If you’ve been reading the news lately, you might have heard of something called a “ban-the-box” law. Many states, and several cities, have passed these types of laws in the past few years. These laws help the estimated 33% of adults with a criminal past get a fair shot at finding work, by encouraging employers to assess their qualifications and skills before denying employment.
At some point in their lives, most people have filled out a standard job application with a set of common questions. One of those questions is: “Have you ever been convicted of a crime? Check yes or no.” Many applicants reluctantly check “yes,” knowing that it often means the end of the application process for them. Employers often used the question to weed out applicants with a criminal record, without considering the specifics of the crime, how long ago it happened, or what the applicants have been up to since then.
Not surprisingly, those with a criminal past face high unemployment rates. Studies have shown that lack of employment leads to high recidivism rates. In other words, ex-offenders who are out of work are more likely to commit further crimes. There’s also a concern of racial discrimination. One type of discrimination, called disparate impact discrimination, happens when a seemingly neutral policy disproportionately affects members of a particular race. Because African American and Latino men are arrested and convicted at disproportionately higher rates than Caucasian men, asking about criminal records has a disproportionate impact on them.
All ban-the-box laws prohibit employers from asking applicants about criminal history on an initial job application. However, some go further, requiring employers to wait until after they have conducted an interview or made a conditional offer of employment before asking about criminal history.
A few laws also impose additional requirements. For example, in California, employers must engage in a multi-factored individual analysis of whether the criminal record justifies denying employment. And, if the employer decides to deny employment based on a criminal record, it must provide the applicant with notice and an opportunity to provide favorable evidence that lessens the impact of the conviction.
To date, there is no federal ban-the-box law. These are laws being passed by states and cities. Initially, these laws took off with regard to government employers only. However, more states and cities are passing laws that apply to government and private employers alike.
Currently, around ten states (and the District of Columbia) have ban-the-box laws that apply to private employers—including California, Illinois, Hawaii, and New Jersey. Close to 30 states have laws that apply to government employers. To find out if your state has a ban-the-box law, and to learn other rules on arrest and conviction records, see our state articles on considering criminal records during employment.
Several cities have their own laws, especially ones in major metropolitan areas. To learn whether your city has one of these laws, contact your local government.
Even in states that don’t have ban-the-box laws, a rigid practice of asking about criminal history and denying employment can violate federal antidiscrimination laws. As mentioned above, categorically denying employment to applicants within criminal records can have a disproportionate impact on certain racial groups. The Equal Employment Opportunity Commission (EEOC) has warned against this practice, issuing guidelines to follow in order to avoid discrimination. It includes conducting an individualized analysis considering factors such as: the nature of the job, the severity of the offense, and how much time has passed. To learn more about this and other federal laws, see our article on getting hired with a criminal record.
Some states have additional rules that apply to certain types of criminal records. For example, many states prohibit employers from considering sealed or expunged criminal records, arrests that didn’t lead to conviction, or juvenile records. To learn more, select your state from our state articles on considering criminal records during employment.
Because this is a complex area of the law, and the rules vary widely by location, it’s a good idea to consult with a lawyer about your practices.