Ban the Box: What Employers Should Know

The Ban the Box movement has been around for over a decade, but has started to gain real momentum in terms of legal practices throughout the US in the last couple of years.

Ban the Box refers to the movement that looks to remove questions regarding criminal history from the application and delay the inquiry until later in the hiring process such as after an interview or conditional job offer. It’s named after the check box on an application asking about any criminal history. The goal is to “level the playing field” and have employers consider applicants’ qualifications independent of their criminal histories.

Currently, 23 states have adopted policies, as have over one hundred individual cities and counties. But what does this mean for employers? What do you need to know to protect yourself during hiring?

According to the National Employment Law Project (NELP), over 70 million US adults have arrests or convictions. Many of these individuals are turned away from job opportunities because of their criminal histories — despite their skills and qualifications. The “box” on the job application asking about criminal history may even discourage these individuals from applying for the job. NELP has indicated that the likelihood of a job callback or offer drops by nearly 50% when the applicant discloses a criminal record. Whereas when an employer has the opportunity to examine the qualifications of an applicant, the likelihood of he or she hiring that applicant is increased.

It’s important to note that the Ban the Box movement and subsequent legislation isn’t consistent across cities, counties or states. In some cases, it looks to delay the line of questioning until further in the process so that someone with ample qualifications isn’t dismissed without proper consideration. In some instances the employers’ ability to consider certain types of criminal activity is restricted. In other cases, it applies only to public or government workers.

Right now, the 23 states that have laws on the books include: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and Wisconsin. According to NELP, when you add up all the states and localities that have enacted Ban the Box (also known as “fair-chance employment laws”), over half the US population now live in a Ban the Box jurisdiction.

The key is to know what the laws are where you’re conducting business, then review your hiring practices to ensure you’re compliant. Consult with your employment attorney for this part of the process. Consider removing any questions or check boxes that ask about criminal history on your application, and then ensure ONLY the most recent applications are used (both paper and online).

Be sure to update your hiring process and train any hiring or recruiting staff to instruct them not to ask about criminal history until the appropriate time. It’s also important to understand how to read background checks. An arrest does not equate to a conviction. Were charges later dismissed? Make sure you’re able to tell. You should be documenting all hiring decisions – especially any based in any way on criminal history.

As laws continue to change, keep abreast of any changes and how they may impact your hiring process. You can do this by asking your attorney to keep you updated, or through any of the staffing associations to which you may belong. Tricom also posts updates on as well as on our Facebook and Twitter feeds.


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