For several years states and local governments have been enacting ban the box laws as a way of improving employment opportunities for individuals with records of arrests or criminal convictions. How exactly do these laws change the employment process? Typically, employers will ask about an individual’s criminal history on an employment application. The trend in these laws is to prohibit employers from asking about a candidate’s criminal history or conducting any criminal background checks until after at least a first interview or conditional offer.
In most cases, the law will make it unlawful for an employer to (1) include any question on any application for employment, (2) inquire either orally or in writing, (3) receive information through criminal background checks, or (4) otherwise obtain information about an applicant’s criminal record (arrests or convictions) until after the employer initially determines that the applicant is “otherwise qualified” for the position. An applicant is considered “otherwise qualified” if he or she meets the basic criteria for the position as set out in any job advertisement or job description without consideration of a criminal record.
Only after the employer deems the applicant to be “otherwise qualified” may it inquire into or obtain information about the applicant’s criminal record. Typically under ban the box laws, any policy or practice that automatically or categorically excludes applicants with a criminal record before they have been deemed “otherwise qualified” will be unlawful. Furthermore, employers typically cannot advertise any job openings in a way that excludes people with criminal records from applying. In this regard, job advertisements cannot state “no felons” or “no criminal background,” or have similar messages.
Ban the box laws often times make exceptions for the following: (1) Any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person as defined elsewhere in state law; (2) Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into (via criminal background checks or other means), consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes; (3) Certain law enforcement or criminal justice agencies; and (4) Employers seeking non-employee volunteers.
The important thing to note is the ban the box laws do not prevent employers from running criminal background checks or otherwise inquiring about a candidate’s criminal history…..they merely set parameters around when these inquiries can be made.
Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.
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