Ban the Box: 2023 Update

Banning the box legislation has been the top trend to watch in background checks and hiring for a decade and counting. Despite significant state and local progress, that trend still shows no signs of slowing. Efforts to provide workers with a “fair chance” continue. In some states, that has led to discussions around possible efforts to ban background checks altogether. 

As summer 2023 arrives, new laws and ordinances are now in effect or under consideration. These new rules could bring about notable changes for employers or landlords or simply require re-evaluating your existing approach. In this post, we will examine a few of the noteworthy ban the box and fair chance law changes that have recently emerged. First, however, a quick refresher. 

What does ban the box mean? 

The box in “ban the box” refers to a standard fixture of employment applications: a checkbox that asks if job candidates have been convicted of a felony charge. In years past, checking this box meant employers would often discard the application without a second thought. Though the EEOC deemed such practices discriminatory, employers would not be explicit about the denial, skirting the policy. 

Thus, many laws seek to “ban the box,” meaning to remove that question from job applications. In its many forms nationwide, similar rules and regulations implement further requirements, such as mandating a conditional offer of employment. The laws may also define when an employer may ask criminal history questions during the hiring process. Dozens of states and cities have enacted such laws. 

Considering ban the box pros and cons 

• Increasing the availability of jobs or housing to those with criminal records to reduce recidivism.
• Creating an employment environment with more diverse points of view.
• Reducing the impact of discrimination and ensuring equal access to housing and employment.

However, not everyone agrees—and some data suggests that not every attempt results in the desired outcome. Some of the potential downsides to these new ban the box laws and rules include: 

• Constraining employer choice about whom to hire.
• Inadvertently increasing discrimination in hiring as employers dismiss applicants based on other factors without using criminal background checks.
• Adding too much extra time to the hiring process causes problems for applicants and employers. 

Balancing the rights of employers and employees and creating a fair but safe employment environment remains a challenge legislators continually strive to solve. 

National “ban the box” efforts stalled 

Currently, legislation to ban the box for background check regulation is mainly regional. Laws exist at the state level, ordinances at the county or city level, and specific businesses may have internal policies for fair hiring. As the trend spread across the United States, many experts suggested that it was only a matter of time before a nationwide ban the box law took hold. Still, political realities have so far prevented this. 

Several years ago, a law applicable to every state seemed to be on the cards. In March 2021, the House of Representatives enacted the “Workforce Justice Act.” It would mandate banning the box for all private employers nationwide within three years of the act's passage. However, the bill stalled in committee and ultimately died. No further significant efforts have yet been made to reintroduce any similar bills, and with power split between the houses of Congress, the stalemate seems likely to continue. 

However, a federal Fair Chance Act did come into force late in 2021. This law, which acts similarly to banning the box, prohibits employers contracting with the federal government from asking about criminal convictions early in the hiring process. After more than a year since its enforcement, some elements of the Act's regulations are still being interpreted by the government. A final release of regulations may come sometime in 2023, but precise guidelines remain unavailable. 

The pace of state and local “ban the box” laws slow down 

Throughout much of the 2010s, substantial momentum built up behind the box-banning movement. That ultimately led to 36 states enacting some form of the law, usually applicable only to public employment with the state. As of 2023, 15 states now ban the box for private employers. However, the pace of new regulations passing into law has slowed substantially in recent years. In 2022, no states enacted new regulations on criminal history questions, and only a few cities adopted new rules on employers specifically. 

That's a far cry from recent years when a dozen or more cities might pass new rules. The cities that acted in 2022 include: 

• Gainesville, Florida, now requires employers to make a conditional job offer before using a background check. Gainesville is the first municipality in Florida to apply such rules to private businesses.
• DeSoto, Texas, which banned the box for private employers beginning in January 2022.
• Atlanta, Georgia. Atlanta did not specifically ban the box but instead mandated that employers conduct an individual assessment of all applicants with criminal records. 

The pace of legislation may be about to increase again. In Minnesota, the state House of Representatives has advanced new rules to delay background checks in private employment. In California, some legislators want to ban all background checks except in very narrow circumstances effectively. This rule change could have major effects on employers not only in California but ultimately nationwide. That's one important story to watch going forward.

Clean slate and expungement laws broaden

While the appetite for box-banning laws might have decreased, the desire for a level playing field has increased in other ways. More states continue to pass or consider passing laws that make it simpler for individuals to hide their criminal record from view. Sealing and expunging records allow applicants to say they have never been arrested and convicted; employers cannot consider these records. With the Biden White House making waves by announcing pardons for all federal cannabis offenders, states have begun to follow suit. In Oregon, tens of thousands of marijuana convictions were automatically pardoned. 

It's not just marijuana-related crimes. More cities and states continue contemplating expanding expungement opportunities to various non-violent crimes, including misdemeanors and some felonies. However, not every effort meets with success. In New York, a “Clean Slate” law proposal has failed in three consecutive legislative sessions.

Multiple locations consider restricting tenant background checks

Access to housing is a primary focus for advocacy today, almost as much as for employment. Many legislators question whether tenant background checks are fair or an unreasonable barrier to affordable housing. In New York, a ban on real estate background checks was proposed but not passed. In Alameda County of California, however, such a ban did pass. Now, federal regulators such as the FTC and the Consumer Financial Protection Bureau are engaged in a detailed review of tenant screening procedures. This could lead to additional regulation shortly. 

To keep up with future ban the box developments, right-to-respond rules, and other topics related to background checks, follow the backgroundchecks.com blog for the latest updates.