Ban the Box Trends Continue - A Creative Services, Inc. Compliance Corner Article

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Ban the Box Trends Continue


 Although Ban the Box is not new, new jurisdictions continue to join the trend. Employers should understand Ban the Box restrictions and/or requirements in jurisdictions that may impact their employment screening program.

What is “Ban the Box”?

The “Ban the Box” campaign was born in the early 2000’s as a way to encourage employers not to immediately disqualify potential candidates based on a box checked on an employment application indicating the candidate has a criminal record. Ban the Box requires employers, at least initially, to evaluate a candidate on qualifications or other criteria before excluding them solely based on a criminal record.

Since 2010, Ban the Box has gained significant momentum with national exposure. According to a 2019 National Employment Law Project (NELP) Ban the Box Report, 35 states, the District of Columbia and over 150 cities and counties have adopted Ban the Box or fair-chance policies. Maryland is the latest state to join the Ban the Box movement earlier this year.

Ban the Box requirements can include a wide range of restrictions and/or requirements including:

     • What, if any, criminal history questions can be asked of applicants and when;
     • Whether a conditional offer is required prior to a background check;
     • Types of criminal records that can be used in a hiring decision;
     • Requiring written adjudication factors when considering if a criminal record may disqualify an applicant from employment; and/or
     • The length of time an applicant has to dispute potentially adverse information in their report.

What Should Employers Do About Ban the Box?

     • Review your state AND local laws to determine which law(s) may apply to your company.
     • Review your internal policies and procedures to be sure they align with any applicable Ban the Box requirements.
     • Review your employment application and process for compliance to any criminal history inquiry limitations or restrictions.
     • Train all hiring managers, recruiters and HR staff on any new policies and procedures.
     • Consult with your legal counsel or labor law attorney as necessary.

Information provided should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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