November 10th, 2016 | Debbie Lamb, Sterling Talent Solutions

Is Ban the Box Out of Control?

Is Ban the Box Out of Control? | Sterling

When filing out a job application, were you required to check a box asking if you had a criminal record? I have seen these on job applications in the past, but more and more these boxes are being eliminated because of ban the box legislations being passed across the country. While the laws could be reducing discrimination against some people being hired for a job, it can also be quite a challenge for employers.

What is Ban the Box?

Ban the box laws make it illegal to include a checkbox on a job application asking about criminal history. Currently, over 150 cities and counties have adopted the ban the box rules. 24 states across the United States have also adopted legislation supporting this policy. These laws prevent companies from asking about a job applicant’s criminal history on an application and during interviews. The criminal history questions can be asked later in the hiring process, such as after an offer is made to the applicant and can be investigated, with the consent of the applicant, during a background screening check. The laws are made to give applicants a fair chance by focusing on their qualifications and not on possible criminal history.

The Complexity of Ban the Box Rules

The ban the box legislations date back to 2003 when a group of formerly incarcerated individuals and their families organized “All of Us or None”, and organization created to make it easier for those with criminal records to advance further in the hiring process. In November 2015, President Obama endorsed ban the box rules to “promote rehabilitation and reintegration for the formerly incarcerated.” This declaration increased the number of states and municipalities creating their own ban the box rules. Currently, the ban the box laws apply only to public employees, but private employers are increasingly affected by the rules.

With many different ban the box laws on the books across the country, compliance issues are created because the laws are not uniform or consistent from city to city or state to state. This can create unnecessary additional legal requirements, waste of time and resources and increase frustration levels for those who are impacted. Employers in cities regulated by the laws have to evaluate more candidates for open positions that normally would not qualify for the job in the first place. Plus, if an organization does not comply with the rules, thousands of dollars of fines can be applied to the business.

The laws are well intended, but they have created quite the compliance challenge for employers. The laws:

  • Prohibit employers from asking about criminal history or conducting criminal background checks on applicants prior to the initial interview or before a conditional offer of employment
  • Require employers to take into consideration specific factors that may mirror or slightly differ from federal Equal Employee Opportunity (EEOC) guidance
  • Require special notifications and appeal processes that may differ from federal consumer laws under the Fair Credit Reporting Act (FCRA)

Some cities in the U.S. like Portland, take the laws even further, requiring employers to disregard applicant disclosure of a criminal history during an interview. These laws can make it hard to know when it is permissible to ask about past criminal history and when to conduct a background check.

Ban the Box Issues for Employers

Sterling believes that the employer is the best able to assess their own hiring needs. There could be circumstances that caused an individual to be convicted of a crime that could also make them unsuitable to be an employee. The ban the box laws could cause significant problems for employers because the hiring process is less efficient and time consuming for all involved, the rejection of inappropriate candidates becomes more difficult and the cost of hiring increases.

Companies that do business in numerous jurisdictions could face a tough challenge complying with multiple variations of the ban the box laws and regulations. Some organizations might even be less willing to conduct criminal background checks out of fear that an unintended violation might result in fines or even litigation, even though failing to do background screening could result in costly bad hires.

Any type of labor law judgments need to be taken in consideration forcing organizations to review their employment applications, interview practices and hiring processes to make sure they are compliant to the new laws. It is crucial for companies to be aware of the specific hiring regulations in their city, county and state. Even more important is that companies have to take action in order to comply with the regulations by talking to legal counsel and having a third party employee screening company that is up-to-date on the ban-the-box laws.

You can learn how to protect your business from the dangers of not complying with the Ban the Box laws in our new white paper, Is Ban the Box Out of Control?

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.