Ban the Box Laws: An Ultimate Guide for Small Businesses
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 “box” outlined in red on a State of Texas Application for Employment
(Source: Texas Department of Criminal Justice)
The idea 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.
Where the Box Is Banned
Lacking a federal law for private employers, many states, cities, and municipalities have established their own ban the box laws—each with its own variation.
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:
- Covered Employers: All employers with five or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers with 10 or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers with 5 or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers
- Details: Employers can run a criminal background check during the hiring process but cannot ask if a candidate has been convicted of a crime on an application
- Covered Employers: All employers
- Details: Employers cannot ask if a candidate has been convicted of a crime on the application
- Covered Employers: Employers with 11 or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers
- Details: Employers may run criminal background checks after a job offer. If the background check returned negative results, companies must provide the applicant an opportunity to dispute the information.
- Covered Employers: All employers
- Details: Employers may run criminal background checks after a job offer. The background check must be limited to felony convictions in the past seven years and misdemeanor convictions for the past five years.
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits criminal background checks prior to an interview. Job applicants can only be rejected if a conviction has a substantial relationship to the job.
- Covered Employers: All employers with less than 15 employees
- Details: Prohibits criminal background checks prior to an interview
- Covered Employers: All employers with less than 15 employees
- Details: Prohibits criminal background checks prior to an interview
IOWA
- Covered Employers: All employers
- Details: Prohibits criminal history questions on applications and criminal background checks prior to a conditional offer of employment
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits criminal background checks prior to a conditional offer of employment
- Covered Employers: All employers
- Details: Employers cannot ask about criminal history on an application and cannot state in a job ad that applicants with a criminal history will be rejected
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits employers from asking about criminal history prior to the first interview
- Covered Employers: Employers with 10 or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: Employers with 15 or more employees in Montgomery County
- Details: Employers can only run a criminal background check and ask criminal history questions after the first interview
- Covered Employers: Employers with 25 or more full-time employees in Prince George’s County
- Details: Employers can only run a criminal background check and ask criminal history questions after the first interview
- Covered Employers: All employers
- Details: Criminal history questions are banned on applications, employers may not ask about misdemeanor convictions older than three years, and employers may not ask about criminal history that’s been sealed or expunged.
- Massachusetts Compliance Note: When requesting criminal record information from an applicant, employers must include the following language: “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100k of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits criminal history questions on job applications
- Covered Employers: All employers
- Details: Prohibits criminal history questions on job applications
MISSOURI
- Covered Employers: All employers
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: Employers with six or more employees
- Details: Employers may run criminal background checks after the first job interview
- Covered Employers: Employers with 10 or more employees
- Details: Employers may run criminal background checks after the first job interview
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits criminal history questions on job applications
- Covered Employers: All employers
- Details: Employers may consider a criminal conviction after discussing employment with the job applicant
NEW YORK
- Covered Employers: Employers with 15 or more employees
- Details: Prohibits criminal history questions on job applications
- Covered Employers: All employers
- Details: Employers may run criminal background checks after a job offer. Companies cannot take adverse action against a current employee for a criminal conviction unless it’s directly related to the job or the safety of other employees.
- Covered Employers: All employers
- Details: Prohibits criminal history questions on job applications
- Covered Employers: All employers
- Details: Prohibits criminal history questions on job applications
WESTCHESTER COUNTY
- Covered Employers: All employers
- Details: Prohibits criminal history questions on job applications
PENNSYLVANIA
- Covered Employers: All employers with at least one employee physically in Philadelphia
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers with four or more employees
- Details: Prohibits criminal background checks during job application phase
TEXAS
- Covered Employers: Employers with 15 or more employees
- Details: Employers may run criminal background checks after a job offer
- Covered Employers: All employers
- Details: Prohibits criminal history questions on job applications
- Covered Employers: All employers
- Details: Prohibits a criminal background check before an applicant’s qualification are reviewed and employers may not state in job ads that they will reject applicants with criminal histories
- Covered Employers: All employers with at least one employee
- Details: Prohibits the automatic exclusion of applicants with a criminal history unless the company can show a legitimate business reason
- Covered Employers: All employers
- Details: Prohibits criminal history questions before a job interview and structuring a job ad in a way that excludes people with arrest or conviction records
All these laws ban asking for criminal history on applications. 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. We recommend you speak with an employment attorney to ensure you’re following the law correctly.
Did You Know?
Up to a third of Americans 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.
Impact of Ban the Box Laws—What to Consider
There are many employment 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 procedures and policies 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, which is becoming more prevalent thanks to remote and hybrid 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.
- You need to ensure that 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. As such, proper training for all team members involved in hiring will be crucial.
- 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, as does Tennessee. 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 Frequently Asked Questions (FAQs)
Is there a national ban the box law?
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.
When can I ask a candidate about their criminal history?
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.
Can I run background checks?
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.
What is a fair chance process?
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 processes are one way to increase employment opportunities for people with criminal records.
What is the history of ban the box?
Ban the box laws, 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 laws. 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.
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.
