Think Outside the Box – The Widespread Movement that is Banning the Box - A Creative Services, Inc. Compliance Corner Article

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Think Outside the Box – The Widespread Movement that is Banning the Box


On March 24, 2016, Austin, Texas became the newest city to "Ban the Box." By now, you have likely seen reference to “Ban the Box” in employment alerts and notices, law newsletters, or government updates.

In some cases, Ban the Box represents a broad, widespread reform including public and private employers, as is the case in Massachusetts, among the first states in the contiguous United States to adopt such reform.  In other cases, the movement is more limited in scope, as in Maryland or New Mexico, to public employers only.

What is “Ban the Box”?
On the heels of Hawaii becoming the first state to adopt this fair-chance law in 1998, the “Ban the Box” campaign was born in 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 recent National Employment Law Project (NELP) Ban the Box Report, 21 states, the District of Columbia and over 100 cities and counties have adopted Ban the Box or fair-chance policies.  Federally, the Report outlines President Obama’s endorsement of Ban the Box by delaying criminal record inquiries of applicants to federal agencies until later in the hiring process. 

Ban the Box requirements range from restricting when, how and/or what an employer can ask a potential applicant about their criminal history, to what types of criminal records can be used in the hiring decision.  Some Ban the Box policies incorporate adjudication factors when considering if a criminal record may disqualify an applicant or candidate from employment while others require a conditional offer of employment prior to requesting a criminal record search. 

So what should employers do?

  •     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 for compliance to any criminal history inquiry limitations or restrictions.
  •     Train all hiring managers, recruiters and HR staff on any new policies and procedures.
  •     Talk to your background screening provider and understand what types of criminal records are being reported and they comply with all federal, state and local laws.
  •     Consult with your legal counsel or labor law attorney as necessary.

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