Find out what Ban-The-Box Laws are and how they apply to your business
What is Ban-the-Box?
Ban-the-box is a movement that aims to encourage employers to consider a job candidate’s qualifications first before considering their criminal record. This campaign allows previously incarcerated applicants a fair chance in the job market by delaying the opportunity for employers to review a conviction or arrest record.
This campaign has been spreading worldwide, and momentum for these policies have been growing exponentially, particularly in recent years. A number of states have adopted statewide laws or policies regarding ban-the-box, and even more jurisdictions have also been extending their hiring laws.
How does Ban-the-Box affect hiring practices?
At the most basic, these policies require employers to wait until later in the hiring process to ask applicants whether they have ever been convicted of a crime (or some variation of this question), such as after conducting an interview or after making a conditional offer.
However, many ban-the-box laws include policies that pertain to how employers can request and consider an applicant’s criminal history for employment purposes, not just the time at which they do it. Although it is not a comprehensive list of all the ways in which ban-the-box laws may impact an employer’s ability to obtain and rely on an applicant’s criminal history information, below is a number of ways these policies may affect your company and hiring process.
Note: We are not lawyers and are not qualified to provide you with legal advice. For a more complete look into your state’s ban-the-box laws, consult your state’s laws or seek legal counsel experienced in this area of the law.
Ordering a Background Report
Most ban-the-box laws prohibit employers from obtaining any criminal history information from any source until a later time, such as after an interview or a conditional offer. This means that, even if questions about an applicant’s criminal history are not asked, employers may not find the information elsewhere, such as through ordering a criminal background report or doing searches on Google or public records.
Advertisements and Postings
Some jurisdictions regulate whether or not language about consideration of criminal history may be included in job solicitations, advertisements, and postings. Even further, some jurisdictions require that employers operating in their jurisdictions post a specific notice about the respective laws in the workplace. Notices regarding these policies and more information can be found on the cities’ websites.
Consideration of the Substance of Criminal History Information
Some policies prohibit employers from considering certain types of criminal history, depending on the time since the conviction or whether it was an infraction or not. Certain jurisdictions also require employers to perform individualized assessments of applicants’ criminal history before making employment decisions, and some jurisdictions require documentation of each assessment.
Before any adverse actions are taken, the federal Fair Credit Reporting Act (FCRA) requires that employers follow certain requirements if the decision is based, either in whole or in part, on the contents of a background report (“consumer report”) obtained from a third-party background check provider (“consumer reporting agency”).
Some laws have more requirements, such as pre-adverse and/org adverse action notices, even if the criminal history information was not derived from a background report obtained from a consumer reporting agency, or the explicit identification of the criminal history in question in the body of the notice provided. Furthermore, while the FCRA requires employers to wait a reasonable period of time between sending pre-adverse action and adverse action notices, some ban-the-box policies mandate a set waiting period.
Other laws may require adverse notices to include information about how to file a complaint regarding the assessment, and some jurisdictions have laws requiring employers to provide the applicant with a copy of any records on their criminal history information that were considered in the hiring assessment.
Steps to Take Following Ban-the-Box
Employers that use criminal history information in their hiring process should consider a full review of their policies, procedures, notices, and other documents to ensure that they are in compliance with their local ban-the-box rules, as pertaining to their organization.
Some considerations to take into account are that:
Inquires about criminal history information are made at the appropriate time;
Applicants receive the appropriate notices and enough time to consider the information before the employer makes a final decision on their application;
Managers, supervisors, and human resources professionals do not ask about or consider prohibited criminal history information, know how to respond to any voluntary disclosures of such information, and individually assess the criminal history of applicants;
Workplace notices are posted; and
Solicitation and job advertisements are drafted properly.
Why Ban-the-Box may be Detrimental
Because ban-the-box laws are specific to different states and jurisdictions, there may be slight differences in whether the information below applies to each state, city, or county’s policies.
Some ban-the-box policies may delay the hiring processes of employers to the point of detriment to both the employer and the applicant.
To the Employer
For the employer, conducting background checks and assessing each applicant’s history individually after the applicantsprogress through the entire hiring process can affect their ability to function efficiently by delaying an applicant’s start date or incurring high costs if selected applicants are disqualified for the position.
Because checks on applicant criminal history is typically delayed to the end of the hiring process and may be required to be conducted individually, it can increase the amount of time required for the evaluation process. This may delay the length of time it takes for employers to complete the hiring process and may be detrimental to the operations of the business depending on how time sensitive the hiring is.
Because criminal history checks are delayed, employers may choose to extend conditional offers to applicants depending on their conviction or arrest records. However, if the applicants selected are disqualified for the position as a result of the terms in the conditional offer, it may force the company to start the hiring process over from the beginning, incurring costs both from the time lost in the first hiring process, and the lost time that a hired applicant would have spent adding value to the company.
To the Applicant
An applicant may not apply to other positions or even defer the acceptance of other positions for which they previously applied if they expect to be offered the position with a certain employer. However, if the applicant is disqualified from the position as a result of a background check that is conducted towards the end of the hiring process, they may be delayed in their job search and even miss out on other available employment opportunities.
Ban-the-box laws are important to ensure that all applicants have a fair chance at being hired. However, requiring companies to delay the conducting of background checks to the end of the hiring process may have unintended consequences that prolong the process at the detriment of both the company and all applicants involved.