What Is Ban-the-Box?

The process of hiring is complex. An employer must follow certain guidelines to bring new employees into their company or organization. Ban-the-box laws are just some of the requirements that businesses must abide by.

Ban-the-box laws and their associated movement have gained traction over the years. They have been developed at various federal, state, and local levels. Ban-the-box laws push to eliminate the checkboxes on job applications that require applicants to disclose prior criminal convictions.

Ban-the-box laws give all applicants a fair chance. But as an employer, you need to know how ban-the-box laws operate and how to follow them with your job applications and fair chance hiring processes.

Keep reading for more details on ban-the-box legislation and what it means for your organization.

What are Ban-the-Box Laws?

For years, the vast majority of job applications included questions about an applicant’s criminal history, often in the form of a checkbox. Applicants were required to complete this section. Many employers removed candidates that had any type of criminal history, instead of evaluating their qualifications first and giving them a fair chance.

Ban-the-box laws and related fair chance laws were created to help those with criminal records obtain meaningful employment.

In 1998, Hawaii was the first state in the country to pass a ban-the-box law prohibiting this type of discrimination on job applications. After this initial law passed, more states and cities followed the ban-the-box campaign in the decades that followed.

Today, at least 35 states and 150 cities and counties across the country have ban-the-box laws in place to breakdown the stigmas associated with prior convictions. Ban-the-box laws have become increasingly popular as the country pushes to reform the criminal justice system.

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What Is the Purpose of Ban-the-Box?

“Ban the Box” is a movement that began in the 1990s in the US. It called to remove the checkbox on job applications about disclosing a criminal record, hoping to delay this inquiry until further into the hiring process. One example would be after giving written consent for a criminal background check.

This is so anyone with a criminal record isn’t dissuaded from applying to a position that may be perfect for them for other reasons – such as their work history, skillset, or passions in general. In turn, this helps deter those with a criminal record from reoffending, as they would be able to display their qualifications and abilities before having to disclose their history.

Overall, the movement gives them a better chance at securing employment and reintegrating into society, helping improve fair hiring processes for businesses across the US.

What Do Ban-the-Box Laws Require?

With ban-the-box legislation, employers have rules that they must follow during the fair hiring process. If you don’t comply with ban-the-box, you are likely to be penalized. The extent of these penalizations will vary depending on where you operate.

Some ban-the-box violations may result in serious legal trouble. To avoid these consequences, you should stay up to date on ban-the-box laws that are relevant to your area and incorporate fair hiring practices.

Ban-the-box laws and other fair hiring laws may have you eliminate certain questions and sections of your job applications. You must modify them to comply with current fair hiring and equal employment opportunity guidelines.

Additional requirements and ban-the-box policies may also arise. The Equal Employment Opportunity Commission (EEOC) notes that organizations should:

• Refrain from posing questions regarding criminal history during interviews
• Limiting what situations warrant the use of conviction records in consideration
• Conduct background checks only after a provisional offer has been made
• Remove phrases like “background check required” from job ads

Why Are Ban-the-Box Laws Important to Employers?

Ban-the-box laws matter to employers because they allow businesses to expand their hiring pools and find the most qualified candidates, regardless of criminal history. When these types of discriminatory questions are present on an application, it may discourage someone with a conviction history from completing a job application, even if they’re the perfect fit for the job.

Without ban-the-box laws in place, both employers and employees miss out on valuable opportunities due to conviction history.

How Does Ban-the-Box Impact Your Hiring Process?

It’s essential to comply with Ban-the-Box regulations and follow US law for equal employment opportunities. The ways this may affect your hiring process are as follows:

Changes to Job Applications

One of the most noticeable changes will come in the applications produced. This would also mean a slight edit of the general interview process, saving any questions about a criminal record for further into the application process.

There would also require a change to the training of hiring managers, HR managers, and any employee with anything to do with hiring or onboarding a new team member, ensuring they comply with Ban-the-Box.

Timing of Background Checks

Keeping any discussions of background checks later in the hiring process will make it more likely for candidates with the right skill set to get through to interviews. Those undergoing a background check may be more open to the idea if they’re aware that it will be further along in the hiring process and closer to securing the actual job.

Similarly, this means employers will be serving background checks on people they’re more interested in hiring and, therefore, may be more likely to overlook some of the things found in the record.

Legal Compliance

Even if an employer decides not to hire an individual because of something learned from a background check, they cannot use this information to discriminate against you unlawfully. Instead, they must adhere to state laws and adverse action if they do not wish to continue a professional relationship.

More Diverse Hiring

The Ban-the-Box movement naturally lends itself to more diverse hiring, which in turn leads to a reduction in workplace and hiring discrimination.

What is Individualized Assessment?

As part of the Equal Employment Opportunity Commission’s 2012 guidelines, companies are encouraged to perform what is known as an individualized assessment on candidates with a criminal history as a part of their efforts

This process asks employers to go over the specifics of an individual candidate’s criminal history in relation to the job they are seeking. An employer notifies a candidate about their potential denial based on their criminal records. An employer allows the candidate to explain why the exclusion should be dismissed in the context of their conviction history.

Individualized assessment promotes the idea that candidates should be judged outside of their conviction history or at least within the context of those crimes. That context could be related to the duties of the open job in question, the candidate’s rehabilitation efforts, and more.

