Understanding Ban the Box Legislation & Fair Chance Hiring

For many job applicants nationwide, a single question on an application stands in the way of gainful employment. This question is often posed in the form of a check box and is meant to indicate whether or not the applicant has a criminal history. The “Ban the Box” movement, originating in Hawaii in 1998, was created in an effort to remove these questions from applications and give all applicants a fair chance at employment.  Ban the box legislation has spread across the country since then.

What is “Ban the Box” legislation?

Ban the Box legislation, also known as fair chance hiring practices, are criminal background check laws designed to provide a second chance to people with criminal histories. Under these laws, impacted employers are typically prohibited from inquiring about a candidate’s criminal history prior to an employment offer.

The general purpose of these laws is to ensure applicants are first considered for a position based solely on their skills and qualifications. An employer may only inquire about the candidate’s criminal history after a conditional offer of employment has been made. These policies ensure an equal opportunity for employment for all applicants because they reduce the odds that old or unrelated arrests or convictions will be used to immediately dismiss otherwise qualified candidates.

Ban the box policies not only positively impact applicants with criminal histories, but also their families, their community, and the local economy. By removing barriers to employment for the formerly incarcerated, local and state governments can increase their tax dollar reserves. For example, a study in Philadelphia concluded that hiring 100 ex-offenders would grow income tax contributions by $1.9 million, increase sales tax revenue by $770,000, and save $2 million each year through reduced criminal justice costs linked to recidivism.

Can criminal histories still be taken into account during hiring?

Yes, but they should not be the sole decision-making factor. After making a conditional offer of employment to an applicant based on their job qualifications, employers may proceed with running a criminal background check. Ban the box legislation is designed to further enhance fair chance hiring practices by ensuring employers don’t learn of any arrests or convictions until they’ve already determined the candidate would be a good fit for the role.

Should an employer choose to take adverse action against a candidate based on the contents of a third-party background check, they must follow carefully laid guidelines as prescribed by the FCRA. Specifically, the employer must supply a “pre-adverse action” notice to the candidate prior to taking adverse action, which includes denying employment. This notice must include a copy of the consumer report and the Consumer Financial Protection Bureau’s Summary of Rights. This stipulation provides the applicant an opportunity to discuss the report before any adverse action is taken by the employer. Once the employer decides to take the adverse action against the candidate, the employer must then deliver an “adverse action” notice to the candidate.

Where is “Ban the Box” legislation in effect?

To date, thirty-five states and over 150 cities and counties across the country have already adopted “ban the box” legislation. As an extension of these existing laws, the federal government passed the Federal Fair Chance Act, which is in effect as of December of 2021.

As they currently stand, most ban the box laws apply to publicly funded positions, with some localities extending the regulations to government contractors. Even still, some jurisdictions have implemented even broader-reaching ban the box legislation to private employers, such as: Austin, Baltimore, Buffalo, Chicago, Columbia, the District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Rochester, San Francisco, Seattle, and Spokane.

While the list of jurisdictions with regulations that apply to private employers is limited, it’s still a good idea for private employers nationwide to consider implementing fair chance hiring practices. As these laws become increasingly common, companies may want to put preemptive policies in place to prevent any future legal issues due to non-compliance. If you will be offering employment to some ex-offenders, provide peace of mind to your stakeholders with continuous criminal monitoring, which offers nearly instant awareness of any arrests during an employee’s tenure at your company.

Employers should review and update their application materials to ensure compliance prior to the law’s enactment. This will also provide hiring professionals an opportunity to adapt to the new regulations before potential legal consequences for non-compliance go into effect. Employers should consult with their legal counsel with questions related to their specific hiring practices and compliance with applicable laws.

For an in-depth breakdown of all existing ban the box legislation and how your business might be impacted, read more here.

How InfoMart Can Help

InfoMart supports fair chance hiring practices and is equipped to assist you with implementing a fair chance program. Remain compliant with ban the box legislation during your hiring processes!

About Tammy Cohen

Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record. To learn more about Tammy, visit www.tammycohen.com.

About InfoMart

InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit www.InfoMart-USA.com, follow @InfoMartUSA, or call (770) 984-2727.