In the summer of 1998, Hawaii passed a law restricting employers from considering candidates' criminal history until a job offer had been made. When Minnesota followed suit a decade later, a nationwide movement was born.
"Ban-the-box" laws requiring employers to remove criminal-history questions from employment applications have been enacted in 33 states and more than 150 cities and counties.
Primarily covering the public sector, many ban-the-box laws also apply to private-sector employers, seeking to protect applicants and candidates convicted of a crime from automatic disqualification during the selection process. In some cases, employers can inquire or check for criminal history after conducting a first interview; others must wait until they've extended a job offer.
The dilemma for HR and hiring managers lies in finding the balance between giving applicants with a criminal history a chance to be evaluated on their qualifications and being liable for negligent hiring.
Many ban-the-box and related fair-chance hiring laws incorporate the 2012 Equal Employment Opportunity Commission (EEOC) guidance on the use of arrest and conviction records in employment decisions.
"Robust fair-chance hiring laws delay records-related inquiries until after a conditional offer of employment, and ensure a fairer decision-making process by requiring employers to consider the job-relatedness of a conviction, time passed, and mitigating circumstances or rehabilitation evidence," said Beth Avery, staff attorney with the National Employment Law Project, a New York City-based worker advocacy organization.
The National Federation of Independent Business (NFIB) argues that ban-the-box laws unnecessarily mask relevant criminal-record information about prospective employees that could affect the safety and security of the business, its workers and customers, as well as make the hiring process more difficult.
"Ban-the-box laws make it harder for employers to talk about a criminal record at a time that is convenient for them," said Juanita Duggan, president and CEO of NFIB. "This means that a small-business owner may spend hours, days or even weeks going through the hiring process only to find a worker is unqualified."
She added that ban-the-box laws prohibiting employers from asking about criminal history before extending a job offer fail to acknowledge that employers may have a legitimate reason to find out about a criminal record sooner rather than later.
It's a common misconception that eliminating the box equates to hiring dangerous criminals, said Kevin Bachman, an employment-screening expert and founder of the CRA Doctor, a consultancy focused on improving the background-check process. "That's simply not true—ban-the-box just prevents an employer from asking upfront and knocking out the candidate without determining whether they'd be a good fit for the job," he said. "A good background check should uncover that information."
Another criticism of the movement is that it has morphed into something different from where it started, according to Stephen Woods, an attorney in the Greenville, S.C., office of Ogletree Deakins. "Once a clear reference to a specific criminal-history box on an employment application, [the laws] have taken on a broader meaning, with some now including restrictions on employer consideration and use of certain criminal information, unique pre-adverse and adverse action letter requirements, and other requirements well beyond the box."
With no federal ban-the-box statute applicable to private employers, companies that hire for positions around the country must comply with a hodgepodge of requirements across states and even localities.
"It is challenging for large, multistate employers to navigate myriad ordinances," Bachman said. "If they do ask for criminal histories, do they use one application for the whole country and a separate one for Rochester, N.Y.? What about Boston? Or Austin? How do they ensure a consistent, compliant process?"
Adding to the uncertainty is that the effectiveness of ban-the-box statutes has been mixed, according to research. Some studies show that the policies reduce employment rates for minority applicants.
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Going Beyond the Box
Most ban-the-box laws do much more than just eliminate a check box. Depending on the jurisdiction, ban-the-box laws may regulate when an employer can ask about criminal history, provide background-check disclosures and authorization forms, and conduct a background check.
"For employers that want one approach across all states and localities, the most conservative approach is to wait until after a conditional offer of employment has been made to ask about criminal convictions, require review of the background-check disclosures or completion of the background-check authorization, and run a background check," Woods said. However, only about 35 percent of the statutes are that restrictive, he added. "The other 65 percent of the states and localities with ban-the-box restrictions typically allow inquiries and background checks earlier—after a first interview, for example."
Some ban-the-box laws impose restrictions on an employer's consideration and use of criminal-history information, beyond the EEOC guidance. "For instance, New York City's ban-the-box law requires the consideration of eight specific factors when evaluating criminal-history information in an employment context," Woods said. "Other jurisdictions prohibit the consideration of certain criminal records at all."
Several ban-the-box laws require pre-adverse and adverse action notification to be state- and locality-specific. "New York City and Los Angeles have ban-the-box laws that greatly expand the Fair Credit Reporting Act's pre-adverse action process by requiring additional steps and mandating the use of specific forms throughout the pre-adverse and adverse action process," Woods said.
Five business days is usually the least amount of time considered to be a reasonable waiting period before employers can take adverse action against the applicant; the Federal Trade Commission has decided that five days gives candidates enough time to dispute the report. Some localities, including San Francisco, Montgomery and Prince George's counties in Maryland, New York City, and Philadelphia, have longer periods.
Woods pointed out that a few jurisdictions have mandated additional language in adverse action letters. "Portland, Ore., requires that an employer identify the specific crime leading to the adverse action in an adverse action letter, and Los Angeles requires that an employer provide a revised analysis of the job-relatedness of a specific crime at the time of the adverse action letter in certain circumstances."
Ban-the-Box Backlash
Finally, while some jurisdictions are passing new, more-aggressive restrictions, other jurisdictions have begun to question the cost of different ban-the-box laws on employers, Woods said. Indiana and Michigan have passed statewide laws that limit local ban-the-box laws. "As the ban-the-box movement seems to be accelerating among certain jurisdictions, other jurisdictions seem to be pumping the brakes," Woods said. "While this banning-the-ban movement is in its infancy, it remains to be seen how it will impact other states and regions."
Bachman said there may be some backlash at the margins, but ban-the-box is here to stay.
"Ironically, more employers trying to navigate myriad local ordinances may eliminate the box, not because they believe or don't believe in its virtue, but because it's simply harder to keep it and remain consistent and compliant within their hiring process," he said.
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