Here are a few of the questions that you should ask when conducting an individualized assessment:

• Does the nature of the criminal history relate directly to the duties and nature of the job sought? Is there anything about the nature of the crime that would impact the individual’s ability to perform this job?
• Has the candidate held a similar job before and have they done so since they were convicted?
• How much time has passed since the individual was convicted or served their sentence? (Some areas only allow employers to consider recent convictions)
• Did the candidate complete their sentence and what was their conduct like during that sentence?
  Has the candidate been working towards rehabilitation? For example, have they pursued education or training?
• What were the circumstances surrounding the offenses in their conviction history?
• How many offenses have the candidate has been convicted for?
• Does the candidate have strong employment or character references that they can provide?

Which States Have Ban-the-Box Laws?

When it comes to where ban-the-box laws affect businesses, policy varies by state. Some cities and counties have their own requirements outside of state requirements. The distinctions can get confusing, but not impossible to recount.

Here are the states that currently have ban-the-box laws, but keep in mind that some cities and counties might have their own policies about conviction history:

Arizona

Applies to public employers. Requires that there are no criminal history inquiries before the initial interview.

California

Applies to public and private employers. Employers can’t conduct a criminal background check until a conditional job offer is made.

Colorado

Applies to state employment and licensing. No background checks are allowed until a conditional job offer occurs or a candidate is named as a finalist.

Connecticut

Applies to public and private employers. Requires that there are no criminal history questions on initial job applications.

Delaware

Applies to public employment. It requires that there are no criminal history inquiries before the initial interview.

Georgia

Applies to all public employers for the state. Requires that there are no criminal history questions on initial job applications.

Hawaii

Applies to public and private employers. No background checks are allowed until a conditional job offer occurs.

Illinois

Applies to public and private employers with more than 15 employees. There can be no criminal history inquiries before the first interview or after a provisional offer is made.

Indiana

Applies to state employers in the executive branch. There can be no criminal history inquiries unless crimes relate to the job at hand.

Kansas

Applies to public employers under the jurisdiction of the Office of the Governor. Requires there to be no criminal history questions on initial applications and a record can’t disqualify someone from an interview automatically.

Kentucky

Applies to state employers in the executive branch. There can be no criminal history inquiries until after the first interview.

Louisiana

Applies to certain state employment postings. There can be no criminal history inquiries before the first interview or after a conditional offer is made.

Maine

Applies to public and state government employers. Requires no criminal history inquiries on the initial job application.

Maryland

Applies to state employment and private employers with over 15 employees. There can be no criminal history inquiries until after the first interview.

Massachusetts

Applies to public and private employers. No criminal history inquiries on the initial employment application, as well as restrictions on certain types of inquiries later in the hiring process.

Michigan

Applies to public employers. There can be no criminal history inquiries before the first interview or after a conditional job offer is made.

Minnesota

Applies to public and private employers. There can be no criminal history inquiries before the first interview or after a conditional offer is made.

Missouri

Applies to public employers in the executive branch. Requires that there are no criminal record questions on initial job applications.

Nebraska

Applies to public employers. Criminal background questions can be asked after an employer determines a candidate meets all other qualifications.

Nevada

Applies to public employment. There can be no criminal history inquiries until a final interview (in-person) or until a conditional job offer is made.

New Jersey

Applies to public and private employers with more than 15 employees. There can be no criminal history inquiries until after the first interview.

New Mexico

Applies to public employment. States that there can be no criminal history inquiries until a candidate is announced as a finalist.

New York

Applies to public state employment. Requires that there are no criminal record inquiries before the first job interview. Additional rules relating to juvenile records.

North Dakota

Applies to certain public employers (except for schools). There can be no criminal history inquiries until the initial job interview.

Ohio

Applies to public employers. States that there can be no inquiries until a conditional offer has been made.

Oklahoma

Applies to state employment. No questions about criminal history can be included on initial job applications.

Oregon

Applies to public and private employers. There can be no criminal history inquiries before the first interview or until a conditional offer is made.

Pennsylvania

Applies to public employers for non-civil service positions within the governor’s jurisdiction. Requires that there be no inquiries on initial job applications. All employers must assess cases as they pertain to the job sought.

Rhode Island

Applies to public and private employers with more than 4 employees. No inquiries can happen until the first job interview or later on in the process.

Tennessee

Applies to state employment. Requires no criminal history inquiries about records on initial job applications.

Utah

Applies to public employers. There can be no criminal history inquiries before the first interview or until a provisional offer is made.

Vermont

Applies to public and private employment. Requires no criminal history inquiries about history until an interview or until a candidate has been deemed qualified.

Virginia

Applies to state employment in the executive branch. Inquiries can be made once a candidate is deemed otherwise qualified.

Washington

Applies to private and public employers. Inquiries can be made once a candidate is deemed otherwise qualified.

Wisconsin

Applies to public employers. Inquiries can be made once a candidate is deemed otherwise qualified.

Frequently Asked Questions:

What Is the Meaning of Ban-the-Box?

The Ban-the-Box movement calls for the “box” declaring an individual’s criminal record to be removed from the early stages of a job application process. This instead gives applicants a chance to show off their qualifications and skillset before being “tarnished” by any criminal record.

Final Thoughts

The Ban-the-Box movement champions fair hiring processes, inmate reform, and the lawful use of background checks. The movement is a significant step forward for reintroducing former inmates into society by making them more likely to secure a job and stop them from reoffending.

The movement pushes employers to find the best candidate based on their skills and work history, ensuring an employer can find the best person for their team, despite any criminal records that the individual may possess. If you’d like further guidance on screening applicants through the recruitment process, consider contacting ScoutLogic today.

David Garcia

David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.

David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.