicants may be screened out by potential employers simply because they admit to having a criminal record, their struggle to find gainful employment might lead them on a path back to jail. Ban-the-box laws, they contend, are intended to force employers to judge applicants on their qualifications, not their criminal records.

Employers, meanwhile, argue against a blanket ban-the-box policy because asking a potential employee about his or her criminal record prevents negligent hiring claims, reduces the risk of employment discrimination claims, and generally promotes workplace safety.

Federal law is quiet on this issue, but at the state level, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island and the District of Columbia have passed ban-the-box laws. In these states, employers can ask job candidates about criminal convictions later in the hiring process. The District of Columbia allows this once a conditional offer is made to a job applicant. Illinois permits inquiries when an applicant is offered an interview.

Michigan and New York have laws that restrict the information employers can request. Michigan employers cannot request records of information on job applicants' misdemeanor arrests, detentions or dispositions in connection with job applications or terms, conditions and privileges of employment if such arrests, detentions or dispositions did not result in convictions. In New York, employers can't ask on job applications or otherwise about arrests or criminal accusations that were resolved through youthful offender adjudication, resulting in sealed convictions or those that did not result in convictions.

A number of cities also have passed ban-the-box laws. In Philadelphia, employers are required to delay criminal background checks on prospective employees until a conditional job offer has been made. Portland, Oregon's law, effective this July, says that employers cannot exclude applicants from consideration solely based on their criminal history. Other localities with ban-the-box laws include Baltimore, Chicago, New York City, San Francisco and Seattle.

As more states and cities consider ban-the-box laws, employers can take action to ensure compliance:

  • Remove criminal history inquiries from job applications.
  • Ask about criminal history after the initial interview.
  • Work with third-party background-checking vendors to make sure criminal history is not pulled up automatically.
  • Keep records of reasons why one person was chosen over others for the job, in case of employment discrimination claims.