Recruiting, Uncategorized

Ban the Box Laws: Are You Affected?

‘Ban-the-box’ laws are laws that say you cannot have a question on your application that asks ‘do you have a criminal conviction?’ Typically, applications will ask for an explanation or description if the answer was yes. This forces immediate disclosure.

Ban-the-box refers to the checkbox where the applicant answers this question—and many states and municipalities are banning them at this stage in the process. The reason for these laws is that they fear employers are weeding applicants out based on this question alone, without further information.

The laws generally say that the employers should allow someone through the application process and give interviews before asking that question. It results in giving individuals a better chance at getting the job offer and forces the employer to consider individual circumstances before disqualifying someone based on a previous conviction.

“These background checks, these criminal conviction records—they’re not just a state or federal issue. It’s also becoming a city issue. We now have a myriad of ‘ban-the-box’ laws.” Sara Hutchins Jodka explained in a recent BLR webinar.

Many of these ban-the-box laws apply only to specific areas, cities, or municipalities—or even just to public employees. But they’re getting broader, and employers can get into trouble easily if they’re unaware.

Cities with Ban-the-Box Laws

Here are individual localities that have banned the box:

  • Alameda County, CA
  • Atlantic City, NJ
  • Atlanta, GA
  • Austin, TX
  • Baltimore, MD
  • Berkeley, CA
  • Boston, MA
  • Bridgeport, CT
  • Buffalo, NY
  • Cambridge, MA
  • Canton, OH
  • Carrboro, NC
  • Carson, CA
  • Chicago, IL
  • Cincinnati, OH
  • Cleveland, OH
  • Compton, CA
  • Cumberland County, NC
  • Detroit, MI
  • Durham City, NC
  • Durham County, NC
  • East Palo Alto, CA
  • Hartford, CT
  • Jacksonville, FL
  • Kalamazoo, M
  • Kansas City, MO
  • Memphis, TN
  • Minneapolis, MN
  • Multnomah County, OR
  • Muskegon County, MI
  • New Haven, CT
  • New York, NY
  • Newark, NJ
  • Newport News, VA
  • Norfolk, VA
  • Norwich, CT
  • Oakland, CA
  • Philadelphia, PA
  • Pittsburgh, PA
  • Portsmith, VA
  • Providence, RI
  • Richmond, CA
  • Richmond, VA
  • San Francisco, CA
  • Santa Clara County, CA
  • Seattle, WA
  • Spring Lake, NC
  • St. Paul, MN
  • Tampa, FL
  • Travis County, TX
  • Washington, DC
  • Wilmington, DE
  • Worcester, MA

Additionally, some states have unique restrictions prohibiting questions about criminal history, and these are different than the federal laws. These states include:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Georgia
  • Hawaii
  • Illinois
  • Indiana
  • Kansas
  • Massachusetts
  • Minnesota
  • Montana
  • Nevada
  • New Mexico
  • New York
  • New Hampshire
  • New Jersey
  • Oregon
  • Pennsylvania
  • Washington
  • Wyoming

Another related restriction is that several individual state restrictions into sealed or expunged records. These states prohibit the consideration of sealed or expunged criminal records:

  • Colorado
  • Connecticut
  • Delaware
  • Illinois
  • Indiana
  • Kentucky
  • Maryland
  • North Carolina
  • Ohio
  • Oklahoma
  • Oregon
  • Rhode Island

Finally, there are also some states with requirements that these queries be specifically related to the job in question. These states provide for different standards of job-relatedness:

  • Colorado: substantially related
  • Hawaii: rational relationship
  • Kansas: reasonably bear on trustworthiness or the safety/well-being
  • Minnesota: directly relate to the position
  • Missouri: reasonable relationship to job qualifications
  • New York: directly related to job
  • Pennsylvania: relate to applicant’s suitability and relate to suitability for employment
  • Washington: must relate reasonably
  • Wisconsin: must substantially relate

As you can see, it can be tough to keep all of the varying state requirements straight, especially for a multi-state employer. Some employers have opted to form national policies based on the strictest requirements.

For more information on ban-the-box laws, order the webinar recording of “Conducting Legally Sound Background Checks: FCRA Requirements, EEOC Guidance, and Other Recent Developments.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Sara Hutchins Jodka of Porter Wright has significant experience representing employers in all facets of employment-related litigation. Ms. Jodka has drafted company handbooks, workplace policies, and more.