“Ban the Box” is a fast-growing nationwide movement that seeks to protect job applicants who have criminal records by eliminating any inquiry into such histories on initial job applications. As of 2019, 35 states and more than 150 cities and counties had adopted ban-the-box laws, according to the National Employment Law Project.
At the federal level, ban-the-box initiatives enjoy a level of bipartisan support that is, at least at present, highly unusual.
In early 2019, the House Committee on Oversight and Reform held a hearing to review a broad measure, the Fair Chance to Compete for Jobs Act, that proposed extending the policy to federal employers and contractors. (The Act included important exceptions for national security and other positions for which criminal history information is required by law.) The committee noted that companies such as Walmart, Koch Industries, Target, and Home Depot had already implemented such policies.
During the hearing, which centered on the testimony of panelists from the US Senate, the bill was endorsed by such disparate political figures as Wisconsin Republican Senator Ron Johnson and New Jersey Democratic Senator Corey Booker. As the committee concluded, “‘Ban the Box’ legislation has been adopted in red and blue states across the country—a rare sign of agreement on an issue that transcends partisan politics.”
Given this emergent reality, employers are advised to internalize some key principles when navigating these restrictions:
• Take note that these strictures include interplay of the adverse action and individual assessments protocols discussed here and here.
• Employers may still inquire about criminal convictions, but the Equal Employment Opportunity Commission asks that such questions be deferred until after an offer of employment has been made.
• There are at least two reasons for employers to make the inquiry, even if a comprehensive background check has revealed nothing:
o First, screeners are typically allowed to report only on convictions that are no more than seven years old. Asking can help get around that limitation.
o Second, posing the question can help weed out dishonest respondents. At least one federal court has deemed candidate lies grounds for withholding employment or promotion.
• Employers must still be alert to state and local notification rules, even if the information in question is not from a background check. For example, New York City and Los Angeles require employers to download city-specific forms and give full reports to denied candidates. Other jurisdictions—from Waterloo, Iowa, to Montgomery County, Maryland—have also imposed their own protocols.
In sum, an abundance of caution is in order. Removing the criminal-history box from application forms in all jurisdictions is the safest route. And with rare exceptions, it’s wise to wait to make criminal-history inquiries until after an offer has been made.
