Banning The Box — Criminal Records On Job Applications

States and municipalities around the country are adopting so-called “ban-the-box” laws intended to give job applicants with criminal records a fair chance at employment.

The laws stipulate that employment applications cannot include a box to check indicating that an applicant has a criminal background. In addition, employers subject to such laws are prohibited from asking about or considering the criminal history of a jobseeker during the early stages of the employment application process.

How Do Ban-the-Box Laws Work?

The intent behind ban-the-box laws is avoiding discrimination against individuals with criminal records. In many cases, applicants with criminal histories do not receive calls back from employers for interviews.

Some experts argue that the standard of asking about criminal records upfront is especially unfair to people of color, whose communities experience higher rates of incarceration. Ban-the-box laws seek to quash barriers to employment for individuals who have criminal convictions or arrests in their past, have gone through rehabilitative programs, and want to work.

However, even with ban-the-box laws in place, employers still can ask about criminal histories later in the application process. The theory behind the laws holds that once hiring managers meet an applicant, they’re less likely to reject the individual automatically due to a criminal record.

The laws typically stipulate the point in the process when employers can conduct criminal record verification. However, specific requirements vary in different cities, counties and states. In some jurisdictions, the laws cover only public employers; in others, private employers also are subject to compliance.

Combined with other federal, state and local hiring regulations that address criminal history, ban-the-box laws are creating a confusing patchwork of requirements for many employers.

The laws typically do not require that companies hire someone with a criminal record. Instead, the laws specify the point in the process when employers can ask about criminal history — and the elements of criminal background that are subject to inquiry.

Supporters: Laws Benefit Communities

Advocates of ban-the-box laws say they benefit families and local communities. Employers that support the laws cite stories of hiring someone with a criminal record who turns out to be a top employee.

Across the country, 24 states and more than 150 counties and cities have adopted the laws in an effort to erase the stigma that can come with a criminal record, according to the National Employment Law Project. With such laws in place, employers look at the qualifications of an individual first without having their impression clouded by the presence of a criminal record, the group argues.

The laws have spread quickly in recent years and have received the endorsement of former President Obama, who instructed federal agencies to put off record verification until later in the application process for government jobs.

Laws Hurt Applicants, Critics Argue

Despite the purported benefits, not everyone is in favor of ban-the-box laws. Some critics argue that the laws actually hurt the communities they’re intended to help.

University of Michigan researchers found that employers may be less likely to pursue applicants with stereotypically African-American names than those with stereotypically Caucasian names. When ban-the-box laws are in place, employers may be even more likely to avoid the applicants with stereotypically African-American names.

Rather than improving the chances for people of color, the presence of the laws may make the odds of getting a job worse, critics say. The reason? When employers legally cannot conduct background inquiries early in the application process, they may jump to conclusions and rely on outdated and harmful stereotypes that people of color are more likely to have criminal histories.

Despite law’s intent, white applicants may gain an advantage, the researchers say. The advantage may be significant; the research indicated that before ban-the-box laws went into effect, the discrepancy in callbacks for white applicants versus people of color was 7 percent, but it jumped to 45 percent after the laws became effective.

Ban-the-box laws are intended to protect individuals with criminal records from hiring discrimination. In the end, though, ban the box may have the opposite effect, preventing individuals without criminal records from saying so early in the hiring process.

For Employers, Laws Mean Complex Hiring Issues

What are the implications of ban the box for employers? It’s clear that particularly in concert with existing regulations, the new laws may pose complex challenges for the hiring process. Not all laws apply in every hiring scenario, and employers may face difficulties in determining which laws — or even portions of laws — apply in specific situations.

No one-size-fits-all approach exists for determining when ban-the-box laws may apply in different jurisdictions, but employers that wish to be proactive in complying with the law should consider their hiring practices. Which positions, if any, require knowledge of criminal history early in the application process? Is the internal procedure for handling criminal records consistent and fair to all applicants?

Employers that work with Global Verification Network for criminal record services gain the benefit of broad knowledge of quickly changing employment laws across jurisdictions. For a consultation with an investigative specialist, please contact Global Verification Network.