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What Does it Mean to Ban the Box?

Stephanie Cook | Industry Expertise

“Ban the Box” has become a popular term across the United States, and one you should familiarize yourself with before filling your next open position. Also known as “Fair Chance” or “Fair Opportunity” laws, the phrase refers to a movement to reinstate individuals with prior criminal convictions into the workforce by tabling questions about criminal history until after the individual has been given consideration for the position. Many states, counties, and municipalities have enacted legislation to “ban the box,” in the hope that removing the check mark box or question about criminal history from the application process, will ensure that companies focus on the qualifications of the individual in question, instead of screening out all applicants with prior convictions.

The “Ban the Box” movement gained a great deal of momentum in 2015 when President Barak Obama requested that federal agencies prohibit criminal history questions on federal job applications. Many states and municipalities have enacted similar legislation for public employers, and already, ten states have included restrictions on private employers as well. The trend is expected to continue, and many unaffected companies are following suit by modifying their internal policies to remove criminal history questions from the application.

The specifications of “Ban the Box” legislation can vary in requirements. In certain state, counties, and municipalities, the criminal history question is restricted until a conditional offer of employment has been made, while others will allow the question to be raised during the interview process. These variations create a myriad of laws for employers to follow and understand. Companies with locations across the United States must deal with even more confusion. Most all jurisdictions with “ban the box” restrictions on private employers require that the question be removed from any application material, at the very least.
States that have enacted legislation that “bans the box” for private employers may also have additional restrictions or requirements that must be met when considering criminal records during the hiring process. New York, for example, requires that a private employer who is denying an individual employment due to a conviction must show an individualized assessment of how the conviction affects the applicant’s ability to perform the job.

Legislation surrounding this issue is complex, but PSI offers our clients access to the Federal and State HR Helpdesk, written by industry attorneys, with information on a large variety of legal compliance issues related to Human Resources and employment screening. This tool is accessed through your PSI organizational login and is available to our clients at no additional cost. As always, PSI recommends consulting with an employment attorney to ensure your company’s background screening policies and procedures are compliant with state and federal laws.

While PSI offers information you may find helpful, we do not, and cannot, provide legal counsel. You should review your background screening policies and documentation with an employment attorney prior to implementation, and again as needed to remain aware of, and compliant with, changes in applicable federal, state, or local laws.