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Ban, The Box Laws, Are Becoming Popular Nationwide

Ban the Box refers to the question or checkbox on employment applications asking whether the candidate has ever been convicted of a crime. In November 2015, President Obama announced that he was ordering the federal government’s HR department to delay inquiries about criminal background until later in the hiring process. He encouraged Congress to follow their lead and consider legislation that would ban the Box more broadly. Ban the Box is a growing trend in many cities and states. These “Ban The Box” laws are designed to restrict employers from asking job applicants about criminal convictions before an interview or being made a conditional job offer.

man sitting on bench reading newspaper

So far, the following nine states:
Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have banned the conviction history question on job applications for private employers. Over 100 cities, counties, and states now have some form of Ban the box legislation.

Do companies doing business in multiple states or cities now have to consider each location’s law and policy, causing employers to deal with different laws depending on where they’re located?
We asked Sissy Egan, who manages the operations and administrative functions. Human resources consulting firm Seay Management Consultants.

She advises that:
“An employer is covered by the regulations in the states and cities where the employee works, so this question should not appear on the application for those locations that have “ban the box” legislation. Employers cannot inquire about criminal histories until after a conditional job offer.”

We also posed another question to Ms. Egan:
“Does this question apply to “Ban the Box”?
“Have you had your driver’s license suspended or revoked in the last three years? Œ Yes Œ No If yes, give details……”
Egan believes that “Under Ban, the Box provisions it is permissible to ask if an applicant has a valid driver’s license. That question alone does not solicit criminal conviction information. Administrative determinations made by the DMV are not criminal convictions.

  1. However, if the license suspension or revocation is connected to a criminal offense, then there is the potential to lead to a discriminatory hiring decision based on checking the Box. Our recommendation is to wait until extending a conditional job offer where the applicant would undergo the background check, including a DMV report.”

As of 2016, there are 24 states from almost every section of the country that have adopted Ban The Box laws or policies:

Colorado (2012),
Connecticut (2010),
Delaware (2014),
Georgia (2015),
Hawaii (1998),
Illinois (2014, 2013),
Louisiana (2016),
Maryland (2013),
Massachusetts (2010),
Minnesota (2013, 2009),
Missouri (2016),
Nebraska (2014),
New Jersey (2014),
New Mexico (2010),
New York (2015),
Ohio (2015),
Oklahoma (2016),
Oregon (2015),
Rhode Island (2013),
Tennessee (2016),
Vermont (2015, 2016),
Virginia (2015),
Wisconsin (2016).
Ban the box legislation is designed to delay criminal record background check inquiries until later into the hiring process. Presumably, the result is that employers will not automatically preclude ex-offenders from employment and that the employer will evaluate applicants based on their qualifications and skills as if they had no criminal record.

The Law Of Unintended Consequences

A study by the National Bureau of Economic Research, conducted by Jennifer L Doleac of the Frank Batten School of Leadership & Public Policy University of Virginia and Benjamin Hansen of the Department of Economics at the University of Oregon found some unintended harmful consequences to the very minorities it was designed to help. The joint study titled:  Does “Ban the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden. They were not surprised when they uncovered some adverse effects of Ban the Box laws. The study found that city and state “Ban The Box” laws, which are adopted as a way of avoiding the initial criminal record questions on an employment application and moving criminal record background checks to later in the employment screening process, sometimes had a negative result.

“We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men. These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups likely to have a criminal record.”
While Ban the Box is meant to help minority job seekers, the study found “removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black, and Hispanic men when criminal records are not observable.”

  1. Doleac, in an article dated August 5th, 2016 on the University of Virginia website, in explaining her lack of surprise said:

“What we know about the impact of these types of laws is that providing more information about job applicants increases hiring of racial minorities, and taking information away decreases employment for those groups,”
Doleac is further quoted as saying:

  1. “I’ve done work on discrimination in the past, and the first thing that jumped into my mind when I heard about ‘ban the box’ was, ‘This is going to backfire. This is just going to result in statistical discrimination against groups that are more likely to have criminal records,’”

The study found that While Ban the Box is meant to help minority job seekers,
“removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black, and Hispanic men when criminal records are not observable.”
The UVA, Today article, explains how the Ban the Box study highlights the unintended negative consequences of policies limiting access to applicants’ backgrounds by employers. “Basically, what we know about the impact of these type hat at providing more information about job applicants increases hiring of racial minorities, and taking information away decreases employment for those groups,” Ms. Doleac said. The study on Ban the Box policies issued in July 2016 – Does “Ban the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden” (NBER Working Paper No. 22469) – by Jennifer L. Doleac and Benjamin Hansen is available on the National Bureau of Economic Research (NBER) website at www.nber.org/papers/w22469.
Companies doing business in multiple states or jurisdictions now have to consider the law and policy of each location. So far, at least, all ban-the-box laws include provisions that allow employers to run a background check and make inquiries about criminal records in accordance with state laws.
Compliance: Due to ever-changing and extensive employment regulations, we recommend having a professional human resources consultant conduct frequent reviews of your hiring policies and procedures.

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