Regional Regulations: A Primer on Ban-the-Box Laws 3 Jan 2018

When it comes to requiring background checks for employment, 29 states have ban-the-box laws that put restrictions on how and when an employer can ask about an applicant’s criminal history. The primary way ban-the-box legislation does this is by removing the checkbox that asks about criminal or conviction history from the application, thereby ensuring candidates won’t be rejected solely on the basis of having a criminal record.

Why the need?

According to The Wall Street Journal, it’s estimated that around 70 million adults have a criminal history. That means about one in three American adults have a conviction record, often for nonviolent drug crimes or other minor offenses. Civil rights groups and ex-offender advocates argue that disparities in the criminal justice system unfairly target certain groups and income levels, leaving millions of nonviolent offenders burdened by a criminal record that prevents them from becoming a fully participating member of society.

Most significantly, a box on a job application that asks whether you have been convicted of a crime makes no differentiation between being charged with violent assault or possessing a small amount of marijuana. It’s a blanket exclusion.

How to stay compliant

While each ban-the-box law prohibits questions about a candidate’s criminal history on applications, the question of when an employer may ask this question varies by state and even by city.

For instance, in Illinois an employer must wait until after they have selected a person for a first interview to ask about their criminal history, while in Hawaii an employer may only ask after a conditional offer has been made. The list goes on.

In order to stay compliant, organizations must familiarize themselves with local and state laws that dictate when they can inquire about an applicant’s criminal history and how they can use information they receive from a criminal background report.

Organizations should partner with a reputable background screening agency that can guide them through the legal subtleties of this process and perform a thorough criminal background check. With the guidance of a background screening agency, organizations should draft a document that factors in legal considerations and details their process for assessing a candidate’s criminal history.

Conclusion

Some employers mistakenly think that ban-the-box legislation makes it illegal to ask about a candidate’s criminal history at any time. Think of these laws as providing procedural guidelines for when you can inquire about a candidate’s conviction record.

If you have any questions about the laws in your area or how to best conduct a criminal background check, feel free to contact us at Trusted Employees at any time.