“Ban the Box” Ascendant: States Increasingly Restricting Applicant Criminal Record Inquiries

BY: D. EARL BAGGETT AND J. NELSON WILKINSON

On January 1, 2014, it became illegal for Rhode Island employers to ask about criminal convictions on job applications. Employers in that state now face civil rights charges, monetary damages, and even liability for attorney’s fees if they attempt to screen applicants based on their criminal history. But Rhode Island employers are not alone. They are merely the latest to join a growing class of employers subject to so-called “ban the box” laws that are being enacted throughout the country.

“Ban the box” is the name advocates have given to laws that generally prohibit employers from including on employment applications any question, or check “box,” inquiring about the applicant’s criminal history. Approximately ten states have adopted some form of “ban the box” law, but traditionally the restrictions applied only to public employers. Recently, however, those laws have been expanded to cover private employers as well.

Currently, only four states have “ban the box” laws applicable to private employers: Hawaii, Massachusetts, Minnesota, and Rhode Island. Notably, however, half of those laws (Rhode Island’s and Minnesota’s) were passed in the last year, possibly reflecting a nascent trend.

Employers in states, like Virginia, that currently have no private “ban the box” laws should not become complacent. Although Congress has yet to pass a federal “ban the box” law, the Equal Employment Opportunity Commission has regarded employers’ use of criminal records with increased suspicion. In its latest guidance document the agency recommends a “ban the box” policy as the “best practice” for employers. Indeed, the EEOC has pursued charges and litigation against employers whose use of criminal background checks it regards as violating applicants’ civil rights. In 2014, employers using criminal background checks, particularly at the pre-offer stage, will likely continue to face scrutiny from the EEOC.

Further, many cities and localities in states without statewide “ban the box” laws are passing ordinances with similar restrictions. While most of these local laws apply to public employers, some apply to any private employer doing business with the city. At least two cities, Philadelphia and Newark, have laws that apply to all private employers.

What policies should employers implement if they are subject to, or seeking to get ahead of, “ban the box” laws? The question is complicated by the fact that each law is different. Generally, the laws prohibit employers from inquiring about an applicant’s criminal history prior to making a conditional job offer or at least conducting the initial interview. But the laws may carry other restrictions as well. For instance, “ban the box” laws may limit criminal inquires to a certain time period (e.g., the last ten years), or require that there be some relationship between the crime and the position. In fact, regardless of whether or not they use “the box,” the EEOC has taken the position that employers must engage in a multi-pronged analysis before disqualifying any applicant based on a criminal conviction.