Ban The Box

Everything You Need to Know About Ban the Box Regulations

Of all the trends impacting the background check industry and the employment hiring process, few have made a bigger or more successful splash than the ban the box movement.

Over the last decade, we’ve seen ban the box laws enacted across the nation, stretching from the local county level to state governments and even, to some degree, at the federal level. What is this policy all about, and what does it mean for your organization?

Learn about this movement to find out where ban the box legislation is in force, whether these laws apply to you, and how your organization can comply with these new regulatory demands.

What does ban the box mean?

Defining ban the box and its meaning is the first step to understanding the implications of this law. The “box” refers to a question on job applications that asks applicants if they have any criminal convictions in their past. Typically, candidates will need to check yes or no to answer this question, hence the “box.” 

Applications with this question require job seekers to self-identify as criminal offenders from the start of the job application process. A ban the box law requires employers to remove this question as well as any other criminal history questions from applications. 

These laws seek to reduce or prevent employment discrimination against individuals with criminal records. The idea is simple: by delaying the chance to learn about convictions, an employer can form a more unbiased initial impression of each applicant’s character, skill set, and overall job fitness. Criminal history questions can bias employers against applicants before they learn more about them, creating the potential for silent discrimination. 

With no criminal history questions on the job application and delayed background checks until later in the hiring process, an ex-offender theoretically has a better chance of being seen as the best person for the job. At a minimum, it levels the playing field to put ex-offenders on the same level as the average job applicant.

Most ban the box legislation also places other restrictions and requirements on employers. For instance, some states prohibit employers from inquiring about arrests, dismissed charges, sealed records, or someone’s history in a pre-trial diversion program. Some of these laws restrict employers from inquiring about criminal history until after the first interview or after they make a conditional offer of employment. Some jurisdictions require employers to consider other factors, such as time-related restrictions or whether the criminal history is job-related.

Employers must take care to review the regulations that apply to the areas in which they operate and hire due to this patchwork of different rules.

History of ban the box

Though ban the box has become a buzzword phrase over the last few years, the trend originated more than two decades ago. In 1998, Hawaii became the first state in the country to eliminate the box for both public and private employers. This law made it illegal for employers to ask about a candidate’s criminal history in any way until after first making a conditional offer of employment. 

In Hawaiian law, and in many laws passed in other states since then, a conditional job offer means employers still have the option to decline to hire a candidate if a background check reveals something seriously concerning.

Even in such situations, the Hawaiian law only permits employers to withdraw their offer based on a conviction if the criminal record has a rational relationship to the job and its responsibilities. The law only allows employers to consider criminal activity from the past ten years.

In the years since, as ban the box legislation became more common, other legislators looked to the Hawaiian law as a prototype. From the conditional offer requirement to the segmentation of public and private employers, Hawaii’s 1998 law established the trends, signposts, and overall language that inform how professionals and administrators still talk about banning the box today. 

What are fair chance laws?

These legislative requirements are part of a broader “Fair Chance” employment movement.

Proponents of “Fair Chance” laws argue that current hiring practices continue to punish individuals long after they’ve completed their sentences. By denying jobs based solely on the existence of records, offenders have fewer opportunities to re-enter society successfully. Advocates for Fair Chance policies claim that expanding employment opportunities for ex-offenders may reduce recidivism and help to prevent crime. 

Sometimes, Fair Chance laws include ban the box elements. Other times, they focus on different factors, such as encouraging employers to consider past criminal misdeeds on a case-by-case basis. Other times, these laws don’t concern criminal history information at all. For example, some localities have ordinances in place limiting employers’ ability to conduct credit history checks on their candidates. 

Not all Fair Chance laws apply to hiring, either. As banning the box has grown more common, it has also developed momentum in housing. Some jurisdictions now limit landlords’ ability to disqualify housing candidates based on their prior criminal history. Banning the box also now has a foothold in higher education, with colleges and universities looking to be more fair to students with criminal backgrounds.

How does ban the box affect employee record checks?

So, do these laws ban background checks altogether?

