Do You Ban the Box? Here’s Why You Should.

Beth Dean 01.17.23

Asking about criminal history is risky business. Here’s what to do instead.

You may be breaking the law if your job application includes a checkbox asking the candidate if they’ve ever been convicted of a crime. Banning this question during the application process, sometimes referred to as “ban the box,” gives people with criminal histories a better chance of fair assessments of their skills and qualifications instead of being denied employment from the beginning.

Sometimes, a criminal history may not affect the job at hand. Denying employment from the start across the board to anyone with a criminal record often leads to disparate impact among those in protected classes. Additionally, basing hiring off the simple checkbox on the application doesn’t consider the nature of the person’s crime, rehabilitation, or how long ago it happened.

Therefore, these laws aim to combat disparate impact and give qualified candidates a fair chance at employment.

Ban the Box States

So far, 15 states and several more localities have enacted “ban the box” laws among private employers, forbidding them from asking candidates about their criminal history on a job application. The list includes:

  • California
  • Colorado
  • Connecticut
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • New Jersey
  • New Mexico
  • Oregon
  • Rhode Island
  • Vermont, and
  • Washington.

Additionally, 35 states and many localities have enacted this ban in the public sector. 

What To Do Instead

So we’ve established that asking about criminal history on a job application is risky, but does this mean you’re required to hire criminals?

Absolutely not. Here’s what to do instead.

Instead of asking about criminal history in the beginning phases of a job application, we recommend reserving that question until after you have extended a conditional offer of employment, contingent on background screening results. 

This way, if a candidate is eliminated from consideration for a job before reaching this phase, you can rest assured it isn’t because of criminal history. You’ll only be extending those conditional offers of employment to candidates who seem like they would be a good fit for your company, so you’ll know at that point if their skills and qualifications match your needs.

When running a background check, only screen for criminal history that would directly impact the job. For example, if someone has a DUI but won’t be doing any driving for your company, that shouldn’t be a factor in employment.

Likewise, you’ll want to look at the time since the criminal incident. There may be a chance that the person has been rehabilitated from their past actions.

This process should be a transparent discussion between you and the candidate to assess the nature of any criminal history found and how it would impact the job. You may find it best to part ways or that the record would not affect the position.

For case-by-case advice on how to handle hiring and background screen results, contact your HR business partner at Nextep. Our certified experts are here to help!


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