What Employers Need to Know About the “Ban the Box” Movement

Ban the box

A legal and social movement is coming at you like a freight train. The movement restricts employers from asking potential hires about criminal backgrounds early in the job application process.

It’s been dubbed “Ban the Box” by some. Others, including President Barack Obama, call it a “Fair Chance to Work.”

According to figures provided by the National Employment Law Project, more than 70 million Americans have an arrest or conviction record.  The rationale behind the campaign is that, if employers ask up front on the job application about criminal history, many of those 70 million may be excluded.

And some of those might have been qualified for the job.

What is Ban the Box?

The Ban the Box campaign was launched in 2004. It is so named for the checkbox on applications asking about a job applicant’s criminal background.

Although the movement is more than a decade old, in just the past two years it has “gone viral” in the words of the Society for Human Resources Management.

Nationwide, more than a hundred cities and counties have passed Ban the Box legislation, as of September 2015. In addition to the local jurisdictions, 18 states have passed some form of legislation, per the National Employment Law Project.

Each jurisdiction’s laws and policies differ.  Some laws apply mainly to public or government jobs. Others also apply to private enterprises, or to businesses over a certain size, or those involved in government contracting.

Delayed Inquiry — Or Stronger Restrictions?

Many of the laws seek to delay employers from asking about criminal history until after an interview or conditional job offer has been extended.

The rationale is that as an employer, you should at least consider the person’s qualifications. Later on, the employer can inquire into factors such as convictions and make a more informed choice at that point.

Jesse Stout, policy director at San Francisco-based Legal Services for Prisoners with Children, a Ban the Box partner, told Fox Business that the Ban the Box effort is meant to level the playing field.

He said, “The idea is that someone … who sits down for an interview is not judged based on their convictions.”

Other laws, however, go further than merely delaying consideration.

Some laws and ordinances restrict the employer’s ability to consider certain types of criminal history at all. Or they specify conditions of how and when criminal history may be considered. Or they impose added regulatory steps in the hiring process.

For example, the City of San Francisco implemented the Fair Chance Ordinance. San Francisco’s law applies to employers with 20 or more employees. Employers are supposed to (1) consider only criminal convictions that directly relate to job requirements, (2) take into account how long ago the conviction occurred, and (3) consider whether there were any mitigating factors or rehabilitation.

But San Francisco’s ordinance goes even further. Employers are required to affirmatively state in job advertisements that they will consider applicants with a criminal history. They also have to provide a notice to applicants and give them a copy of any background check that results in a decision not to hire.

Strong Proponents, Strong Opponents

The Ban the Box movement has been joined by advocate groups, such as legal aid organizations and elected officials. The National Employment Law Project, which is also backing changes to the minimum wage, has it as one of their top national campaigns.

Those who support Ban the Box point to it as giving a fair chance.

That sounds reasonable to many people. And, in fact, many employers stopped automatically excluding applicants with criminal backgrounds long ago. Instead, they evaluate the circumstances on a case-by-case basis.

Ban the Box also has its critics.

The National Retail Federation criticized the group and its campaign for exposing retailers, their customers, and employees to potential crime.

New Jersey Chamber of Commerce official noted that the Ban the Box effort is one more directive that makes it more challenging for companies to manage their businesses.

That seems to be one of the concerns of critics. Ban the Box imposes additional regulatory burdens.  It is yet one more thing to make the hiring process more complex and cause employer missteps, even when you’re trying to be fair.

Also, if you interview someone and consider all the facts carefully but then later exclude the person, you could still end up facing a legal challenge.

In April 2012, Ban the Box and other groups submitted testimony and research to the Equal Employment Opportunity Commission. The EEOC then moved to clarify and strengthen its policies. The EEOC updated its Enforcement Guidance on Consideration of Arrest or Conviction Records in Employment Decisions. Among other things, the EEOC guidelines make a distinction between arrests and convictions, stating that, “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.”

Under EEOC rules, if you decline to hire someone due to criminal history, and that person is a minority or part of a protected class, the business could end up facing EEOC action due to adverse impact on the protected class.

Therein lies another concern of some employers. Even if employers make a case-by-case judgment, they could still end up facing legal action if it tends to exclude minorities more so than others.

How Employers Can Comply With Ban the Box

Addressing questions of criminal history is a complex legal area. Small businesses should do these things to make sure they are in compliance with Ban the Box:

  • Determine which laws apply to your company — Consult with your employment counsel to see if there are any state or local laws that apply to your business, and what they require. Also, EEOC guidelines may apply.
  • Revise and reprint job application forms — Review your employment application form. Does yours ask about criminal history? Consult with your employment counsel and consider removing that question or check box. Then have the form reprinted. As a best practice, more and more employers are voluntarily removing that question. Even those who still strongly believe they can and should inquire into criminal history are doing it later in the hiring process. And, while it may be your company’s practice to review the facts of each situation individually, a check box on a job application has a chilling effect. It feels like an automatic disqualifier. It may keep good candidates from applying. For that reason, alone, some employers remove it.
  • Destroy outdated application forms — Make sure only the new version is used. It’s not uncommon for an outdated form to stay online in one place, even if a new one goes up on another URL. Managers may erroneously keep outdated forms thinking they are doing the company a favor by using up the old supply, too.
  • Review internal HR policies — Update your company’s policies as needed.
  • Train hiring managers — Instruct them not to ask about criminal history during interviews. They could say the wrong thing at the wrong time. It’s best for someone who is knowledgeable, like an HR manager, to handle all legally sensitive matters.
  • Document decisions — Document any hiring decision that is based in whole or in part on a criminal history, including other factors that entered into the decision. If challenged, you will need the documentation. You may also be required to provide it to the applicant.
  • Understand how to read background checks — Talk with any background checking services you use. See how they designate criminal history. For example, do they note whether an arrest resulted in a conviction or whether the charge was dismissed later? Is the difference between an arrest and a conviction clearly distinguished?
  • Stay up-to-date — Ask your employment attorney to notify you of any future legal changes. Or stay aware of any changes through business organizations to which you belong.

Ban the Box Laws Already in Effect

As of early September 2015, a total of 18 states — plus the District of Columbia — have adopted Ban the Box legislation in some form. They are:

New Jersey
New Mexico
Rhode Island
Washington, D.C.

Also, more than a hundred cities and counties — including Boston, Chicago, Seattle, Newark, N.J., and Indianapolis — have implemented some form of Ban the Box for public employees. In some cases, the laws apply to private company hires or those hired by city/county vendors.

Remember, each law is different.

For an updated list, along with links to where to find the laws, see the Ban the Box information compiled by NELP attorney Michelle Natividad Rodriguez on the organization’s website, NELP.org.

Job Hunter Photo via Shutterstock

Anita Campbell Anita Campbell is the Founder, CEO and Publisher of Small Business Trends and has been following trends in small businesses since 2003. She is the owner of BizSugar, a social media site for small businesses.