To Ban or Not To Ban The Box

What are Ban The Box Laws?

“Ban The Box” laws are criminal background check laws that prohibit employers from requesting a potential employee’s criminal history on a job application. Depending on the jurisdiction, they may regulate when an employer can ask about criminal history, provide disclosure and authorization forms, and conduct a background check. These laws are meant to protect applicants convicted of a crime from automatic disqualification during the selection process.

Hawaii was the first state to enact these laws in 1998, and since then 33 states have adopted some form of the law. However, these laws get confusing because individual jurisdictions can still decide against them, even in a Ban The Box state.

For example, New York is not a Ban The Box state, but some municipalities have Ban The Box Laws. Buffalo and Rochester were the first NY cities to adopt the laws in 2014, followed closely behind by New York City in 2015. Most recently in New York, Suffolk County filed Ban The Box laws for businesses over 15 people, and NYC made sweeping adjustments to their Ban The Box and Fair Chance Act Laws.

Effect on Employers

Ban The Box laws don’t necessarily mean an employer can never ask about criminal history, but it does mean they have to wait longer to ask. They differ in small ways, like the number of employees required for a business to have required compliance for the law. In some counties, a conditional offer is required to even ask about criminal history at all.

That doesn’t mean an employer has to hire that person or be scared about facing a discrimination lawsuit if the applicant does have a criminal history. If a past criminal conviction interferes with the applicant’s potential job in any way, that applicant can be denied that position based on the FCRA requirements. For example, if a school is hiring a bus driver, a recent drunk driving conviction would be in direct conflict with that person’s ability to perform the job. In that case, the school has a valid reason to not hire that person.

Best Practices

The safest way to navigate these new laws is to conduct a background check after a conditional offer of employment has been made. Doing this procedure ensures that you are giving the candidates a fair and equal opportunity at the position.

Also, you need to inform the applicant if they were rejected due to their record. If an applicant has adverse information in their file and you decide not to hire them, the applicant needs to receive a Preadverse Action Letter.

Give the applicant at least five business days to dispute any of the information in their file and after that time, send them an Adverse Action Letter. If you have any questions about compliance, investigations, or your current processes, please reach out to (800) 284-0906 or email info@commercialinvestigationsllc.com to speak with our knowledgeable staff.