Ban the Box: Impact on Pre-Employment Screening

Note: this is Global's interpretation and is not positioned as, nor should be considered as legal advice.  

What is Ban the Box?

Although ban the box laws vary in each jurisdiction, generally speaking, the movement requires employers to remove the box asking applicants if they have been convicted of a crime from the initial application for employment.  The intent of the law is to give each applicant a fair chance at gaining employment based on their work capabilities and related qualifications.  The variation across jurisdictions comes in as to when the employer can ask if the applicant has a criminal history.  For example, in some jurisdictions an employer can ask after the initial interview.  In others, employers must wait until an offer of employment is extended.  Each jurisdiction is different, be sure to check your local laws.

How does it Impact Pre-Employment Screening?

As the ban the box movement sweeps across the United States, it's important for employers to understand what it may mean for their pre-employment screening processes.  As of today, 18 states and over 100 cities and counties have enacted a version of ban the box legislation*.  New York City is the latest big name city to implement this policy for both public and private employers.  Compliance with ban the box legislation is important to avoid unnecessary and expensive litigation.  

A best practice for HR departments is to conduct a thorough and lawful background screening before any new employee is onboarded to the organization, as permitted by law.  As long as your company's hiring policies include at a minimum (laws permitting), a comprehensive background check after an offer of employment is extended but before the employee is onboarded, then the process for vetting qualified candidates for any previous criminal activity likely remains unchanged if ban the box legislation is enacted in your business jurisdiction.  

What employers should do

Organizations would be wise to consult with legal counsel to review both their applications and background check procedures in the locations that they are currently and planning to do business in, to ensure "ban the box" compliance is being satisfied.  Additionally, in order to achieve a comprehensive profile on any applicant during the background screening process, it is important to check for criminal records at the local, state and federal level.

 

A good 3rd party breakdown by jurisdiction is available at this site (http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf)

*http://www.nelp.org/campaign/ensuring-fair-chance-to-work/