This article is part of a larger series on Hiring.
Ban the box laws prohibit employers from asking about a candidate’s criminal history on a job application. The “box” referred to is literally a box on job applications that asks if a candidate has ever been convicted of a crime.
The idea behind banning the box is to give every job applicant a fair shot at getting a job, based on their qualifications for the role. In that endeavor, many states and cities have enacted ban the box laws. Our guide will make sure your business stays compliant with employment laws in your area.
Where the Box Is Banned
Although there is currently no federal law banning the box, many states, cities, and municipalities do have laws in place. Hawaii was the first to pass a ban the box law in 1998. Since then, dozens more have followed suit.
To help your small business comply with employment laws, here is a breakdown of ban the box laws across the US that are applicable to private employers. If your state or city isn’t listed, there is no law in your area at the time of writing.
Please note that all these laws ban asking for criminal history on applications; we just didn’t include that if the law places additional restrictions on employers. Additionally, most of the laws above have exceptions. In many cases, if a clean background is integral to the job, you may be able to ask applicants if they’ve been convicted of a crime. For example, if you’re hiring a delivery driver, you can ask if they’ve ever been arrested and convicted of DUI. To make sure you’re following your state and local ban the box laws, we recommend you speak with an employment attorney.
Did You Know?:
According to the National Conference of State Legislatures, one-third of working-age adults in the US have a criminal record. Many criminal convictions occur when people are younger and may have made a dumb mistake. The idea that this shouldn’t prevent otherwise qualified candidates from getting a good job is exactly the issue ban the box laws attempt to correct.
Practical Impact of Ban the Box Laws
There are many employment laws you need to follow through the hiring and employment process. If you’re a new employer or hiring your first employee in an area with a ban the box law, you or your HR team need to prepare. Threading the needle on complying with ban the box and avoiding a negligent hiring claim is a difficult task.
Your small business needs to have clear hiring procedures to follow. If you’re hiring in a city or state that prohibits you from asking on an application or in an interview about criminal history, you must ensure your managers don’t ask any prohibited questions or you could face costly fines and penalties.
This is especially important if your company routinely hires in different cities and states. You’ll need to ensure compliance with each jurisdiction, possibly using different applications and hiring practices. Review the requirements of every place you plan to hire and create policies that help your HR teams and hiring managers comply with local laws.
A best practice is to use standard interview questions that all interviewers use, along with a structured interview process to ensure fairness and equity. This lets your company decide which questions are asked, ensuring compliance.
You need to make sure your HR team and hiring managers understand the policies, what questions they can and cannot ask during an interview, and whether and when they can run a background check. Proper training for all team members involved in hiring will be crucial.
Anyone in your company who will interview candidates should be trained. Ensure they understand how to engage with candidates and if there are background check requirements. Without proper training, your employees could put your organization at risk.
Part of the process of hiring employees is complying with employment laws. You can ensure your company stays compliant by conducting regular audits.
When auditing your process for ban the box compliance, review:
- Application forms (both paper and electronic)
- Interview questions
- Interview policies
- Background check procedures
To comply with ban the box laws, you may need to develop different policies for each office location or when you hire employees in a new geographic area. That can create additional expenses for your business.
Many companies facing this concern simply structure their hiring policies to comply with the most restrictive jurisdiction. That, however, could also create problems, as some states have enacted laws opposite to ban the box laws, actually limiting the restrictions. Indiana, for example, prohibits local enactment of any ban the box laws. Practically speaking, this means your company may choose to avoid asking criminal history questions if you want but this law prohibits your county or city from forcing you to not ask these types of questions.
Companies must also balance these restrictive laws with avoiding a negligent hiring claim. If a company hires someone without conducting a background check and that person has a criminal history of violence, another employee could sue the company for negligent hiring if they’re attacked. This is why ban the box laws do allow for some level of background screening at different stages of the hiring process.
One other area for added costs is fines. If a company is found to have violated a ban the box law, they could face varying fines based on the jurisdiction.
Some laws provide for strict penalties on the first violation, beyond $1,000. Others are less severe, using a tiered penalty system that increases for each violation. All new ban the box laws provide a grace period, usually 30 days, for employers to update their policies and ensure staff are properly trained to comply with the new law.
Ban the box laws have been around a long time with new and updated versions popping up frequently. These constant changes require diligence from your small business to make sure you’re complying with your local laws and avoiding penalties.