Ban-the-Box is a campaign started in 2004 by civil rights groups advocating for the removal of the box applicants have to mark if they have a criminal record. Advocates of Ban the Box claim employers become biased and discriminate against applicants once they know they have a criminal record. Because 1 in 4 adults in the U.S. have past convictions, the check box eliminates a large percentage of the population in the hiring process without considering their other qualifications. In some states and cities, this is seen as discrimination because, according to the Southern Coalition for Social Justice, only 17 percent of white applicants with criminal records get interviews compared to 34 percent without records. The numbers are even worse for African Americans where only 4 percent with criminal records receive interviews compared to 14 percent without past convictions.
According to the National Employment Law Project (NELP), over 100 cities and 18 states have passed some form of Ban-the-Box legislation. Many states have slight differences in their version of Ban-the-Box. For example, in Massachusetts employers can ask candidates about their criminal history after the initial application whereas in Hawaii employers can’t ask about criminal records until after making an offer of employment. So, it’s essential for employers to be aware of the changes in their states. Employers who are unaware of the updated laws aren’t exempt from the consequences of violating them.
Oregon is one of the more recent states to pass legislation which will take effect in January 2016. Under the new law in Oregon, employers can’t inquire about criminal records initially. They can ask candidates about past convictions during the interview or after a position of employment has been offered. New York City also joined the Ban-the-Box movement and passed the Fair Chance Act in June 2015. Under the Fair Chance Act, employers can’t inquire about a candidate’s criminal history until after giving an offer of conditional employment. Employers can rescind the offer of employment after conducting a background check but they must explain and discuss the reasons with the applicant.
Avoid Violating Ban-the-Box Laws
To avoid risking violation of Ban-the-Box legislation, employers should take a few preparatory steps. First, they should double check the laws in their state, city, and county. What are employers allowed to ask applicants about their past? For example, some laws prohibit employers from asking about non-conviction arrests. The Society for Human Resource Management (SHRM) is a reliable resource for information about specific states. Next, they should revise their employment applications to meet the new requirements. If you have a little box applicants are supposed to check if they have a criminal record on your application form, get rid of it if required. And, finally, make sure you ask about past convictions at the right point in the hiring process.
Other Considerations
Despite the Ban-the-Box legislation, employers should still conduct background checks as long as they comply with the new rules. Employers have a responsibility to protect their employees and provide a safe work environment. Also, employers should consider how this new legislation interacts with previous laws. According to the SHRM, some of the Ban-the-Box requirements conflict or overlap with other existing background screening laws such as anti-discrimination laws and the Fair Credit Reporting Act (FCRA). All of these intricate rules and laws can be extremely difficult and time-consuming to decipher and follow properly. As a background screening check company, it’s our job to stay on top of these issues so you don’t have to. If you have any questions about Ban-the-Box legislation, feel free to contact us!