Should You Ban the Box?

Should You Ban the Box?

Criminal Background ChecksThe National Employment Law project research estimates that 70 million people in the US have some sort of a criminal record and 700,000 people return from incarceration each year. As an employer you’re bound to run into an applicant with a criminal history.

What is currently under hot debate is when an employer should ask an applicant about their criminal history. Oftentimes when an employer learns that an applicant has a criminal history they will automatically disqualify the applicant without providing the applicant with a chance for an interview. This has made it extremely difficult for individuals with a record to transition back into their community.

What is Ban the Box?

The “Ban the Box” movement has emerged as a way to encourage employers to remove from their hiring application a check box that asks about the applicant’s criminal record. Research shows that personal contact with an applicant reduces the negative effect a criminal history has on an employer’s hiring decision. This movement in recent years has been adopted as law in certain parts of the county.

Common Misconceptions:

  1. There is a common misconception that Ban the Box is an employment policy in which employers are never allowed to ask about an applicant’s criminal record. In reality, the ban does not prohibit you from running a criminal background check, it only moves that step later in the hiring process.
  2. Some employers think it means they are forced to hire an individual with conviction. Although you should not automatically disqualify an applicant with a conviction, you can take it into consideration when making a hiring decision.   

Why Should You Ban the Box?

We predict that the number of states that enforce Ban the Box will increase in 2015-2016. Regardless of whether your state requires it, it may be a good idea to remove the checkbox on your job applications that ask about criminal history. Here’s why:

  1. It may open up employment possibilities you would have normally turned away
  2. The EEOC points out that asking for criminal history too early could have a discriminatory effect on hiring minority groups which are accused and convicted of crimes at a higher rate. As a result, removing the box may also save you from potential discriminatory lawsuits.
  3. Also consider that the later you wait to ask for a criminal history, the smaller the pool of applicants and the fewer people that would be able to potentially file a class action lawsuit.

Where is Ban the Box Required?

For private employers these states, counties, or cities restrict when or what you can ask about an applicant’s criminal history:

State When to ask about criminal history:
Hawaii After a conditional offer of employment is made
Massachusetts After the first interview
Minnesota After the first interview
Rhode Island After the first interview
Illinois After the individual has been determined qualified for the position and notified of the impending interview
New Jersey After the first interview
Washington DC After a conditional offer of employment is made
County When to ask about criminal history:
Montgomery County, MD After the first interview
Prince George’s County, MD After the first interview
City When to ask about criminal history:
Baltimore, MD After a conditional offer of employment is made
Buffalo, NY During the interview
Columbia, MO After a conditional offer of employment is made
Philadelphia, PA After the first interview
Rochester, NY After the first interview
San Francisco, CA After the first interview
Seattle, WA After the individual has been determined qualified

Hawaii, Washington DC, Baltimore, Maryland and soon, all of New York will require you to ask the applicant about their criminal history only after they have been offered a conditional offer of employment.

Seattle, San Francisco, Chicago, and both Maryland counties above have additional requirements that need to be on your pre-adverse and adverse decision letters. For instance in Seattle, employers must give applicants an opportunity to explain or correct the criminal record information before an adverse decision is made. Then, the employer must keep the position open for at least 2 business days to give the applicant a reasonable amount of time to submit an explanation.

Our Recommendations:

  1. Know the laws in your state regarding criminal background checks.
  2. Consider removing the box even if you’re not required to yet.
  3. Don’t disqualify applicants automatically, just because they have a criminal record.
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