'Ban-the-Box' Laws Continue to Spread: Avoid Common Misperceptions

Many employers assume they cannot ask about criminal history whatsoever during the hiring process, but "ban-the-box" laws permit delayed inquiries about criminal conviction history late in the hiring process.

Jurisdictions with 'Ban-the-Box' Laws

"Ban-the-box" laws, which now cover federal contractors, generally prohibit employers from asking about criminal history on employment applications. Jurisdictions with ban-the-box laws that apply to private-sector employers include:

• California.
• Los Angeles.
• San Francisco.
• Colorado.
• Connecticut.
• District of Columbia.
• Gainesville, Fla.
• Hawaii.
• Illinois.
• Des Moines, Iowa.
• Waterloo, Iowa.
• Maine.
• Maryland.
• Baltimore.
• Montgomery County, Md.
• Massachusetts.
• Minnesota.
• Columbia, Mo.
• Kansas City, Mo.
• St Louis.
• New Jersey.
• New Mexico.
• Buffalo.
• New York City.
• Rochester, N.Y.
• Suffolk County, N.Y.
• Westchester County, N.Y.
• Oregon.
• Portland, Ore.
• Philadelphia.
• Rhode Island.
• Columbia, S.C.
• Austin, Texas. (This law is potentially pre-empted by state law TX HB 2127; however, its constitutionality is being challenged.)
• DeSoto, Texas. (This law is potentially pre-empted by state law TX HB 2127.)
• Vermont.
• Washington.
• Seattle.
• Spokane, Wash. 

Interactive Resource: Multistate Laws Comparison Tool

Public Policy Reasons for Laws

The public policy intent underlying the "ban-the-box" movement "is to increase fairness for applicants with a criminal history who might otherwise be automatically disqualified from consideration," said Emily Borna, an attorney with Jackson Lewis in Atlanta. "This is intended to enable those with a criminal conviction history to return to the workforce and contribute productively to society, distancing them from environmental factors that may have influenced them to commit a crime in the first place, making them less inclined to commit crimes." 

This does not mean employers must throw caution to the wind and cannot consider a candidate's criminal conviction history as appropriate before embarking on an employment relationship, she said. Rather, these laws require covered employers to delay an inquiry about criminal conviction history until late in the hiring process to ensure a candidate is evaluated on their merits.

"Understandably, an employer might be reluctant to trust an individual recently convicted for fraud and embezzlement with an accounting job accessing business funds daily," Borna said. "But what relevance does a 17-year-old conviction for marijuana possession have in considering an applicant for that same position or a different one, such as for a food service worker position?" 

In the U.S. Equal Employment Opportunity Commission's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act [of 1964], employers are encouraged to consider the following factors in making job-related hiring decisions: 

• The nature and gravity of the offense(s).
• Time passed since the conviction or charge and/or the completion of the sentence/probation or release from jail/parole.
• The nature of the job being filled.

Common Misperceptions

Contrary to conventional wisdom, most states let employers ask about criminal history, as long as they do so at a legally appropriate time and ask a lawful question, said Pamela Devata, an attorney with Seyfarth in Chicago. "Employers generally are allowed to ask about criminal history after a conditional offer of employment." 

Some employers also don't understand that many "ban-the-box" laws are broader than just regulating the timing of the criminal history question, she added. Some laws put limitations on what can be considered by an employer — for example, marijuana use convictions restrictions in California — or how far back an employer can ask about criminal convictions.

"Additionally, many 'ban-the-box' laws also require employers to conduct a specific individualized assessment analysis as to why a conviction may or may not be job-related and to have explicit language as to their analysis in any adverse action letters explaining to the applicant the reasoning for their decision," Devata said, citing Illinois as an example.

Interplay with Other Laws

HR professionals need to keep current on "ban-the-box" laws, as well as the interplay between these laws, fair chance laws, and clean slate initiatives, Devata said. While they are all different, there is an overlap relating to when and how an employer can use criminal history in hiring depending on where an applicant lives or will be working.

"With the enactment and growing number of clean slate laws, employers will need to evaluate what steps to take, particularly with respect to older convictions that may otherwise be eligible for expungement or seal," said Susan Corcoran, an attorney with Jackson Lewis in White Plains, N.Y. "That is why it is important to have a dialogue with the candidate about possible disqualifying information before making any decision about a conviction that appears on a background check."

Toolkit: Conducting Background Investigations and Reference Checks

Background checks are still often advisable to avoid negligent hiring claims and may even be required in some safety-sensitive roles, Borna said. 

HR professionals "should be selective, consistent, and deliberate about when and to what extent a criminal history background check is conducted," she said. "Performing an individualized assessment of an applicant's job skills, experience, education, and character during the hiring process, before obtaining a criminal history background check is prudent and even mandated in certain jurisdictions."