Banning the Box

Many employment applications used by employers over the years have had a section where the applicant was asked about criminal activity and checked a “yes or no” box and then asked to explain.

This is the box that is increasingly being banned by city, county, and state governments. Another name for Ban the Box laws are Fair Chance to Work laws.

Fair Chance to Work is a more accurate name—you can’t just remove any questions from the job application about criminal activity and be compliant with many of these laws. These various laws may dictate when in the process you may ask about criminal activity or request us to search for criminal records. For example, some jurisdictions require you to make a conditional job offer before obtaining a criminal record. Some jurisdictions only prohibit the practice if you have a certain number of employees. Some of the laws only apply to public employees while others include private employees.

Here is one source that provides some information on these laws.

We encourage you to discuss with your legal counsel (if you have not already) your strategy for dealing with these laws. (If your job applications still have the criminal activity yes or no box, we would make the call today.)

And one word of caution: if you determine that the particular state(s) or city/county locales that concern you do not have Fair Chance to Work laws, we would not relax. There are over 150 city and county laws and 35 state laws currently in force, but two years ago, it was about half that. This initiative was fast-moving even before current events; we expect it to accelerate.

Further, regardless of the particular state/city/county that concerns you or your number of employees, the (Federal) EEOC has issued guidance on this subject. their guidance states:

Some states require employers to wait until late in the selection process to ask about convictions.108 The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience.109 As a best practice, and consistent with applicable laws, 110 the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

And so, they are recommending you, at a minimum, not ask about convictions on the job application. In our next article, we will discuss some strategies for using criminal information in the hiring process as you comply with Fair Chance laws.

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