Both employers and job seekers commonly want to know the answer to this question. As these campaigns gained serious momentum, professionals often mistakenly understood it as an effort to ban all criminal checks for hiring purposes. In reality, that’s almost never true.

When a legislature passes a law to ban the box, the background check process doesn’t disappear overnight—or at all. These laws typically don’t forbid employers from running checks on their applicants overall. However, box-banning legislation commonly requires a delay when you obtain a criminal check. Most often, this delay lasts until after the first job interview or until you make a conditional job offer. 

Some of these laws also restrict how an employer can use the information they obtain. They may also require employers to give additional notices to applicants or delay the hiring process by granting candidates the right to appeal adverse decisions.

None of these limitations states that employers can't disqualify applicants based on past convictions. You can always withdraw a conditional offer of employment. Some ban the box laws (including the Hawaii prototype law) do limit withdrawals to situations in which your findings indicate that an applicant has a conviction history that would directly affect their ability to perform the job in question. 

For instance, an employer could fairly disqualify a candidate with multiple DUI or DWI convictions from consideration for a truck driver position. Those convictions speak directly to that person’s safety and responsibility behind the wheel. On the other hand, those same convictions have a minor relationship to an office job behind a desk all day. Such convictions might not necessarily be sufficient for an employer to withdraw a conditional hiring offer under some laws.

Ban the box laws encourage employers to consider criminal histories on a case-by-case basis rather than rejecting all applicants who check a crime records box on a job application form. The intent is not to bar employers from considering conviction history when making employment decisions but rather to add important nuance to those considerations.

Who does this law apply to?

One of the most critical things to understand about banning the box is that there isn’t just one law. Rather, it is a broader trend made up of hundreds of different laws nationwide. This includes local ordinances, pieces of pending legislation, and on-the-ground advocacy campaigns. While it is always possible that there could someday be a nationwide law that applies to every business, that’s not currently the case. Today’s landscape is a patchwork of different regulations.

Unfortunately, the current structure of ban the box legislation makes it more challenging for employers to understand their obligations. Some laws exist at the state level; others are ordinances that only apply to specific cities or counties. Likewise, some laws apply only to public employers; others include companies that do contract work with government departments, while others extend to some or all private companies in an area.

Even when this legislation does apply to private businesses, it sometimes only requires compliance for employers with more than a certain number of employees, such as 15. Very small businesses remain free to make decisions when and how they prefer.

The evolving nature of the fair employment movement means that laws change frequently. New jurisdictions adopt their own box-banning legislation each year, while jurisdictions that already have laws or ordinances in place sometimes amend and update those laws to include new requirements.

Because of these factors, employers must be vigilant about staying updated on the latest laws in their local jurisdiction. All employers should check relevant laws and ordinances before writing a hiring policy or background check protocol to determine their compliance obligations.

Failure to comply with these laws can result in fines and other legal consequences, including civil lawsuits. Doing research before drawing up a job application or deciding when to run a check can help employers to avoid these costly lapses in compliance.

To help you, here are a few frequently asked questions about these laws, including the key details that employers should know about this legislative movement.

States with ban the box

At the time of this writing, 37 states (plus Washington, D.C.) and more than 150 cities and counties throughout the United States have passed some form of this legislation, according to the National Employment Law Project (NELP).

Here are the states that currently have this legislation on the books:

*Note that states listed as having a ban the box law for “public employers that are part of the state government” have laws that only apply to state agencies or offices. Local governments—including city, town, township, or county offices—are not required to follow these laws.

For states listed as having banning the box requirements for “all public employers,” the legislation applies to all levels of government statewide.

There are 13 states that do not have this legislation of any type except in some local municipalities:

• Alabama
• Alaska
• Arkansas
• Florida
• Idaho
• Iowa
• Mississippi
• Montana
• South Carolina
• South Dakota
• Texas
• West Virginia
• Wyoming

Latest updates

New ban the box laws emerge regularly, both as state or county laws and as city ordinances. However, the pace of new laws has slowed considerably in recent years as focuses have shifted to drug screening and other fair chance efforts.

In some areas, ban the box laws apply only to public government positions; elsewhere, they apply to both private and public employers. You will want to perform research about your area to learn the specifics of your local ban-the-box laws and find out whether your state or local jurisdiction is considering such a law. 

