“BAN THE BOX” Is Knocking Down Your Front Door
I have written previous articles warning you to keep an eye on the “Ban the Box” laws sweeping the country. Last night, November 2, 2015, President Obama announced he will be issuing an Executive Order to “Ban the Box” for federal employers, but has not given a date of the order. This will likely also be required for contractors doing business with the federal government.
So, what is “Ban the Box”? In the most general sense, the Ban the Box effort is an initiative to get employers to stop asking about criminal history on employment applications. The ideals behind Ban the Box policies are that they give people with criminal records more of an opportunity to compete for jobs, because they are being allowed to demonstrate their skills and experience, and hopefully impress an employer, before their criminal record becomes a consideration in the hiring process.
The president noted that around 70 million Americans have some sort of criminal record — that’s nearly one in five Americans, and nearly one in three Americans of working age. “A lot of the time that record disqualifies you from being a full participant in society,” President Obama said. “It means millions of Americans can’t even get their foot in the door… We’ve got to make sure Americans who paid their debt to society get a second chance.” The president noted that major companies like Walmart, Target, Home Depot and Koch Industries have already “banned the box” on job applications, while 19 states have done the same.
As of November 2015, There are a total of 19 states and over 100 municipalities representing nearly every region of the country that have adopted the policies —California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). Seven states—New York, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have removed the conviction history question on job applications for private employers, which advocates embrace as the next step in the evolution of these policies.
So, what can you do to deal with “Ban the Box” efforts?
Well, first, you need to stay abreast of the laws and changing policies in any location where you hire. Consult with your employment attorney. In some cases, you may want to seek local counsel in areas where new policies have been put into effect.
Next, review all forms used in the hiring process to ensure that they comply with any applicable laws and policies in your area.
Your company also needs to deal with “the big picture” issues here. As “Ban the Box” policies expand, they are likely to affect many more employers. Even if they don’t affect you – or affect all your locations – they may some day. Now is a good time to take a step back and discuss your company’s position on the policy with your leadership. You may decide – as many large employers have already done since 2013 – to go ahead and eliminate the criminal background check question on job applications at all of your locations now. Or, you may not.
As with all human resources issues, it is important to stay abreast of changing Ban the Box policies and consult with your attorney to ensure you are in compliant in your hiring practices.