Ban the Box: What You Need to Know

Jen Waite
graphic with ban the box words and orange checkmark

With the steady increase in jurisdictions enacting ban the box laws, it has become essential for employers to remain vigilant on understanding how the legislation impacts their hiring practices. Ban the box laws can be tricky for employers to navigate. Many jurisdictions have varying restrictions and applications of the law. Factors such as employer and applicant location and residence, timing of criminal history inquiries, and the applicant pool are all impacted by ban the box restrictions. As a starting point, we’ve outlined some commonly asked questions regarding ban the box.

 When Can I Ask an Applicant About His or Her Criminal History?

Jurisdictions vary on when employers are permitted to inquire into an applicant’s criminal history. Some jurisdictions restrict inquiries by employers into an applicant’s criminal history until after the initial interview, unless a conditional employment offer has been made, while other jurisdictions are very restrictive, prohibiting employers from asking specific criminal history questions at all. For example, one of the more recent jurisdictions to enact ban the box legislation, the US Virgin Islands, completely prohibits employers from inquiring into whether an applicant has participated in pre- or post-trial diversion programs.

To meet the different jurisdictional demands of ban the box, employers should determine at what point in the hiring process they want to present the applicant with the criminal history questionnaire and provide instructions to individuals who fall under these jurisdictions as to whether they should or should not disclose specific criminal history information.

 Does Ban the Box Apply if our Applicant Pool is Limited to In-State Applicants Only?

The location of the employer and residence of the applicant are factors that may trigger ban the box restrictions. If either party is located in a jurisdiction with ban the box restrictions, legislation may apply. Consequently, employers should consider whether their applicant pool consists of individuals located in states that have enacted ban the box legislation. This includes applicants relocating for employment or companies with locations throughout the country.

Is Ban the Box Triggered When I Run a Background Check?

Ban the box applies when you ask an applicant to disclose his or her criminal history, not necessarily when you run the applicant’s background check. A best practice would be to consider when in the hiring process your company asks the applicant to disclose his or her criminal history and if any jurisdiction’s ban the box laws are triggered by asking the applicant to disclose those criminal history questions at that time. Additionally, employers should consider adding jurisdiction-specific instructions to the criminal history questionnaire, specific to the timing requirements previously mentioned.

Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.

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