For your reference, backgroundchecks.com’s ban the box document charts state and local restrictions on criminal inquiries and checks for non-governmental employers. 

As you can see, these laws are complex and vary from one jurisdiction to another. Employers can keep up to date with recent ban the box developments by following our blog, which often covers topics related to the Fair Chance employment movement.

Currently, the Equal Employment Opportunity Commission (EEOC) recommends that employers follow box-banning guidelines by eliminating questions about convictions from job applications and delaying checks–even when they are not required to do so by law.

In 2019, the Fair Chance to Compete for Jobs Act was signed into law, coming into force in 2020. This law bans the box for many kinds of employment with the federal government. It also applies to some contractors providing services to the government. Organizations that partner with the federal government and those who wish to compete for federal contracts should review the law to understand their obligations.

We expect these laws to continue to evolve and change in the coming years, and we will keep you updated about the latest developments and trends.

Ban the box pros and cons

Questions about the efficacy of banning the box often lead to a discussion about the trend’s pros and cons. 

On the surface, this policy's primary advantage is the potential to remove barriers to employment for ex-criminal offenders. Such opportunities give these individuals more of a chance to land stable jobs and work toward more normal lives. Since poverty is a factor that leads to criminal activity, this core “pro” of banning the box is a significant one.

However, there are also some cons. We have already discussed the confusing nature of the patchwork legislation in the U.S., which can place an extra burden on employers and lead to accidental lapses in compliance. Some studies also show that employers will compensate for being forced to abolish the box by requiring their candidates to have higher levels of experience or education or by hiring more white applicants than minority candidates. These maneuvers effectively replace one barrier with another. 

What does my company have to do?

There is no one-size-fits-all answer to this question. 

These laws vary significantly from one state or local jurisdiction to the next. While your business is statistically likely to be in a part of the country where such a law exists (NELP says that three-quarters of the U.S. population now “lives in a jurisdiction that has banned to box”), that doesn’t mean that your company is obligated to do anything right now.

Of the 37 states that ban in the box, only 15 of them extend their requirements to private entities (California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington). 

Twenty-two (22) areas–including Chicago, Baltimore, Los Angeles, New York City, San Francisco, Seattle, Philadelphia, St. Louis, and the District of Columbia–extend their protections to private jobs. Otherwise, most of these laws currently apply only to public employers.

You should take the time to research the legislative requirements in your state, county, and city or town. If a relevant law or ordinance is on the books, review the language of the law closely to determine whether it applies to your company. If you need help deciphering the law, our terminology page can help.

If the law does apply to your company, you will need to take steps to comply–whether that means removing questions about criminal backgrounds from your applications, delaying your criminal checks until later in hiring, or something else. 

Your business can also opt to abolish the box of its own accord. Some organizations have taken this step to signal that they are welcoming individuals who have made mistakes in the past and are trying to rebuild their lives. Banning the box before you are legally required to do so can also put you ahead of the curve for compliance if your state or local jurisdiction does decide to end the box.

Does ban the box work?

There is debate about how effective this policy is in making employment more accessible for ex-offenders. 

Champions say that it helps to reconfigure the mindset of employers and hiring managers in a powerful way, helping them to see beyond a person’s convictions to their skills and qualifications. According to a study conducted by the Urban Institute, these policies improve callback rates for people with criminal records, which means that they are effective for eliminating the tendency of hiring managers to immediately disqualify any candidate who self-identifies as having a criminal rap sheet. 

That finding is significant, given the fact that–per the National Association for the Advancement of Colored People (NAACP)–a criminal background can reduce a person’s likelihood of a callback or employment offer by almost 50 percent.

However, critics of this legislation argue that it merely delays the moment in hiring when an employer would disqualify a candidate for a relevant criminal conviction, wasting both the candidate’s and hiring manager’s time. The Urban Institute study also found that banning the box has “reduced the likelihood that employers call back or hire young black and Latino men.” Additional legislation, further study, and efforts to raise awareness about the positives of banning the box could contribute, over time, to reducing these concerns.