How 'Ban the Box' Laws Affect Private Employers

You’re going to hear a lot about the so-called “Ban the Box” laws in 2014. Across the United States, 10 states and more than 50 cities and counties have adopted Ban the Box policies. and similar policies are set to be considered in many other locales in 2014.

So, what is “Ban the Box”? In the most general sense, the Ban the Box effort is an initiative to get employers to stop asking about criminal history on employment applications.

It’s important to note that this is not a ban on asking about criminal history, conducting background checks, or using that information in the hiring process. Ban the Box simply delays background check inquiries until later in the hiring process.

The ideals behind Ban the Box policies are that they give people with criminal records more of an opportunity to compete their jobs, because they allow those individuals to demonstrate their skills and experience, and hopefully impress an employer, before their criminal record becomes a consideration in the hiring process.

As Madeline Neighly, an attorney with the National Employment Law Project, said in a recent interview, “This is an opportunity for folks to put their qualifications forward and to be judged on those first.

Many of the current “Ban the Box” policies apply only to public employers, but a handful of states have extended the policy to private businesses, and that number is expected to grow in 2014.

So, what can you do to deal with “Ban the Box” efforts?

Well, first, you need to stay abreast of the laws and changing policies in any location where you hire. Consult with your HR attorney. In some cases, you may want to seek local counsel in areas where new policies have been put into effect.

Next, review all forms used in the hiring process to ensure that they comply with any applicable laws and policies.

Your company also needs to deal with “the big picture” issues here. As “Ban the Box” policies expand, they are likely to affect many more employers. Even if they don’t affect you – or affect all your locations – they may some day. Now is a good time to take a step back and discuss your company’s position on the policy with your leadership. You may decide – as Target Stores did in 2013 – to go ahead and eliminate criminal background check question on job applications at all of your locations now. Or, you may not.

As with all human resources issues, it is important to stay abreast of changing Ban the Box policies and consult with your HR attorney to ensure you are in compliance.