Ban the Box: What Is It & Where Does It Apply? 6 Mar 2017

What is “Ban the Box”?

The name comes from the standard employment application, which includes a check box with some variation of the question, “Have you ever been convicted of a crime?” In states, cities, or counties with ban-the-box laws, asking any version of this question on a job application is unlawful.

However, this doesn’t prevent employers from conducting background checks. The purpose of ban-the-box legislation is to delay background screening inquiries until later in the hiring process, so that employers evaluate applicants based on their qualifications rather than automatically screening out former offenders. Every ban-the-box law includes provisions that allow employers to run a background check and make inquiries about criminal records in accordance with state laws.

The EEOC Weighs in – Heavily

In the last several years, the EEOC has increasingly cracked down on the practice of including criminal background questions on job applications. The agency’s position is that employment policies or practices that exclude people with certain criminal records significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”

In 2012 the agency issued enforcement guidance calling on both private and public employers to remove such questions from application forms, and reserve criminal background checks for later in the hiring process. However, the agency can’t prohibit the practice; it is still a matter of state law.

State Governments Lead the Way

Since Hawaii became the first state to enact a prohibition for public employers in 1998, there has been a growing movement nationwide to “Ban the Box,” with one state after another moving to adopt the policy for all state worker hiring. As of this writing, a total of 25 states representing nearly every region of the country have adopted Ban the Box on their state employment applications. (See table at end of article.)

Nine states, the ban applies not just to state government offices but also to private employers. Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have prohibited the conviction history question on job applications for private employers.

Local Governments Also Leading Reforms

About 150 local jurisdictions – cities and counties – across the U.S. have adopted “ban the box” for their own hiring practices in the past twelve years, including Chicago, Jacksonville, Philadelphia, San Francisco, Memphis, Louisville, New Orleans, Austin, Indianapolis and Baltimore—to highlight just a few. Of special note, 18 cities and counties now extend the policy to private contractors.

In most cases, the preferred nomenclature for the policy has become the “Fair Chance Ordinance.”

In Buffalo, New York City, Seattle, Portland, San Francisco, Los Angeles, Chicago, Philadelphia, and Newark, it applies to private employers as well.

How does this work if your business is located in one of those states or cities?

Los Angeles became the most recent city to adopt the policy, and has just issued regulations outlining the procedures that must be followed if your company hires for jobs located in LA. The thorough steps shown provide a good guideline for best practices for compliance in any jurisdiction. (See “City of LA Guidelines on Fair Chance” at end of this article.)

But There Are Always a Few Holdouts

Not all states are jumping on the bandwagon, however. Nine state attorneys general wrote a complaint to the EEOC, and the State of Texas unsuccessfully filed suit against it in 2013. Texas claimed the EEOC’s actions requires employers in the state to hire felons. After that suit fizzled, the City of Austin enacted its own Ban the Box ordinance.

Enforcement Has Teeth

If your company is a multi-state employer with a large workforce, it could become a target for enforcement if your policies are out of step. EEOC’s newfound habit of flexing its muscles resulted in more than $482 million in overall workplace discrimination settlement collections in 2016. Some of this muscle is getting directed toward employers who discriminate against those with conviction records, so it’s a threat not to be taken lightly.

The key sentence in this hotly contested enforcement guidance reads as follows: “[The best practice is] 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.”

The movement continues to press forward in states and cities around the country, so the safest thing is to assume the policy applies to you even if it doesn’t yet. Stick with this guidance, and they won’t come after you.

States that Ban the Box on State Employment Applications

City of Los Angeles Guidelines on Fair Chance

Employers must comply with the following notice and posting requirements:

• All job postings for positions located within the city must include a statement that the Employer will seek all qualified Applicants, in compliance with the Fair Chance Ordinance—this includes job postings advertised online and in publications outside of Los Angeles.
• A conspicuous notice must be posted in every workplace or job site within the city, under the Employer’s control, informing Applicants of the provisions of the Fair Chance Ordinance. This notice must be in a location under the Employer’s control that is visited by Applicants.
• A copy of the notice regarding the provisions of the Fair Chance Ordinance must be sent to each labor union or workers with a collective bargaining agreement that covers Employees located within the city.

Application and Interview Procedures Under the Fair Chance Ordinance

In order to comply with the Fair Chance Ordinance’s application and interview procedures:

• Employers cannot seek the disclosure of an Applicant’s Criminal History for any position located within Los Angeles. Thus, national and statewide Employers must:
  • create a separate Fair Chance Ordinance-compliant application for positions within Los Angeles;
  • remove all questions regarding a person’s Criminal History from the general application; or
  • include a disclaimer on the general application, which must be included immediately next to any question regarding Criminal History, stating that individuals applying for positions located in Los Angeles should not answer that question.
• Employers must remove all statements on any application materials requiring that a criminal background check must be passed to be considered for the position, as it violates the Fair Chance Ordinance.