More States and Cities Adopt Ban-the-Box Laws

More than 150 cities and counties in the United States, along with many states, have passed ban-the-box laws, which prohibit businesses from asking potential employees about criminal convictions. The term refers to the check-box on a job application asking whether a candidate has ever been arrested for or convicted of a crime. Ban-the-box laws aim to ensure that employers consider job candidates' qualifications first, without the stigma of a criminal record.

Spokane, Wash. and Kansas City, Mo. have enacted ban-the-box laws that take effect in June 2018. In some cases, employers in both the public and private sectors are also prohibited from discussing past criminal infractions during job interviews.

"Fair-chance employment" movement

As labor markets tighten, this "fair-chance employment" movement has gained traction. The Sentencing Project found that in 2015, one in three working-age Americans had some type of criminal record. Even a minor brush with the law can have a lifelong impact on a person's ability to make an income.

The National Employment Law Project (NELP) notes that social, community, and economic support are essential to keep offenders from re-entering the criminal justice system. Steady employment helps provide financial resources, a sense of stability and self-worth, and connections to society.

NELP contends that allowing employers to screen applicants for criminal histories can hold back the next generation of U.S. citizens and their ability to succeed. Also, denying work to so many can affect the economy as a whole.

Employer response to ban-the-box laws

Paychex HR consultant Jennifer R. Schedlin, MS, SPHR, SHRM-SCP, notes that ban-the-box laws bring challenges. "Clients lament that laws may make it more difficult to ask about convictions until after the initial interview, or by doing a background check after a conditional job offer has been given. Additionally, it makes it more complicated when hiring in multiple jurisdictions with differing regulations.” However, considering a candidate’s qualifications before looking at criminal history may broaden the pool of qualified candidates and help employers find the best candidate for the job.

Does your business need to comply with a ban-the-box law?

Employers should ascertain whether their state or local jurisdiction has established a ban-the-box law, or if laws could soon be enacted in their jurisdiction. From there, employers should review employment applications to determine whether revisions are needed, and assess their protocols used for background checks.

Other hiring best practices include:

• Maintaining up-to-date job descriptions that you can use to better ensure candidates meet minimum requirements for skills, experience, education, and licenses; and
• Training managers and other employees involved in the hiring process to ensure they make only lawful, nondiscriminatory inquiries.

Various employment screening and background check services are available for businesses that need help putting these practices into place.