Q: What does it mean to “ban-the-box,” and how does it affect our hiring process?

A: Ban-the-box legislation is quickly spreading throughout state and local jurisdictions. Even if your jurisdiction has not adopted such legislation yet, it is likely that it will do so in the not-so-distant future. Therefore, it is vital to understand both the rationale behind the legislation and how it will affect your organization’s hiring processes.

The “box” that is the subject of so much controversy is the commonly used checkbox on job application forms that asks whether an applicant has a prior criminal record. Limiting an employer’s access to a prospective employee’s criminal history at the initial stage of the hiring process is thought to decrease the likelihood that an employer will discriminate against an ex-offender, thereby reducing employment barriers for those individuals.

Ban-the-box laws attempt to effectuate this policy goal by limiting (1) what can be asked of applicants prior to hiring, (2) when inquiries into criminal history can be made, and (3) the type and age of offenses that may be considered by employers in making hiring decisions. Some research studies have suggested that “banning the box” has resulted in the unintended consequence of broader discrimination against minority applicants because of employer bias that such applicants are more likely to be ex-offenders.

Nevertheless, the movement continues to gain momentum. Recently, Connecticut joined the State of New Jersey, New York City, Philadelphia and many other states, cities and localities in enacting ban-the-box legislation for private employers. In addition, President Obama has banned the box by prohibiting federal agencies from inquiring into the criminal record of an applicant until the final phase of the application process.

It is important to note, however, that ban-the-box laws do not prohibit employers from ever inquiring into the criminal history of applicants. The laws concentrate on when and in what manner such inquiries may be made. The Philadelphia ordinance, for example, permits employers to inquire into an applicant’s criminal history after a conditional offer of employment has been made. The employer is then required to engage in an individualized assessment of the applicant, which includes consideration of the nature of the offense, the time that has passed since the offense, the particular duties of the job being sought, evidence of rehabilitation, previous employment history, and any character references provided by the applicant. In contrast, the New Jersey ban-the-box law allows an employer to inquire into criminal history after the applicant’s first interview. The New Jersey law is also much narrower than the Philadelphia ordinance; other than the timing requirement, it only prohibits an employer from considering expunged convictions and does not require that employers undertake any “individualized” assessment of the applicant’s conviction history.

Even if your jurisdiction has not yet been affected by ban-the-box, it is wise to begin adjusting your hiring procedures now so that you are prepared once such legislation arrives. At minimum, employers should make the following changes:

  • Remove the “box,” i.e., eliminate questions regarding criminal history from employment applications.
  • Ensure compliance with the federal Fair Credit Reporting Act , which requires disclosure and consent before running a criminal background check, as well as disclosures before taking any adverse action because of the results of the background check,
  • Train managers on what they can and can’t ask during job interviews. Where “ban the box” is in effect, questions regarding an applicant’s criminal history, whether oral or in writing, should be asked only when permitted by the applicable statute.
  • Take action to eliminate any unconscious bias against certain demographic groups in the recruiting process.
  • Keep abreast of pending ban-the-box legislation in your jurisdiction; once enacted, such legislation might place limitations on how an applicant’s criminal history may be considered in the hiring process.