What is “Ban the Box?” Generally speaking, it is an international campaign seeking to eliminate the question—“Have you ever been convicted of a crime?”—from employment applications.  “Ban the box” laws usually provide that an employer must wait to ask applicants about their criminal histories until after a conditional offer of employment is made AND that an employer must consider how the individual criminal history is job-related for the position in question.

There currently are 21 states and over 100 cities and counties that have a “ban the box” law.  Further, 7 states have statewide “ban the box” laws that apply to private employers—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island.

The fact is, these laws have been enacted and are here; and going forward, more states, cities, and counties will be enacting some form of a “ban the box” law.  So for now, and to make sure your company is not breaking the law, just set aside politics, morality, and concepts of right and wrong or fair and unfair regarding these laws.

“Ban the box” laws DO NOT require employers to hire individuals with any and all criminal backgrounds, and the laws still permit employers to conduct background checks later in the hiring process. Remember: you must follow the requirements of the Fair Credit Reporting Act (FCRA) when performing a background check through a consumer reporting agency.

Instead, “ban the box” laws direct WHEN an employer may ask about an applicant’s criminal history and WHAT types of inquiries can be made.

Before asking an applicant or employee about his or her criminal record, always check whether you are subject to any state or local laws regarding the following:

  • At what point in the application process you may ask about criminal histories
  • Whether there are certain categories of crimes you may not ask about
  • Whether there is a prohibition on asking about certain convictions older than a certain number of years
  • Whether you may ask about arrests that have not resulted in convictions
  • Whether you may ask about sealed or expunged records
  • Whether you may ask about juvenile convictions

After you have asked an applicant or employee about his or her criminal record at the appropriate time—and have appropriately limited the scope of your inquiry—there are still limits on how you may use the information you receive. In addition to state and local laws, Title VII of the Civil Rights Act comes into play. Decisions to fire or not to hire individuals on the basis of their criminal histories must be job-related and consistent with business necessity.

So, before taking adverse action on the basis of an individual’s criminal history—in order to avoid using criminal history information in a discriminatory manner—always consider the following:

  • Relationship between the crime and the nature of the relevant position
  • Length of time that has passed following the most recent conviction
  • Nature of the specific offenses
  • Nature of the sentencing
  • Number of convictions
  • Age of the individual at the time of the most recent conviction
  • Evidence of rehabilitation
  • Extent to which the individual has been open, honest, and cooperative in the application process

To ensure you are in compliance, review your company’s policies regarding exclusions based on criminal history. And if your company has locations across various jurisdictions, avoid blanket employment applications—make sure your applications are tailored to fit each jurisdiction’s laws.