What Employers Should Know Now That More States, Cities are "Banning the Box"

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What Employers Should Know Now That More States, Cities are "Banning the Box"

A movement to remove one question from employment applications — the question regarding an applicant’s criminal history — is sweeping the nation and has become law in more than 60 cities and 12 states, with more to join soon.

Known as “Ban the Box,” these laws remove the criminal history question on a job application and delay the background check until later in the hiring process.

Statewide Ban the Box laws have been passed in 13 states.* Additionally, cities and counties in 25 states and Washington, D.C. have passed local Ban the Box legislation.**

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses. And many jurisdictions at both the state and local levels have pending Ban the Box laws that extend to private employers.

Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications. Several cities have also passed Ban the Box laws that apply to private employers, including Baltimore; Buffalo, N.Y; Indianapolis;

Philadelphia; Rochester, N.Y.; San Francisco; and Seattle. The list of cities with Ban the Box laws continues to expand each year.

While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply.

In addition, the Equal Employment Opportunity Commission (EEOC) recommends — as a best practice for all employers — removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer). The EEOC guidance also requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that applicants are individually assessed for the position.

What’s an employer to do?

Employers need to be aware of any Ban the Box legislation in their state, city or county and be well acquainted with the requirements of the law. This includes ensuring those who are involved in the hiring process are trained to avoid making criminal background inquiries until after any job interview has been completed. Employers should review job applications and other documents used in the hiring process (including any online questionnaires) to ensure compliance with state or local Ban the Box laws.

Employers should also discuss any Ban the Box legislation that the employer is obligated to follow with their background check provider to ensure they are obtaining only information that may be considered during the hiring process.

Undoubtedly, there are many questions regarding the impact and proper compliance with new and proposed Ban the Box legislation. Employers with questions regarding how they should comply should consult with qualified employment counsel, including a professional employer organization.

Deby Skawinski contributed to this article.

*California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, and Rhode Island have all adopted statewide Ban the Box laws.

** Cities or counties have enacted Ban the Box legislation in the following states: California, Connecticut, Delaware, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington, Washington, D.C., and Wisconsin.

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