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Posted: January 17, 2018
Ban the box laws and ordinances, frequently referred to as “Fair Chance Acts” or “Fair Chance Policies” are designed to help level the employment field for candidates with criminal history.
The following information is provided for general educational purposes only and should not be considered legal advice. Consultation with qualified legal counsel is recommended in all matters of employment law.
Ban the box does not prohibit the use of criminal record checks, rather it delays inquiry into criminal history and the criminal check until later in the selection process. The objective of such a delay is to have employers focus first on a candidate’s qualifications before considering the impact of criminal history, if any. In its original form, delaying inquiry was accomplished by removing the criminal history question from employment applications. Ban the box laws and ordinances simply prohibited the criminal history question and attendant “Yes/No” boxes.
Ban the box laws and ordinances now exist in 29 states and 150 municipalities. Ban the box laws, however, vary widely in requirements and applicability. One of the chief differences in ban the box laws is scope – meaning whether the law applies to public employers (government), private employers, or both. Currently nine states, the District of Columbia, and 14 municipalities have ban the box laws applicable to private employers. Previously 15 municipalities had ban the box laws. The law in Newark, New Jersey, however, was superseded by New Jersey’s statewide ban the box law. No U.S. Federal ban the box law applies to private employers.
These ban the box laws have many variations, creating an often confusing web of requirements for employers. Further, ban the box laws have expanded beyond the “inquiry and box” and now impact the hiring process more broadly. Among the varying provisions:
Note: The “Green Factors” originated in a case heard by the U.S. Supreme Court, Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)
Some of the requirements listed above preclude a background screening company from processing pre-adverse and adverse action on behalf of an employer in certain locations. Screening companies cannot identify the specific reason for potential adverse action, assess relevancy to the position being filled, conduct an individualized assessment, or complete special assessment forms.
Rather than create location-specific employment applications and processes, many employers have chosen to apply a nationwide policy and process that accommodates the most stringent ban the box requirements. Typically this results in:
For information on specific requirements by location, contact us today. The National Employment Law Project (NELP) Ban the Box Toolkit is also an excellent source of detailed information. This toolkit is updated frequently as new ban the box laws are adopted. As always, be sure to subscribe to our Blog, Updates and Compliance Corner posts to remain up to date with the latest legislative developments and changes.