Human Resources

Ban The Box Legislation: Does it Effect Your Hiring Process?

Chances are you’ve heard the term Ban the Box. Perhaps your organization hires employees in one of the many regulated jurisdictions throughout the United States, and you’re a well-seasoned veteran of the regulations. Maybe you’re unfamiliar with the concept entirely! Whatever your situation may be, we hope this article can shed some light on the ever-growing, ever-changing Ban the Box movement.

What is Ban the Box?

In a nutshell, Ban the Box is a generic term used for a law or regulation that essentially prohibits an employer from inquiring about criminal records on an employment application, and in some cases, delays the time in which an employer can inquire about criminal records until later in the hiring process. The term derives from the criminal record question “checkbox” found on most employment applications.

Statistics from the United States Department of Justice indicate that there are approximately 650,000 individuals released from prison every year. These individuals have a need, and often a desire, to work and become productive members of society. In essence, Ban the Box is a well-intended movement designed to give individuals with criminal records a “fair chance” at employment. The conventional wisdom is that removing the criminal record question from an employment application will prevent an employer from making an automatic disqualification decision without first examining an applicant’s qualifications or providing a chance for him/her to explain his/her side of the story. Whether or not these laws are necessary or working as intended is entirely up for debate and certainly a topic for a separate discussion.

Currently, the following jurisdictions have some form or another of Ban the Box legislation on the books:

States: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island

Counties: Montgomery County, MD Prince George’s, MD

Municipalities: Baltimore, MD; Buffalo, NY; Chicago, IL; Columbia, MO; New York, NY; Philadelphia, PA; Rochester, NY; San Francisco, CA; Seattle, WA

Because Ban the Box laws vary greatly from jurisdiction to jurisdiction, you should consult with competent legal counsel in your jurisdiction to ensure compliance if your organization operates or hires employees in any of the aforementioned jurisdictions. In some jurisdictions, the law may or may not apply depending on the size of your organization and whether or not your organization is public or private. Nevertheless, it’s vitally important to understand if and how the law applies to your organization. This is especially true for employers with multi-jurisdictional operations who may hire individuals from different parts of the country. While all Ban the Box jurisdictions prohibit the use of a criminal record question or “box” on the employment application, many jurisdictions go beyond this basic requirement and require the employer to delay inquiring about criminal records or even running a background check until an interview has been performed or an offer extended.

Below are some examples of when an employer can inquire about criminal records during the hiring process:

Carefully examine your current hiring practices and examine whether or not it is necessary to ask applicants about their criminal history

The cities of Chicago, IL and Seattle, WA along with the states of Illinois, Massachusetts and Minnesota allow an employer to ask about criminal records after an “initial screening of applicants.”

Employers in Buffalo, NY, the states of Oregon and Rhode Island can ask about criminal records during the first interview, while employers in Montgomery County, MD; Price Georges County, MD; the state of New Jersey, Philadelphia, PA; Rochester, NY and San Francisco, CA can only inquire about criminal records after the first interview.

Finally, the cities of Baltimore, MD; Columbia, MO; New York City, NY; the District of Columbia and the state of Hawaii require employers to wait until after a conditional offer of employment has been extended to the applicant.

Given the growing trend of Ban the Box legislation across the country, ProScreening suggests that employers carefully examine their current hiring practices and examine whether or not it is necessary to ask applicants about their criminal history. Employers in Ban the Box jurisdictions should be especially careful with the risks of asking about criminal records, and should only do so when legally permissible.

Legal Disclaimer: This article is designed solely for informational purposes, and should not be inferred or understood as legal advice. Persons in need of legal assistance should seek the advice of competent legal counsel.


What Background Check Should Your Company Run In Order To Perform The Proper Due Diligence On A New Hire?

The first thing you should know is that a single "National" database containing all criminal records does not exist outside of the FBI system. Are you surprised to hear that? Most people usually are!

Unfortunately, employers and background check agencies cannot simply enter an applicant’s name, date of birth, or social security number into one place and receive all of their criminal records. Rather, criminal records are stored in several completely separate systems, including places such as in County Courthouses, State Repositories, and in privately owned multi-state databases. Clearly this can be overwhelming, especially when you are trying to determine which of those you need to have searched as part of your new hire background checks.

At ProScreening, we feel the best practice for an accurate and comprehensive criminal search is to perform BOTH a multi-state database search as well as a search of all county court records where an applicant has lived within the last 7 years. We call this search package our "Comprehensive Criminal Check". The following describes why it is important to include both types of searches in your background checks.

Searching an instant multi-state database can be compared to casting a wide net across the country to see if there are any crimes that your applicant committed across the country. Although these instant database searches are essential to find any crimes committed outside of where an applicant has lived, unfortunately they are estimated to only contain approximately 50% of court records from across the country. Due to that, databases should never be used as your only source for criminal records.

In order to perform a comprehensive criminal search, the industry standard (which we support) is to also search each counties felony and misdemeanor records where an applicant has lived. The best practice to do this accurately is to first determine where your applicant has lived, worked, and/or gone to school during the past 7-10 years. In order to do this, ProScreening utilizes a Social Security Number Trace to access 7 years worth of an applicant’s address history. With this information, we can make an informed decision as to which county criminal records we should search. County records are the most detailed, accurate and up-to-date type of criminal searches available. Unlike databases, the information contained in county criminal records is usually updated in real time and will contain the most accurate case disposition information.

Due to the different demographic restrictions of both the database searches and county records, we strongly recommend that your background check includes BOTH our Instacriminal Multi-State Database and 7 Years of County Criminal Records in order to provide you with a background check that is truly thorough. Aside from an actual FBI Background Check, our recommended Comprehensive Criminal Background Check is your best option to truly know what kind of person you might be hiring.