As an HR professional, if you’ve been reading a lot of news lately, you might have heard ‘ban the box law’. The first thing to pop up in the mind after reading this phrase is probably what box is being talked about. To answer that question, the ban the box campaign was started back in 1998 in Hawaii when its advocates barred employers from asking job applicants their criminal history. In simpler words, the check box on the application form which asks if an applicant has a criminal history, shouldn’t be there.
In this topic, we will cover the meaning behind the term ‘ban the box’ in-depth. You will learn in which states this movement is currently active and everything else you need to know about this campaign.
What is the ‘Ban the Box’ Law?
According to this law, employers are banned from asking ex-convicts questions related to their criminal history. The idea of this law, sometimes known as Fair Chance Legislation is to give ex-convicts a fair chance to begin with, and a fresh start at work, despite their previous criminal activity.
This campaign gathered massive support because it’s important since America has a growing number of criminal records out of which mostly are drug crimes. In this case, after serving their sentence they have a hard time finding new jobs and stay unemployed for a very long time, according to its advocates.
According to NCSL, an estimated 77 million Americans have a criminal record.
While Hawaii began this campaign, a decade later, Minnesota was the first to follow. Ever since then this movement has gained immense popularity and support with more states in the US now adopting this policy. Currently, this movement is active in 33 states and more than 150 cities. In its support, advocates say ban the box is not only helpful for ex-convicts in finding a job but is also great for the American economy. The reason is that it helps most people get employed.
Although the BTB law was primarily adapted by public sectors, it gained support in the private sectors, too. The law seeks to protect ex-convicts from being automatically disqualified from the employment process on the basis of previous convictions.
Ban the Box States
What are the states with ban the box laws? Let’s take a look at some of the major states and their municipalities one by one:
Ban the Box California
In California, employers with at least 5 employees are prohibited from inquiring about the criminal record of an applicant before making a conditional job offer. In Los Angeles, employers that have 10 or more employees have a similar ruling. San Francisco mandates that unless a conditional job offer is made, a criminal inquiry is banned.
Ban the Box Law Exceptions In California
Ban the box law is not applicable to the following positions in California:
- A position for which it is mandatory by law to check the conviction history background of an individual.
- A position with a criminal justice agency
- A farm labor contractor position
- A position that requires by federal, state, or local law, a criminal background check on an applicant for employment or to restrict their employment on the basis of any criminal history.
Ban the Box Arizona
Arizona mandates all state agencies follow the Second Chance Box Policy. According to this law, no state agency should ask if an applicant has a criminal history. Secondly, a criminal record shall not disqualify an applicant for the interview process.
Ban the Box Hawaii
In Hawaii, all private employers must take the ban the box law into account and are prohibited from asking an applicant about their previous criminal acts until the conditional job offer.
Ban the Box Ohio
According to House Bill 56, also known as ban the box legislation, no public employer has the liberty to ask an applicant about their criminal history.
Ban the Box Massachusetts
Beginning in 2010, Massachusetts was one of the first states to support the ban the box movement. In Boston, Cambridge, Worcester all private employers and vendors doing business within the city are not allowed to ask an applicant about their criminal record.
Ban the Box Illinois
Illinois governor J.B Pritzker signed a bill called The Employee Background Fairness Act on March 23, 2021. This bill prevents employers from inquiring ex-convicts about their previous felonies.
Ban the Box New York
New York’s Fair Chance Act that took effect on July 29, 2021, prohibits employers from any discrimination based on an applicant’s criminal record, criminal accusations, or convictions.
Ban the Box New Jersey
On August 11, 2014, New Jersey governor Chris Christie signed a bill called Opportunity To Act. This law became effective in 2015 and currently prevents employers from enquiring applicants about their criminal history during the initial employment application process.
Ban the Box Wisconsin
All criminal history questions are banned until a conditional job offer in Wisconsin. This law is for employers who have their business in the city on contracts worth more than $25000. Wisconsin government passed the law in 2015.
Ban the Box Florida
Effective since February 2021, ban the box law in Florida requires the removal of the check box which asks ex-convicts of their previous criminal record. Other cities in Florida with this rule are Tampa, Orlando, Gainesville, Jacksonville, Tallahassee, and Sarasota.
