Ban-the-Box Laws: What They Are and How They Impact Your Business

According to LinkedIn, fair hiring practices help small businesses promote diversity and improve employee engagement. The key is to offer equitable employment opportunities for all, regardless of ethnicity, age, disability, or gender. In the last few years, fair hiring procedures have extended to include ‘ban-the-box’ policies, which give applicants with criminal histories a fair chance at employment without the stigma of an arrest or conviction record. Ban-the-box laws vary by state and city/county, but overall they aim to consider a job candidate’s qualifications first, restricting when an employer is allowed to ask about prior criminal history during hiring. In this article, you’ll learn how the ban-the-box movement started, what the laws are, and if they apply to you. We’ll also touch on the implications for your business and your future job candidates.

What is the ban-the-box movement?

The ban-the-box movement is a social initiative aimed at removing the criminal history checkbox on job applications. By eliminating the checkbox and delaying background checks until later in the hiring process, qualified applicants have a fair chance at employment without the stigma of a conviction or arrest record. The ban-the-box movement originated in the early 2000s alongside growing awareness of challenges faced by job applicants with a prior record. As more activists recognized the long-lasting impact of a criminal history checkbox, the movement gained momentum. In the US alone, over 70 million people have a criminal record. And racial inequities in the criminal legal system means that a criminal history checkbox disproportionately impacts communities of color. By adopting ban-the-box laws, states and cities can give more people a fair chance at finding a job.

What is a ban-the-box law?

Simply put, ban-the-box laws prohibit employers from asking about an applicant’s criminal history until after an initial interview or a conditional offer of employment. The waiting period varies depending on where you’re hiring. Employers are also encouraged to do an individual assessment of an applicant’s criminal history, the length of time since their conviction, and how/if it relates to the job. For example, a shoplifting conviction from 15 years ago shouldn’t be the deciding factor for a front-of-house position.

What do ban-the-box laws mean for businesses?

Ban-the-box laws require businesses to make adjustments to their hiring practices to ensure they’re more equitable. Depending on the policies in your jurisdiction, you may need to:

• Remove the criminal history checkbox or questions about past convictions from your applications
• Remove discriminatory language or questions about criminal history from your job postings
• Avoid automatic disqualification or stereotyping of a candidate before doing an individual assessment of their offense
• Avoid doing a background check until after the initial interview or after a conditional offer of employment
• Train your HR staff on the latest ban-the-box laws to ensure compliance
• Communicate clearly with applicants about your hiring process, including if/when you’ll be conducting a background check and how much criminal history information will be considered.

While ban-the-box laws prevent early record checks, it’s still acceptable to conduct a thorough background check later in the hiring process to address any legitimate concerns related to job responsibilities.

What do ban-the-box laws mean for employees?

Ban-the-box laws have several positive implications for employees including:

• More job opportunities: Equality laws decrease automatic disqualification and increase the chances of applicants being considered based on their skills. Because the laws also apply to a wide range of industries, applicants have opportunities in diverse sectors.
• Reduced stigma: It's an opportunity to help reduce the stigma associated with criminal records, increasing applicants’ confidence, and fostering a more inclusive job market.
• Fair assessment: People with criminal histories benefit from an individualized assessment of their skills and qualifications, decreasing automatic disqualification and increasing the chance that they’ll get hired.
• Lower chance of re-offending: Finding a good job within two months of release from prison reduces the chances of re-offending by 50%.

What businesses does the ban-the-box law apply to?

Each state has unique ban-the-box laws that apply to a variety of employers, so it’s important to get familiar with the laws in your specific jurisdiction. At a high level, these laws apply to:

Public employers

All 37 states have ban-the-box laws that apply to public employers. If your business provides public services like waste management, recreation facilities, education, or transportation, ban-the-box laws more than likely apply.

Private companies

15 states and 22 cities/counties have ban-the-box laws that apply to private employers, in most cases with 5+ employees.

Federal contractors and agencies

All government employers at the federal, state, and local levels are prohibited from asking candidates about past convictions until a conditional offer is made. Ban-the-box laws also apply to government agencies.

Which states and cities have a ban-the-box law?

Public sector ban-the-box laws have been adopted in 37 states, including the District of Columbia, and 150 cities and counties. However, only 15 states have extended their Fair Chance policies to private employers. Within these states, 22 cities or counties also have local Fair Chance policies that apply to private employers.

States with ban-the-box laws

These 37 states have laws that apply to public sector employment:

• Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

Only 15 states also have laws that apply to private employers:

• California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Cities and counties with ban-the-box-laws

Currently, only 22 cities or counties have local fair chance laws that apply to private employers:

• Austin, Baltimore, Buffalo, Chicago, Columbia (MO), DeSoto (TX), the District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, Spokane (WA), St. Louis, Suffolk County (NY), Waterloo (IA), and Westchester County (NY).

Be sure to check your state labor laws to make sure you’re compliant with applicable ban-the-box laws. This will also help you tailor your hiring process accordingly.

Ban-the-box laws at the federal level

There's currently no federal ban-the-box law. While all government contractors and agencies must follow federal requirements, there’s no nationwide law for private employers. According to the Fair Chance Act, federal contractors and agencies cannot conduct a background investigation on an applicant until a conditional offer of employment is made. It also prevents a government employer from using other methods of finding information about an applicant’s record. As always, there are a few exceptions. Federal employers can verify criminal history prior to an offer if a criminal background check is required by law, the job requires access to classified information, or the job involves national security or sensitive law enforcement duties.

The pros and cons of ban-the-box laws

Ban-the-box laws have a number of advantages for businesses, including:

• Access to a broader pool of qualified candidates since you’re not automatically eliminating people with a criminal history.
• A more diverse workplace, which can improve productivity, open your business to fresh perspectives, and even reduce turnover rates.
• More productive employees. Studies show that employees with criminal backgrounds are 1 to 1.5% more productive on the job than people without records.

Banning the box may also have some unwanted consequences, such as:

• An increased administrative burden in terms of modifying hiring processes and navigating local laws.
• Safety concerns, especially in roles that involve working with sensitive information or vulnerable populations. Remember that it’s important to reduce hiring bias as much as possible!
• The potential for legal implications if you’re not compliant with ban-the-box laws in your jurisdiction.

Overall, ban-the-box laws have been shown to do more good than harm, increasing job opportunities for people with criminal histories, reducing the chance that they’ll reoffend, and even increasing public safety. Plus, businesses are that much more likely to find the best candidate for the job.

Homebase makes Fair Chance hiring simple

Managing hiring and background checks while staying on top of local laws can be complicated. With a tool like Homebase, it’s easy to stay compliant and make sure your hiring process is equitable from start to finish. Want to see how Homebase can help you stay compliant with state and federal hiring laws? Get started now.