There are several states and more than 60 cities that have passed legislation to “ban the box” by requiring private employers to remove questions about criminal background/convictions on the employment application. This movement is widespread and growing momentum. The intent is to remove employment barriers for historically disenfranchised groups.
The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 to defer questions about criminal convictions until later in the hiring process. The purpose of the guidance was to provide “best practices” and to outline how asking about criminal history during the application process can potentially have disparate impact to individuals protected under Title VII of the Civil Rights Act, as amended.
There are some exceptions to these laws, generally for law enforcement positions, openings that require criminal history by law, and positions working with children. Below is a high level overview of key state laws related to “ban the box.”
California – Laws apply to public employment. The state cannot ask applicants to disclose information about arrests that did not result in conviction. It postpones all inquiries until late in the hiring process.
Colorado – State agencies cannot perform a background check until a conditional offer of employment is extended.
Connecticut – Laws apply to state employment. A criminal background check cannot be conducted until the applicant is “deemed qualified” for the position.
Delaware – Laws apply to state employment. A criminal or credit background check cannot be conducted until the applicant is “deemed qualified” and provided an opportunity to complete the initial interview.
Hawaii – Employers are banned from asking about criminal history until after the job offer is issued. Hawaii was the first state to pass ban the box legislation in 1998.
Illinois – Recently the state passed the Job Opportunities for Qualified Applicants Act, which becomes effective January 1, 2015. It prohibits private employers with 15+ employees from inquiring about or conducting a background screening prior to making a conditional offer of employment. The Illinois act also gives authority to the Illinois State Department of Labor to investigate and enforce the law.
Maryland – Baltimore passed the Fair Records Screening Practices Ordinance which prohibits private employers within the city with 10+ employees from inquiring or conducting a background check until a conditional offer of employment is extended to the applicant.
Massachusetts – Public and private employers may not ask about criminal history on the initial job application except where permitted by law. Applicants are to receive a copy of their criminal history report prior to inquiry and post a background check if an adverse impact occurs as a result of the report.
Minnesota – Employers are warned about inquiring about arrests. Ban the box legislation for public sector hiring was passed in 2009 and prohibits employers from making inquiries until the applicant has been selected for interview or provided a conditional offer of employment.
Missouri – The state prohibits employers from disqualifying individuals based on criminal convictions unless there is a reasonable relationship between the conviction and their ability to perform the job.
Nebraska – Laws apply to state employment. A criminal background check cannot be conducted until the applicant is “deemed to meet the minimum job qualifications.”
New Jersey – The state recently passed legislation banning employers with 15+ employees from asking questions about criminal history at the beginning of the employment application process and prohibits employers stating in job postings that they will not consider applicants who have been arrested or convicted. The new law goes into effect March 1, 2015.
New Mexico – Laws apply to the public sector and prohibit automatically disqualifying applicants based on criminal convictions.
Recommendations
- Employers impacted should examine all employment applications to ensure the questions about criminal history and convictions are covered later in the recruitment process.
- Employers should train human resources and talent acquisition on the proper protocol of how to handle situations where the applicant “volunteers” criminal background history information.
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