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Ban the Box

One of the most oft-discussed trends in the background check industry over the past few years has been the legislative movement to “ban-the-box.” We have seen the these laws enacted in states, cities, and counties across the nation for several years now. But what are ban-the-box laws and what do they do mean for your organization? Read on the learn more about this movement and to determine where ban-the-box legislation has been passed, whether or not the apply to you, and how your organization can comply with this legislative trend.

What does it mean to ban-the-box?

The “box” refers to the question on job applications that asks applicants whether or not they have ever been convicted of a crime. Ban-the-box laws require employers to remove this question – as well as any other queries about criminal history – from job applications. Ostensibly, ban-the-box laws seek to prevent employment discrimination against individuals with criminal records. The idea is that an employer gets a chance to form an initial impression of each applicant’s current character before the employer reacts to the to the fact that the applicant has a criminal history. With no questions about criminal history on the job application, and with background checks delayed until late in the hiring process, and ex-offender will theoretically have a better chance of being viewed as “the best person” for the job.
However, most ban-the-box legislation places other restrictions and other requirements on employers. For instance, some states prohibit employers from inquiring about arrests, dismissed history, sealed records, or history in a diversion program. Some ban-the-box laws restrict employers from inquiring about criminal history until after the first interview or until a conditional offer of employment is made. Some jurisdictions require employers to consider other factors, such as time-related restrictions or whether criminal history is job-related.

How does the law affect what employers can do with background checks?

Do ban-the-box laws also ban background checks?
Ban-the-box laws typically do not forbid employers from running background checks on their applicants, but some require a delay in obtaining a criminal background check until after the first job interview or until after a conditional offer of employment is made. Some restrict how an employer can use the information obtained in a background check, some require additional notices be given to applicants, and some delay the firing process by granting a right to appeal employer decisions based on criminal history information. That’s not to say employers can’t disqualify applicants based on criminal history. A conditional offer of employment can be withdrawn , although some ban-the-box laws limit withdrawal to situations where background check findings indicate that an applicant has a criminal conviction the directly affects their ability to perform the job in question. Some ban-the-box laws require employers to consider criminal histories on a case-by-case basis, rather than rejecting all applicants who check the “criminal record” box on a job application or have specific types of criminal history.

Latest Trends

Note that new ban-the-box laws are being implemented regularly at this point, both as state or county laws and as city ordinances. In many spots, these laws apply only to public government positions; elsewhere, they apply to both private and public employers. You will want to do some research about your area to learn the specifics of your local ban-the-box laws, or to find out if your state or local jurisdiction in considering such a law. However, for reference, here is a link to our ban-the-box document that charts state and local restrictions on criminal history inquiries and background checks for non-governmental employers. As you can see, ban-the-box laws are complex and they vary from one jurisdiction to another. With the EEOC recommending that employers follow the ban-the-box guidelines – eliminating questions about convictions from job applications, delaying background checks – we expect that these laws will only become more prevalent in the coming years.

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