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Cutting Through the Confusion with the Growing “Ban the Box” Laws
Published on 8/24/2015 12:00:00 AM
Cutting Through the Confusion with the Growing

Getting hired in today’s temperamental job market can be challenging. But for the 1 in 3 American adults with a criminal arrest or conviction, the obstacles to securing employment can be nearly insurmountable.

This is the impetus behind “ban the box” legislation. But what does it mean for employers?

To date, 19 states and more than 100 cities and counties have passed laws designed to reduce hiring barriers for individuals with criminal histories. Deemed “ban the box” for the question on job applications, “Have you ever been convicted of a crime?”, the laws restrict an employer from inquiring about an applicant’s criminal record until the job interview – or, in some cases, after the applicant is qualified and offered a position. By delaying a conviction inquiry until later in the hiring process, employers can help support a fairer job market for the millions with records.

Nineteen States … and Growing

The first state to pass ban the box law was Hawaii, which eliminated the question for both public and private sector employers in 1998. On a local level, Philadelphia was the first major city to ban the box for public and private employers in 2011.

While the intent of the legislation is the same, the specifics vary. For example, when they were first introduced, ban the box laws applied only to government contractors and subcontractors. In recent months, however, the laws have expanded to target private employers, as well.

Currently, 19 states have adopted ban the box policies:

New Jersey
New Mexico
New York
Rhode Island

Are you on the list?

Be aware that eleven of these states regulate how public employers may use criminal records – California, Colorado, Connecticut, Delaware, Georgia, Maryland, Nebraska, New Mexico, New York, Virginia and Vermont. The other seven states – Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island – extend their ban the box laws to private employers, as well.

How Ban the Box Affects Your Hiring Process

As you might imagine, there’s some confusion regarding the workplace rules with ban the box legislation. It’s important to understand that you’re not prohibited from conducting a legally sound background check on an otherwise qualified individual. Nor are you required to hire an individual with a criminal record. Instead, the purpose of ban the box legislation is to shift the criminal history inquiry from the initial application stage until later in the hiring process, when you hold an interview or extend a conditional job offer.

Some additional considerations:

Ban the box laws may restrict inquiries to certain types of convictions, barring questions about non-conviction arrests or expunged records.
Certain industries and jobs may be exempt, such as positions in child care, health care, law enforcement and finance.

What can affected employers do to comply with the new ban the box laws? First and foremost, review and revise all employment applications to ensure they don’t include a criminal history question. Next, modify your hiring procedures to delay any inquiries about criminal history until it’s appropriate, making certain your hiring managers understand the requirements and how to handle conversations about criminal history with potential hires.

Want to learn more?

Watch our latest webinar, The State of Hiring: How to Comply with “Ban the Box” and Other Hiring Laws. Eric B. Meyer, a partner in the Philadelphia-based law firm of Dilworth Paxson LLP, covers the impact of the ban the box movement on your hiring process, including the importance of state-compliant job applications and how (and when) to conduct proper criminal background checks.​

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