Ban the Box Continues to Expand

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 The law in Newark, New Jersey, however, was superseded by New Jersey’s statewide ban the box law.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:

• Prohibits criminal history inquiries on employment applications and other data collection forms
• Requires criminal history inquiry be delayed until after an interview
• Requires criminal history inquiry be delayed until after a conditional offer of employment has been extended
• If adverse action is considered, the specific criminal history of concern must be identified
• If adverse action is considered, requires a specific number of days elapse between the pre-adverse notice and adverse action notice
• If potentially disqualifying criminal history is found, requires an individualized assessment be conducted and, in some locations, requires the three “Green Factors” be considered:
  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

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)

• If potentially disqualifying criminal history is found, requires completion of an individualized assessment using a specific form prescribed by the applicable location
• Requires a location-specific notice be provided as part of pre-adverse action or the individualized assessment process
• Requires posting of specific information in the employer’s workplace
• Prohibits referencing criminal history checks in employment advertisements or job postings

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.

Employer Solutions

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:

• Removal of the criminal history inquiry from employment applications and candidate data collection forms.
• Delay of the criminal history inquiry until after a contingent offer of employment has been made (or simply eliminate the inquiry).
• Use the Green Factors to conduct an individualized assessment and determine if the criminal history is relevant to the position being filled.
• If the criminal history is deemed relevant, use the pre-adverse action process to notify the candidate of potentially disqualifying information. Allow a reasonable amount of time for the candidate to dispute the criminal information and/or to provide additional information relevant to the individualized assessment.
• Some employers streamline the dispute and assessment process by including a standard questionnaire with the pre-adverse notice. The questions solicit information about the criminal conviction to support assessment based on the Green Factors. Although not required, some employers find it beneficial to place the “next step” in the hands of the candidate.

Employer Takeaways

1. Consider the feasibility of a single, nationwide policy and process to streamline compliance with ban the box requirements.
2. Educate team members on changes to policy and/or process.
3. Keep in mind that compliance with the Federal FCRA, State FCRA Analogues, and other applicable law is still required.

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.