Ban the Box Laws Applicable to Private Employers

Ban-the-box laws regulate when employers can inquire into an applicant’s criminal history during the hiring process by eliminating checkboxes on job applications. These laws aim to reduce discrimination against individuals with criminal histories and give them a fair chance at employment. Over 150 local jurisdictions and 37 states have implemented these laws, with variations in the timing of inquiries and additional regulations on the use of criminal history. Multi-state employers can navigate these regulations by either adjusting inquiries based on jurisdictional requirements, which could be complex, or by adopting a uniform policy of delaying inquiries until after a conditional offer of employment, ensuring compliance with all laws and promoting fair assessment practices. A summary of the state-specific requirements are summarized in this blog.

What are ban-the-box laws?

Ban-the-box laws are legislative measures that regulate when, during the hiring process, an employer can inquire into an applicant’s criminal history information. These legislative measures are referred to as “ban-the-box” laws because they operate in a way that effectively requires the removal of the checkbox found on job applications that ask applicants to disclose whether they have a criminal history. In 1998, Hawaii was the first state to implement a law that delayed criminal record inquiries until a later time in the hiring process, and, since then, many jurisdictions have followed their lead. The ban-the-box laws vary from jurisdiction to jurisdiction regarding when an employer may legally inquire into an applicant’s criminal history. The most common acceptable timings of inquiry include after the initial employment application, after the initial interview, or after a conditional offer of employment. Still, some laws have specified other points in the hiring process when an employer may legally inquire into an applicant’s criminal history.

It is important to note that although ban-the-box laws traditionally have focused on controlling the timing of inquiry into an applicant’s criminal history, ban-the-box laws have increasingly expanded by also incorporating additional rules that regulate the inquiry into and use of criminal history during the hiring process. Indeed, some ban-the-box laws now (1) restrict the types of criminal information an employer can inquire into and/or use to make a hiring decision; (2) integrate the Equal Employment Opportunity Commission’s guidance on the consideration of arrest and conviction records in employment decisions; and/or (3) mandate strict procedures that must be followed if an employer decides to make an adverse hiring decision based on a criminal record.

Be that as it may, the remainder of the blog will focus on various ban-the-box laws’ regulations concerning when an employer can inquire into an applicant’s criminal history.

What is the purpose of ban-the-box laws?

Ban-the-box laws aim to reduce discrimination against applicants with a criminal history by preventing employers from making biased decisions based solely on criminal history. Instead, the ban-the-box laws’ framework encourages employers to make fair-minded decisions concerning an applicant’s criminal history because an employer should have already at least partially evaluated the applicant’s qualifications and skills concerning the position being sought by the time criminal history can be discovered. Ultimately, the purpose of ban-the-box laws is to give applicants with a criminal history a fairer chance at securing employment.

What jurisdictions have ban-the-box laws applicable to the private sector?

37 states and over 150 local jurisdictions have implemented ban-the-box laws. Of those laws, at least 15 states and 23 local jurisdictions have ban-the-box laws that apply to private employers. The table below includes jurisdictions that have ban-the-box laws applicable to private employers and highlights covered employees and the acceptable timings of inquiry into an applicant’s criminal history. Please remember that this information is not all-inclusive, and InCheck strongly recommends that employers work closely with their legal counsel to further examine all relevant laws to ensure their background screening policies and procedures are compliant.

How can multi-state employers manage numerous jurisdictions’ restrictions on the timing of inquiry?

There are two common approaches that multi-state employers implement.

First, multi-state employers can simply modify when they inquire about an applicant’s criminal history in a particular location based upon that jurisdiction’s legal requirement, if any. However, such a strategy may prove complex and result in confusion because restrictions vary so broadly from jurisdiction to jurisdiction. This approach will require multiple job applications and interview guidelines that necessitate multifaceted training.

Alternatively, multi-state employers may consider implementing a uniform policy of delaying inquiry into an applicant’s criminal history until after a conditional offer of employment, whether or not a particular jurisdiction requires it. This approach will help ensure timing of inquiry compliance with all ban-the-box laws, as inquiry after a conditional offer of employment is acceptable in every single jurisdiction. Moreover, such a policy advances a company-wide fair assessment process, because it makes certain that all individuals, regardless of location, are first evaluated based on their qualifications and skills, before there is consideration of an applicant’s criminal history, thus leading to a greater likelihood that the employer will objectively assess the candidate’s criminal history. If properly executed, the multi-state employer can feel confident that they have provided justice-impacted individuals with a more legitimate chance at employment by removing at least one of the barriers that those individuals face in obtaining employment.

How Can InCheck Help?

Our team of compliance experts can offer insight on navigating ban-the-box laws. Contact InCheck today to learn more about our services.