What is a ban-the-box law?

A ban-the-box law prohibits employers from conducting early criminal history inquiries. In other words, you can’t include the checkboxes on your applications that ask candidates if they’ve been arrested for or have a prior record. The purpose is to even the playing field by preventing employers from taking prior history into account when initially screening applicants. Without these laws, employers might pass over a candidate who otherwise meets the job description.

Fair chance policies

While true ban-the-box laws focus only on the checkboxes on initial applications, many areas expand that requirement into what is more accurately called a fair chance policy. These guidelines typically require employers to wait longer before conducting a background and prior record check. For example, employers might be banned from asking questions about record history in interviews, or they might have to wait to conduct a background check until after they extend a conditional job offer. These laws or policies don’t keep employers from conducting background checks, but they often aim to delay them, so the results don’t influence the hiring decision.

Ban-the-box states and areas

There isn’t a national ban-the-box law, which means each state or local area sets its own guidelines for the policy. Not all states have these laws. There are 37 states plus the District of Columbia and more than 150 localities with ban-the-box laws in place. Most states apply the law only to public employees, but many also apply them to companies in the private sector.

Variations in local laws

Checking the specifics for your area is important since the guidelines aren’t universal. For example, in Colorado, the law only applies to public and state agency employees, while in Hawaii, it applies to all employees, public and private. Some states set a minimum number of employees before the rules go into effect. In Maryland, ban the box only applies to public-sector and private-sector employers with 15 or more employees. However, some cities have different regulations. In Baltimore, the laws apply to employers with 10 or more full-time employees.

The specific actions that are prohibited also vary. Here are some examples of variations in different states:

• In Rhode Island, employers can’t make prior record inquiries until at least the initial job interview.
• In Tennessee, the law prohibits prior record inquiries only on the initial job application.
• California law keeps employers from making a prior record inquiry until there’s a conditional job offer.
• Wisconsin requires employers to wait on prior record inquiries until the candidate is otherwise deemed as an eligible applicant.

Exceptions to the rule

Many places with ban-the-box laws have some exceptions based on the nature of the job. For example, security jobs might be exempt from following the ban-the-box processes. Some areas also offer exemptions for jobs that work with certain populations, such as the elderly or other vulnerable adults and children.

What it means for employers

Employers who operate in an area with ban-the-box laws need to become educated on the specifics since they can vary significantly. They may need to change their hiring process to stay in compliance if their current process includes screening for criminal history in the early stages.

Some of these policies also specify other things the employer has to do. For example, you might have to provide additional notices when you conduct background checks, or you might be limited on how you use the information you find in a background check.

It can also make hiring a challenge since employers need to hire responsibly. Hiring someone with a prior record might fall back on the company if it creates an unsafe work environment. You might withdraw a conditional job offer if a background check reveals something, but some areas may limit the reasons for withdrawing an offer. For example, you might only be able to withdraw an offer if the history you discover affects the candidate’s ability to do the job.

How to hire with ban the box

How do you hire with ban-the-box laws in place? It can seem intimidating, but educating yourself on the guidelines in your area and creating a detailed hiring process based on those guidelines can make it easier. Here’s a brief guide, but getting legal counsel is always a good idea to ensure compliance with this and other labor laws.

Review applicable laws

Start by determining if you live somewhere with a statewide ban-the-box law. Then, check with your city and county to see if they have laws in place, even if the state doesn’t. It’s important to check because your city or county could have stricter regulations than the state, so you’ll need to comply with those conditions. Review the details of any applicable ban-the-box laws in the area where your business is located.

Review your hiring process

Now that you know what your city, county or state requires, review your hiring process, including your application and background check policies, to see how they compare. If your application has the checkboxes asking about a prior record, you may need to rework the application to ensure it complies with the laws. Working with your legal team helps you create a revamped application that works with ban-the-box laws.

You might also need to shift your timeline for conducting background checks, which will reveal a prior record. If your state or locality requires you to wait to do the background check, review when you normally conduct background checks to determine if it fits with the required timeline.

Update your hiring processes

If your current hiring process fits the terms of the ban-the-box law in your area, you shouldn’t need to make any changes. However, if you’re still asking questions about a prior record on your application in an area that has a ban-the-box law, you’ll need to update things to fit the guidelines.

Determine what changes need to be made to your application process. For example, you may need to remove questions about arrests and convictions from your application, or you might have to push back your background check process until after you’ve made a conditional job offer.

Create a cheat sheet

To ensure you follow the conditions and time frames established by ban-the-box laws, create a reference guide with the specifications for your area. Giving this guide to every hiring manager and HR staff member can help the entire team get on board, so they understand the requirements. It’s also a good idea to provide a training on this law that details everything a hiring manager needs to know. This can give your hiring managers a chance to absorb the information and ask questions to help avoid violations.