Examining the Growing Trend of ‘Ban the Box’

Employers often seek as much information as possible about their candidates and the strengths and competencies they can bring to the company. But is asking about their criminal history during the application process going too far?

With the proliferation of “ban-the-box” laws in the U.S., whereby multiple states and local governments have passed legislation requiring that employers remove the questions pertaining to previous arrests or convictions from employment applications, that seems to be the trend.

While many of these laws pertain exclusively to employers in the public sector, there are a growing number of laws that apply to private employers as well. Such laws are currently in place in 13 states, with New Jersey being the latest to join the “ban-the-box” movement in August 2014 and Georgia lawmakers considering coming aboard as well. Many local jurisdictions have also banned the box, including Baltimore, Philadelphia, Seattle, Buffalo, San Francisco and, most recently, Washington, D.C.

As such laws continue to gain steam, employers must understand their responsibilities and how they can ensure compliance. But the most effective strategy is to stay ahead of the curve by working to eliminate the criminal history question before local regulations mandate it.

The Need for Ban-the-Box Laws

Ban-the-box laws are driven in response to the growing view that employers with access to the criminal history of their applicants will result in adverse employment action. For instance, if an employer sees than an applicant had been arrested previously, this knowledge may influence, whether knowingly or unknowingly, their decision about whether to hire or promote that individual. Moreover, asking about criminal history at the beginning of the application process can automatically exclude a large number of candidates who may otherwise be qualified. As nearly one in three Americans has a criminal history record, even if arrests didn’t lead to conviction, the number of individuals who may be turned away is enormous. Ban-the-box laws aim to ensure that companies assess job candidates on their skills and abilities at the forefront, rather than being swayed by incidents in their past that may have no bearing on their ability to perform the job.

Ban-the-box laws generally don’t forbid asking questions about criminal history outright. Instead, they are designed to push such inquires further back into the hiring process.

Complying With Current Laws

As ban-the-box laws continue to proliferate at both the state and local levels, private employers must ensure they understand how these laws impact their hiring processes. Failure to do so can result in litigation from applicants who were denied due to their criminal history or in some cases fines by regulatory authorities. Despite 13 states now having such laws in place, these legislations don’t ban the box absolutely and federal laws still take precedence.

Employers must also be aware that, aside from locations that have already enacted ban-the-box laws, other states and cities also have limitations, though not as extensive, on asking about criminal history. Be aware of all laws in your area and adapt job applications and hiring processes accordingly.

Consider the recent example of Baltimore, which passed ban-the-box legislation for public and private employers alike on May 15, 2014. The law prohibits any employers with 10 or more full-time employees from requiring their applicants to provide criminal history information prior to a conditional offer of employment. Employers who violate Baltimore’s ordinance may face a number of penalties, such as back pay, reinstatement, compensatory damages and reasonable attorney fees, making it crucial that they change their processes to comply.

Ban the Box, Improve Hiring Process

As ban-the-box laws continue to expand, employers must be able to keep up with those changes to ensure compliance.

But the laws aren’t just about following the rules to avoid penalties; there is real benefit for the employer in avoiding the question about criminal history up front, in terms of accessing a larger candidate pool to find the individuals most qualified for their positions. As such, employers have much to gain by taking the initiative to remove the question of criminal history from their applications, rather than waiting for such laws to take effect in their own locations. In doing so, they can develop a more inclusive hiring strategy that enables them to advance the candidates who are most qualified, instead of disqualifying certain individuals right from the start.