Ban The Box Laws

“Ban the Box” Laws:

(With thanks to James Publishing for allowing use of this material.)

Removing Barriers to Employment After a Criminal Conviction

The collateral consequences of a criminal conviction can last for years and have

a detrimental effect on a person’s voting rights; gun rights; immigration status;

eligibility for federal assistance programs (e.g., SNAP or federal student financial

aid) and more. One of the most significant of these consequences is the negative

impact a conviction has on a person’s ability to obtain work. Anyone with a criminal

conviction faces an uphill battle when it comes to getting hired. Over the past

two decades, however, several states and localities have passed laws aimed at

reducing some of the employment barriers faced by ex-offenders. This so-called

“ban the box” legislation limits the ability of employers to inquire about criminal

convictions during the hiring process.

1. POST-CONVICTION EMPLOYMENT BARRIERS

Post-conviction barriers to employment are real and significant. All 50 states and

the federal government impose some sort of employment licensing restrictions

on individuals with a criminal conviction. The federal government, for instance,

prohibits convicted felons from working in airport security. Several states prohibit

an individual with a felony conviction from working as a firefighter, a real estate

agent, a contractor, doctor, barber or hairdresser. In addition, doctors, attorneys,

and certified financial planners and accountants may face professional censure

from licensing agencies as a result of a conviction. The stigma of a conviction and

the common (but often unfounded) fear many employers have of potential liability

for hiring a convicted felon also create unwritten, but nonetheless real, barriers.

Barriers to employment attach whether a conviction stems from a guilty plea

entered as part of a plea bargain or from a jury verdict of guilty. While conviction

of a felony (generally, a serious crime punishable by more than a year in jail/prison)

typically creates the most problems, some types of misdemeanor convictions can

make finding work challenging as well.

To make matters worse, obtaining and maintaining employment often is a

condition of probation, but these barriers to employment can make it difficult, if

not impossible, to meet this condition. Under those circumstances, an inability

to find work can cause more than just financial stress; it can land a person in jail

for a probation violation, despite his or her best efforts to comply.

1. A BRIEF HISTORY OF BAN-THE-BOX LAWS

Hawaii passed the first ban-the-box law in 1998. Still in effect today, the legislation

prohibits both public and private employers from asking about convictions on job

applications. It also prevents companies from delving into an applicant’s criminal

history until after extending a tentative job offer. Furthermore, in order to revoke an

offer based on a criminal conviction, an employer must be able to show a logical

relationship between an applicant’s criminal history and the job requirements.

Hawaii was first, but many have followed. As of 2020, 35 states and the District

of Columbia have passed laws limiting the rights of employers to inquire about

criminal convictions. In addition, approximately 150 localities across the country

– including Los Angeles, San Francisco, Baltimore, Chicago and Rochester — have

similar legislation on the books. According to the National Employment Law

Project (NELP), approximately three-quarters of the population live in a jurisdiction

with some type of ban-the-box law.

While no federal law currently prohibits inquiry into an applicant’s criminal history,

regulations imposed by the U.S. Office of Personnel Management (OPM) prohibit

most federal agencies from asking about criminal history on job applications.

Plus, in December 2019, Congress passed the Fair Chance to Compete for Jobs

Act (FCA) as part of the National Defense Authorization Act (NDAA). This federal

ban-the-box legislation applies to all federal agencies, as well as federal civilian

and defense contractors. It prohibits covered employers from asking an applicant

about arrest and conviction history until after a conditional offer of employment has

been made. The FCA requires federal oversight entities to adopt procedures for

reporting violations of the law. It also provides for a series of escalating penalties

for violation of the law. The FCA is slated to take effect two years after the NDAA

is signed into law by the president (so, i.e., in December 2021).

III. SCOPE OF STATE AND LOCAL BAN-THE-BOX PROTECTIONS

Several different approaches exist when it comes to ban-the-box laws, but even the least

restrictive prohibit employers from inquiring about convictions on job applications.

That is, employers cannot ask applicants to check a box on an employment application

to disclose whether they have ever been arrested or convicted of a crime [e.g., “___

Yes / ___ No (check one)”]. Beyond this basic protection, a great deal of variation

exists when it comes to what these state and local laws do.

Covered Employers

Whether the law applies to public, private or both types of employers is a major

differentiating factor. Most of the 35 states with ban-the-box legislation limit

public employers’ ability to inquire about convictions when hiring. The District of

Columbia and several cities, including New York City, Rochester and Los Angeles,

extend the law to government contractors as well.

Some states take things even further and apply the law to most private employers.

States with this approach include California, New Mexico, Vermont and Washington.

Philadelphia, Spokane and 16 other localities have similar rules.

In addition, ban-the-box legislation typically applies only to workplaces with a

certain minimum number of employees. The vast majority of these laws do not

apply to most small businesses. California’s statute, for instance, only covers

workplaces with more than 5 employees. Austin’s legislation excludes companies

with fewer than 15 employees. In the District of Columbia, the magic number is

10 or more employees.

Timing

Another difference among ban-the-box laws across jurisdictions involves the point

during the hiring process at which an employer may inquire about an applicant’s

criminal history.

In states, like Connecticut, which only prohibit questions about criminal convictions

on initial applications, employers can legally go down that road as soon as a

candidate has submitted a completed application and officially applied. In Illinois,

companies can consider the criminal record of any individual invited for an

interview. Other states and localities allow employers to inquire about criminal

convictions at the end of an interview or after the selection process has been

completed. Still other jurisdictions only permit businesses to ask about a criminal

conviction after the extension of a tentative job offer.

Use of Information

What companies can do with criminal history information also varies. Some states

and localities place no limits on how employers can use information about criminal

convictions. Others, such as Hawaii, California and Colorado, only allow businesses

to consider convictions that have a reasonable relationship to the type of work

the candidate will be expected to do.

Notice

Notice requirements vary from jurisdiction to jurisdiction. Some states demand

that employers give applicants copies of their criminal history. Others insist that

businesses notify applicants in writing of why they were not hired if the hiring

decision was based on the individual’s criminal history. A few jurisdictions have

established appeals processes that candidates can use to challenge adverse

employment decisions by presenting mitigating information.

Almost all ban-the-box laws carve out exceptions for certain professions, such as

law enforcement personnel, healthcare workers and childcare professionals. All

jurisdictions permit employers to consider criminal convictions that are closely

related to core business functions at some point during the hiring process. For

instance, no law anywhere prohibits a transportation company from inquiring

about and considering drunken-driving convictions when hiring new truckers.

1. LEARN MORE

With the variations in state and local laws, you may be wondering, “How can I

know what law (or laws) applies to me?” Here are three easy-to-access resources

for more information:

1. NELP has a great website that provides detailed information about state and

local ban-the-box laws, including a quick-reading, comprehensive chart:

(a) Visit https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-

state-and-local-guide/#Chart_of_Local_Fair_Chance_Policies; (b) click on

the box at the bottom of the page [“download complete publication”] to

download the NELP ban-the-box resource guide; (c) find and review the

chart at the end of the guide.

2. Google “ban the box [your state]” or “ban the box [your county].” You will

find lots of leads and links.

3. Reach out to a local legal aid organization and/or your local chapter of the

ACLU. Attorneys at either of these organizations should be able to answer

your questions or refer you to someone who can. This can be particularly

useful if you live in a state or locality without ban-the-box legislation; in that

instance, it may be helpful to speak with an employment attorney about

whether your jurisdiction’s fair employment laws cover criminal-history-

based employment discrimination.