Ban the Box Texas
All employers with 15 or more employees in Texas are prohibited from asking an applicant’s criminal background. The law is meant to give everyone a fair chance until a conditional job offer has been made.
Ban the Box Nevada
Ban the box in Nevada which was made effective in January 2021, prohibits employers from asking applicants about their previous convictions. The exceptions however include peace officers, firefighters, or any position that has access to the National Crime Information Centre.
A ban the box state map is as follows:
Going Beyond BTB: Fair Chance Laws
Fair chance law is often used interchangeably with the BTB law. Although the differences are minor but fair chance laws provide much more benefits to ex-convicts to prevent any kind of discrimination against them. Equal Employment Opportunity Commission gave the following points in 2012 for a fair chance to ex-convicts:
- Any record-related background checks are to be delayed until a conditional job offer is made.
- Company ads that require background checks are to be banned.
- Removal of questions that enquire ex-convicts about their criminal history during job interviews.
- And finally, imposing a restriction on the use of criminal convictions by employers.
What Does Ban the Box Mean For You?
As employers, BTB law can mean many things for you. Organizations that hire people from across the country must comply with many regulations. An HR manager is often stuck in the dilemma of hiring an ex-con to give them a fair chance or to become liable for negligent hiring. Ban the box legislation doesn’t entirely stop an employer from conducting a background check. Instead, it delays it until a job offer is made. Until now, there is no federal ban the box law. Only cities and states pass this law. Sometimes an employer may face restrictions on how they can use the information obtained from the background check. In some states like California, an employer must give an applicant notice.
Is Ban the Box Law Effective?
Some pros of the BTB are:
Ban the box law has been so effective, the states have now included private organizations on the list too. Ever since the law became effective in the 2000s, the percentage of hiring people with conviction histories, across the country has significantly increased. According to research conducted by Case Western Reserve University, former prisoners have a better chance of getting hired based on their skills, despite being an ex-convict. This is when application forms do not ask them about their criminal history. Up to 4% of ex-cons have been employed in the US.
Higher Retention Rate
Economists say, hiring people with records is smart business. How? Because the retention rate is higher and turnover is reduced. Another benefit of hiring ex-convicts is that they are loyal to an organization, making a better hiring pool for you.
Lower Conviction Rate
A study showed that criminal defendants prosecuted in Honolulu for a felony crime were 57% less likely to have a prior criminal conviction after the implementation of Hawaii’s ban the box law.
Are there any Drawbacks to Ban the Box Law?
As everything that’s effective has a few drawbacks too and so does the BTB law:
Narrow Applicant Pool
When employers don’t have the liberty of asking applicants about their criminal history, they sometimes replace these questions with heightened educational and job experience. This ultimately narrows down the pool of applicants that could’ve been eligible otherwise.
Ban the box laws may end up increasing racial discrimination. When employers don’t have the freedom to inquire about an applicant’s criminal records, they prefer hiring more white Americans because they have statistically less conviction rates than African-Americans. According to a study, white Americans are 23% more likely to get a callback as compared to other races.
In another study, it was found that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men.
Adverse Action and Ban the Box Law
Adverse action describes the processes which employers must follow when rejecting, terminating, or assigning an individual on the basis of their criminal background check. The FCRA has laid out 3 steps in this matter:
- Employers must send a notice before the adverse action along with a copy of an applicant’s background check history.
- They must allow typically five business days of time for the applicant to respond.
- Then send the final adverse action notice to them as the last step.
Ban the box is concerned with 3 different aspects of adverse action:
- A reasonable time period between the initial and the final adverse action notice.
- An explanation of which aspect of the background check has led to the adverse action from your side.
- Notifying the candidate of their right to meet the HR and their right to provide a report of the inaccuracy of their background check, if any or if they went to rehabilitation after their conviction.
Final Word On Ban the Box Law
The BTB law varies from state to state. Some rules and exceptions that are part of one state law may not be of another. As an employer, it is important for you to have a compliant framework to follow ban the box requirement at all levels. The best practice is to consult with a lawyer who can advise you on your obligations and rights.