Background Screening 101 - Ban the Box

Please welcome back Mary Poquette, a 20 year compliance officer specializing in background screening. Today she will speak to a series of laws being passed across the US known as "Ban the Box".

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In his 2/18/2015 post “Who’s Protecting the Applicant?”, Bill prepared readers for coming posts about the legalities of background screening and protections under various laws. For some candidates, one of those protections may be found in something called “Ban the Box.” As I explain below, ban the box may or may not be a protection for you. It has been included as a topic in these posts because ban the box receives a lot of media coverage which is sometimes confusing or downright incorrect. Before continuing, however, I need to remind you that I am not an attorney and I am not providing legal advice. If you believe your rights have been violated or have questions about those rights, consult with qualified legal counsel.

Back to the “box.” Think about some of the employment applications you have completed. Most likely there was a question similar to, “Have you been convicted of a crime?” which was followed by a yes/no checkbox. That question and that box – specifically its removal - is the target of ban-the-box laws.

You may be wondering why. Some ban-the-box advocates believe a “yes” response to a criminal history inquiry automatically sends an employment application to the rejection pile. Ban-the-box laws (also referred to as fair chance policies) are designed to provide job seekers the opportunity to be evaluated based on their qualifications before having to disclose a criminal history. As explained by NELP, the National Employment Law Project, in their January 2015 Ban the Box Resource Guide, the purpose of ban the box is “… so that employers consider a job candidate’s qualifications first, without the stigma of a criminal record.” NELP also reports that one in four adults in the U.S. have a criminal record. (If you’re interested, that separate NELP report is available here.)

An important note: Under federal and state law, automatic disqualifiers do exist for certain positions in regulated industries such as education, healthcare, and financial services. Ban the box does not impact qualifications for those positions.

Not surprisingly, ban the box draws both support and criticism. Supporters contend a criminal conviction should not be a lifelong employment obstacle and employment is a critical factor in decreasing recidivism. Some detractors condemn ban the box saying it essentially creates a new protected class for employment. Whatever your opinion, keep in mind that your prospective employer may – or may not – be subject to ban the box and if so, requirements vary by geographic location. (If you want to know about ban the box in a specific location, the NELP Ban the Box Resource Guide is helpful.)

The EEOC (Equal Employment Opportunity Commission) supports ban the box. In its April 2012 Guidance on the use of criminal records in employment, the EEOC wrote, “As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications…” Although this guidance does not have the force of law or regulation, the EEOC has successfully investigated and in some cases sued employers over their use of criminal records.

So what does all of this mean to you as a candidate for employment? The short answer is most employers are less likely to automatically reject you because you have a criminal record – assuming you have a criminal record and assuming your prospective employer used that kind of disqualification practice in the first place.

As with many legal questions, the more complete answer as to how ban the box impacts you is “it depends.” Currently there is no national ban-the-box law. Instead there are almost 100 state, county, and city laws and ordinances, many having unique requirements. In its simplest form, ban the box eliminates the criminal question from the employment application. These laws have evolved beyond simple, however, and now run the gamut from allowing criminal history inquiry during an initial interview (but not on an initial application) to requiring a contingent offer of employment prior to inquiry. Some laws require things like special signage in employer offices or special notices if you are disqualified, while others are dependent upon the number of employees an employer has within a city.

So, you may be covered by a ban-the-box law, but it depends on where you are applying and other factors. And, if there is an applicable law, your rights and protections will vary by city, county, and/or state. (Did I mention confusing earlier in this post?)

You can now add ban the box to your arsenal of knowledge about background checks for employment. And, as Bill has written, knowledge is power.

Speaking of knowledge, if you haven’t read Bill’s posts on Criminal Checks Part 1 and Part 2, you may want to do so. Ban the box deals with when an employer may ask about your criminal history. That is just one component of a much larger, generally misunderstood world of criminal records and background checks.

Although I can’t provide any legal advice, I’ll do my best to answer your questions. Let me know.