With the steady increase in jurisdictions enacting ban-the-box laws, it has become essential for employers to remain vigilant on understanding how the legislation impacts their hiring practices. Ban the box laws can be tricky for employers to navigate. Many jurisdictions have varying restrictions and applications of the law. Factors such as employer and applicant location and residence, the timing of criminal history inquiries, and the applicant pool are all impacted by ban-the-box restrictions. As a starting point, we've outlined some commonly asked questions regarding ban the box.
When Can I Ask an Applicant About Their Criminal History?
Jurisdictions vary when employers are permitted to inquire into an applicant's criminal history. Some jurisdictions restrict inquiries by employers into an applicant's criminal history until after the initial interview, unless a conditional employment offer has been made, while other jurisdictions are very restrictive, prohibiting employers from asking specific criminal history questions at all.
The laws typically assert that employers cannot inquire about an applicant’s criminal history until either after the initial employment application, at the initial job interview, after the initial job interview, or after the applicant has received a conditional offer of employment. What is more, some jurisdictions generally prohibit employers from inquiring into or considering certain types of criminal information at any point during the hiring process.
Does Ban the Box Apply if our Applicant Pool is Limited to In-State Applicants Only?
The location of the employer and residence of the applicant are factors that may trigger ban the box restrictions. If either party is located in a jurisdiction with ban-the-box restrictions, legislation may apply. Consequently, employers should consider whether their applicant pool consists of individuals located in states that have enacted ban-the-box legislation. This includes applicants relocating for employment or companies with locations throughout the country.
Is Ban the Box Triggered When I Run a Background Check?
Ban the box laws generally require that employers postpone criminal background checks until a certain period during the hiring process. A best practice would be to consider when in the hiring process your company inquires into the applicant’s criminal history and whether any jurisdictions' ban the box laws are triggered by such inquiry. For multi-state employers, the most conservative approach is to wait until after a position has been conditionally offered to the applicant to submit a criminal background check order.
What States Have Passed Ban the Box Legislation?
(as of June 2023)
- California
- Colorado
- Connecticut
- Hawaii
- Illinois
- Maryland
- Massachusetts
- Minnesota
- New Jersey
- New Mexico
- Oregon
- Rhode Island
- Vermont
- Washington
- District of Columbia
- Chicago, IL
- Baltimore, MD
- Montgomery County, MD
- Prince George’s County,
- MD
- Columbia, MO
- Kansas City, MO
- St. Louis, MO
- Newark, NJ
- Buffalo, NY
- Los Angeles, CA
- San Francisco, CA
- Westchester County, NY
- New York City, NY
- Rochester, NY
- Portland, OR
- Philadelphia, PA
- Austin, TX
- Spokane, WA
- Seattle, WA
- Waterloo, IA
- Maine
- DeSoto, TX
- Suffolk County, NY
- Des Moines, IA
- Gainesville, Florida
Please note: This list covered jurisdictions (state and local) that have passed ban the box legislation that is applicable to the private sector.
Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.
