Hundreds of cities, counties, and even states have implemented Ban the Box rules that prohibit questions about criminal conviction history on job applications. Initially, the “box” referred to the box on a job application where candidates would indicate whether they had criminal histories, but these regulations have often expanded to govern when employers are allowed to ask about criminal histories.
Each Ban the Box law contains unique requirements, so be sure to check the laws in locations where you hire contractors or employees. For example, some laws govern whether you can ask about criminal history on a job application, and others go further to restrict you from asking about criminal history until a conditional offer is made.
Which states and municipalities ban the box?
As of April 2018, 31 states have implemented Ban the Box regulations.
The following have implemented laws for private employers:
- New Jersey
- Rhode Island
The following have implemented laws for public employers only:
- New Mexico
- New York
In addition to states, over 100 cities and counties now require Ban the Box practices for private employers. They include:
- Austin, TX
- Baltimore, MD
- Buffalo, NY
- Chicago, IL
- Columbia, MO
- Washington, D.C.
- Kansas City, MO
- Los Angeles, CA
- Montgomery County, MD
- New York City, NY
- Philadelphia, PA
- Portland, OR
- Prince George’s County, MD
- Rochester, NY
- San Francisco, CA
- Seattle, WA
- Spokane, WA
Ban the Box legislation is just one example in a growing trend of state and municipal fair-hiring laws. While Ban the Box typically governs when an employer can inquire about criminal history, some cities have instituted “Fair Chance Ordinances” that govern how criminal history is considered and require a show-your-work rule when denying applicants due to criminal records. Based on the Equal Employment Opportunity Commission’s guidance, you should evaluate offenses on background reports individually, rather than blanket exclusions. For more information, see our article on individualized assessment.
Incorporating Ban the Box laws into your hiring process
Whether these laws apply to you depends on multiple factors, including:
- Your company size
- Where you’re located or where you hire employees
- Whether you’re a government agency or private employer
- What industry you’re in (health care, child care, law enforcement, education, banking, accounting, insurance, transportation & security, and others often fall under different regulations)
Consult with your counsel to determine which Ban the Box laws apply to you, and based on that guidance you may want to review the language on your job descriptions and applications, and/or ensure that your hiring or engagement managers are not asking about criminal history as part of the interview process.
For example, some employers choose to replace language such as “Candidates with felonies in the past 7 years need not apply” with language such as “This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate,” providing a more accurate statement of how individualized assessment works.