What Employers Need to Know About Ban the Box Legislation

Ban the Box.  Whether you agree or disagree with the concept, one thing we all can agree on is that this movement requires our attention in our organization’s hiring practices.  Depending on the states in which an organization hires individuals, “Ban the Box” takes a heightened level of importance since states and cities throughout the United States are enacting various forms of this legislation.  The future of hiring is rapidly changing so it is important for human resources professionals to be aware of existing and pending legislation that directly affects daily hiring practices in order to prevent an organization from experiencing legal ramifications due to noncompliance.

About “Ban the Box”

“Ban the Box” is the removal of any questions asking about an individual’s prior criminal record from an employer’s job application…essentially, barring any check boxes that an applicant might have had to mark on an employment application in the past.  The “Ban the Box” concept is based on the idea that limiting the employer’s access to the applicant’s conviction records prior to a job offer can help ex-offenders find employment based on their merit and skills instead of being eliminated from consideration for the position potentially due to the applicant’s past criminal record.  Through the “Ban the Box” movement, advocates of this concept express the belief that if hiring representatives did not know about the applicant’s criminal background, hiring representatives would not factor that information in the decision making process as the applicant goes through the employer’s hiring channels resulting in a more “fair chance” approach to ex-offenders.  The biggest benefit according to “Ban the Box” supporters is that when ex-offenders acquire employment, ideally, the recidivism rate would decrease which would also provide a boost to our overall economy.  According to an article published by NBC News, the latest U.S. census figures estimate approximately 70 million adults in the United States have some form of criminal record.  This equates to approximately one in four individuals in the United States with a criminal record.

Ban the Box legislation does not force an employer to hire an individual with a criminal record.  The ban would not necessarily prohibit an employer from conducting background checks; the checks would possibly occur later in the hiring process and/or once an offer is extended to the applicant.  Exceptions could exist for certain jobs as mandated by federal law (ex. prohibiting pedophiles from working with children, etc.)

History

In San Francisco, the “Ban the Box” campaign was started over a decade ago in a civil rights movement of formerly and currently incarcerated individuals and their families in an organized group, All of Us or None.  They began to encourage the local government to remove questions related to convictions from job applications so ex-offenders could be evaluated on their qualifications and not their prior record(s).  In their vision, any questions about convictions could be asked later in the hiring process, if needed.  The efforts by All of Us or None paid off; the city of San Francisco was the first to remove the question from city job applications.  This victory was the catalyst for the current “Ban the Box” movement.  In 1998, Hawaii was the first state to pass legislation to “Ban the Box” about conviction related questions on both public and private sector employment applications, statewide.

Current Ban the Box Laws and Ordinances

According to the National Employment Law Project (NELP), thirteen states have implemented some degree of a statewide “Ban the Box” Fair Chance Hiring Law.  Thirty states have enacted a local or state “Ban the Box” Fair Chance Hiring Law.  With the “Ban the Box” trend in motion, it is just a matter of time before additional states, cities and jurisdictions enact similar legislation.  The statewide “Ban the Box” legislation enacted in Hawaii, Massachusetts, Minnesota, and Rhode Island include employers in both the public and private sectors, and Illinois and New Jersey are following in their footsteps beginning in 2015.

To keep abreast of States and Cities who enact “Ban the Box” legislation, NELP has an interactive map that provides an overview of the current legislative status.  An overview of the legislation for the locations with “Ban the Box” legislation can be found here.  For the actual legislation, you will need to go directly to the state or city government website to access the passed law(s) in its comprehensive language.

Employers need to be aware of the legislation that exists and which is pending to be prepared for the potential impact on their organizations.  If your organization currently has hiring practices in multiple states and cities, or posts job listings nationally, it is important to be cognizant of the locales’ legal expectations.  At ExactHire, we take pride in doing our best to ensure our clients’ satisfaction is the highest possible. We do whatever we can to resolve clients’ current needs and identify potential needs.  After you speak with your legal counsel, and if you and your legal team decide changes need to be made to your employment application(s) to comply with legislation, the ExactHire team can work with you to create a new application with the verbiage you specify for compliancy.  Also, please know that one of the benefits of using HireCentric as your applicant tracking software is that you can create multiple employment applications, each specific to your needs.  For more information about updating your current employment application(s) and/or creating additional employment applications, please email support@exacthire.com.

Please note:  The ExactHire team is not legal counsel, and we do not offer legal advice, so any questions regarding your company’s eligibility for exemption with the “Ban the Box” legislation and/or proper verbiage for your company’s employment application(s) should be discussed with your company’s legal counsel.

Related links of importance:

• New Jersey’s The Opportunity to Compete Act
• Job Opportunities for Qualified Applicants Act: Illinois Ban the Box
• HEA 1482 Requires Indiana Employers to Update Employment Application Language Related to Criminal Record History
• Indianapolis City Leaders Pass Measure to Help Ex-Offenders Find Employment
• Washington, D.C. is the latest jurisdiction to “Ban the Box”
• EEOC Guidelines
• NELP Interactive Map

If you are not yet an ExactHire client, but are interested in using an applicant tracking system and online employment application, please visit our resources page for additional information or contact us today.

Image credit: rainbow cubes with holes by jared (contact)