A state Ban the Box law prohibits employers from asking about a candidate’s criminal history on a job application. Ban the box originally referred to a yes or no box on job applications that asked if a candidate had ever been convicted of a felony. This has since expanded to include questions about any criminal history, not just felonies, and has moved beyond the paper application to include anything asked on virtual questionnaires.
The “box” outlined in red on an employment application that asks about criminal history (Source: Texas Department of Criminal Justice)
The idea of a ban the box policy is to give every applicant a fair shot at getting a job when they’re adequately qualified, regardless of their criminal history. In that endeavor, many states and cities have enacted ban the box laws for private employers (there is no federal law on the matter). Our guide will help ensure your business complies with employment laws in your area.
History of Ban the Box
The ban the box movement, also referred to as “fair chance” or “second chance” laws, began in Hawaii in 1998. Minnesota followed suit soon after—and since then, dozens of states and many more cities and municipalities have enacted similar laws.
In 2012, the Equal Employment Opportunity Commission (EEOC) gave public support for ban the box legislation. The Fair Chance Act, which became effective in 2021, prohibits federal agencies and contractors from requesting criminal history information from applicants, with a few exceptions.
States With Ban the Box Laws
Lacking a federal law for private employers, 41 states, plus the District of Columbia, have established their own ban-the-box laws. Some laws apply to public sector employers only, but others also apply to private employers. Click on your state below to learn the ban-the-box law that is applicable to employers.
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All these laws ban employers from asking for criminal history on applications or during the hiring process. Additionally, many of the laws have exceptions. For example, if a clean background is integral to the job, you may be able to ask applicants if they’ve been convicted of a crime. So, if you’re hiring a delivery driver, you can ask if they’ve ever been arrested and convicted of DUI. We recommend, however, that you speak with an employment attorney to ensure you’re following the law correctly.
Impact of Ban the Box Laws: What to Consider
There are employment and hiring laws you need to follow through the hiring and employment process to ensure compliance. If you’re a new employer or are hiring your first employee in an area with a ban the box law, then you and your HR team need to prepare.
- Your small business needs to have clear ban the box procedures and policies in place for interviewing. 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 or illegal interview questions or you could face costly fines and penalties.
- This is especially important if your company routinely hires in different cities and states, which is becoming more prevalent thanks to remote employment. You’ll need to ensure compliance with each jurisdiction, possibly using different applications and hiring practices. Review the requirements of every area you plan to hire in 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.
- Your HR team and hiring managers need to be adequately trained to understand your policies, what questions they can and cannot ask during interviews, and whether and when they can run background checks. 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.
Having a background check policy in place will help your hiring managers remain focused on staying compliant.
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. Many companies facing this simply structure their hiring policies to comply with the most restrictive jurisdiction. Practically speaking, this means your company may choose to avoid asking criminal history questions in states that have no specific laws.
To ensure your employees fully understand your company policies and labor laws, post labor law posters in a place where employees will be able to see and read them.
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.
To help you stay compliant, check out our best background check companies guide.
- One other area to be aware of is fines for violation of ban-the-box laws. 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 Frequently Asked Questions (FAQs)
No, at least not for private employers with no federal government contracts. If your company has federal government contracts, you may be required to adhere to federal agency ban the box laws. However, as more states and cities pass ban the box laws for private employers, be aware that a national law may come, which would supersede any state and local laws.
It depends on where the applicant is located. If an applicant lives in a state that has a ban the box law, you’re probably unable to ask about their criminal history until at least an interview has occurred.
Yes, but usually not until a formal job offer has been provided to the candidate. Background checks aren’t always a necessary part of the hiring process, but if your company considers the background screening necessary, make sure you’re following the applicable laws to make sure you’re running a compliant background check.
Fair chance is another way to describe ban the box laws, though many states have fair chance laws that extend to housing and other areas of public importance. Fair chance simply means providing employment opportunities for people with criminal records by giving them a ‘fair chance’ to find gainful employment.
Bottom Line
Ban the box laws have been around since 1998. While there’s no federal law yet for private employers, it’s crucial that you pay attention to where your company gets applicants. Some state and local laws may apply, even if you don’t have a business presence in that area.
