What U.S. Employers Need to Know About Ban-The-Box Laws

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In a famous episode of U.S. comedy series “The Office”, branch manager Michel Scott learns that one of his employees, hired by another branch, is a convicted felon. In true television form, Michael informs all employees of the incident, and dons a convict felon persona “Convict Mike”  to advocate for why working in an office is preferable to being in prison.

Although this was a joke written 15 years ago, it raises the notion that individuals with a criminal past can have a very hard time finding employment post-conviction. In the last 15 years, dozens of states, cities, and counties across the U.S. have passed criminal reform laws or provisions. These laws, also known as “Ban-the-Box” laws, prohibit employers from inquiring about a candidate’s criminal history until a later point in the hiring process. Similar legislation is being introduced across the nation at a rapid pace, and it can often be challenging for employers to keep up.

Here, we’ll take a closer look at criminal history reform, and recently passed Ban-the-Box laws or amendments – particularly what you should consider as an employer when hiring.

How Criminal History Reform and Ban-the-Box Laws  Started         

Criminal history reform policies, including Ban-the-Box laws, originate from the idea that employers should consider a candidate’s viability for a position based on their qualifications before inquiring about their criminal history. This is so that job seekers are measured on merit and skill without the stigma of a conviction or an arrest record. Removing conviction or arrest history inquiries from job applications and delaying criminal background checks until a post-conditional job offer is typical of many Ban-the-Box measures.

Public leaders, U.S. Military Officials, and human rights advocates have backed criminal reform measures. Many concur that those with criminal records deserve a second chance. In fact, studies show that those with criminal records in many instances outperform those without criminal records.

Hawaii was the first state to pass ban-the-box policies in 1998. The policies were effective, and 2014 research stated that “by mollifying the social stigma attached to a criminal record during the hiring process, Hawaii’s ‘ban the box’ law proved to be extremely successful in attenuating repeat felony offending.”

Since the 1998 enactment of these policies, 39 states and jurisdictions have followed suit. In all jurisdictions, an employer cannot ask a candidate, “Have you ever been convicted of a crime?” until later in the process. I.E. – that “box” can no longer be present on a job application or questionnaire prior to an interview or hiring offer. In some jurisdictions, this applies to contractors as well.

However, not all laws are created equal, and some jurisdictions require special handling. For example, some laws may require that the specific criminal conduct that could disqualify a candidate from hire is identified by the employer and provided to the candidate when assessing criminal history. Others require that you conduct an individualized assessment that relates the candidate’s criminal conduct to their job as a part of the pre-adverse process. Sometimes you may have different requirements at the city versus state level. As you can see, employers cannot adopt a one-size-fits-all model for compliance. Fortunately, there are solutions available to help companies manage their responsibilities with different jurisdictions’ requirements. HireRight does this with our Compliance Workbench. Here, you can use our solution to manage your Ban-the-Box obligations in one place.

For example, the following jurisdictions recently passed or amended their ban the box laws:

New or Amended Ban the Box Laws and Policies

Let’s take a deeper dive into how some Ban-The-Box requirements vary from place to place.

DeSoto, Texas

Effective Date: January 1, 2022
Coverage – Employer:
Businesses with at least 15 individuals whose primary work location is in the City of DeSoto for each working day in each of the 20 or more calendar weeks in the current or preceding year (including agencies acting on behalf of employers)

  • Does not limit “an employer’s authority to make a hiring decision for any lawful reason, including the determination that an individual is unsuitable for the job based on an individualized assessment of the individual’s criminal history.”

Compliance Requirements: Conduct individualized assessments for DeSoto, Texas, workers.

Illinois

Effective Date: January 1, 2015 (Revised January 2021 – Effective March 23, 2021)
Coverage – Employer: Organizations employing 15 or more employees within a 20-week period

  • Organizations with more than fifteen employees need to conduct and provide an individual assessment
  • An employer must identify a “substantial relationship” between the individual’s criminal history and the job sought or held
  • Individualized assessment addresses:
    • The time passed since the conviction;
    • The number of convictions;
    • The nature and severity of the conviction and its relationship to the safety and security of others;
    • The facts or circumstances surrounding the conviction;
    • The individual’s at the time of the conviction; and
    • Any evidence of rehabilitation.
  • As part of the Adverse Action process: An employer must identify the “disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification,” and notify the candidate of their right to file a complaint with the Illinois Dept. of Human Rights.

Compliance Requirements: Provide criminal notices and individualized assessments for Illinois workers

  • Pre-adverse includes individualized assessment
  • Adverse identifies disqualifying criminal history and right to file complaint with Illinois Department of Human Rights.
New York City (NYC)

Effective Date: October 27, 2015 (amendments effective July 29, 2021)
Coverage – Employer: Employers with four or more employees (includes independent contractors who are not themselves employers and temporary employment firms).

  • Requires that employers first determine that a candidate is qualified for the position before extending a conditional offer of employment
  • After an employer has determined that a candidate is qualified and a conditional offer of employment has been extended, a criminal check can be conducted
  • Motor vehicle records are considered criminal information
  • Disclosures made to candidates must use the term “consumer report” and cannot use the terms “background report” or “background check”
  • Criminal disclosures (or any references to criminal screening) cannot be made to the candidate before a conditional offer of employment has been extended


Compliance Requirements: Implement a two-step background screening process for NYC workers.  Document and complete individualized assessments of a candidate, contractor, or employee’s criminal history against Article 23-A of the Consolidated Laws of New York using the city’s form or a substantially similar document.

Philadelphia, PA

Effective Date: July 12, 2011 (Revised February 2021 – Effective April 1, 2021)
Coverage – Employer: Any organization or their agent employing persons in the city

  • Employer must identify a “substantial relationship” between the individual’s criminal history and the job sought or held
  • Individualized assessment includes:
    • The nature of the offense;
    • The time that has passed since the offense occurred;
    • Its connection to the job that the candidate applied for; and
    • The candidate’s job history, character references, and any evidence of rehabilitation.
  • If an employer rescinds a conditional offer based in whole or in part on the candidate’s criminal history, the employer must provide the candidate with a written notice, including a copy of the criminal history report relied on for the adverse decision

Compliance Requirements: Provide individualized assessments and criminal notices as part of the pre-adverse process for Philadelphia workers.

Louisiana (Fair Chance Law, not Ban-The-Box)

Effective Date: August 1, 2021
Coverage – Employer: Companies with 20 or more employees in Louisiana

  • An employer must identify a “substantial relationship” between the individual’s criminal history and the job sought or held.
  • Individualized assessment includes:
    • The nature of the offense;
    • The time that has passed since the offense occurred;
    • The nature of the job sought.
  • Applicants are permitted to make a written request for “any background check information used during the hiring process.”

Compliance Requirement: Conduct individualized assessments for workers in Louisiana. However, employers are not expressly required to “ban the box” on initial employment applications and may inquire into a candidate’s criminal record prior to a conditional offer of employment.


We know that navigating compliance and legislation around employment laws can be intricate and confusing for employers.  A solution, such as HireRight’s Compliance Workbench, will help employers stay current on rapidly changing ban-the-box legislation, and provides options to fulfill legal obligations in various jurisdictions – all in one place.  

For more information on the latest criminal reform laws, check out our most recent Compliance Webinar Recording – HireRight Associate General Counsel Alonzo Martinez goes into more detail about these new or amended Ban-the-Box laws. Each quarter, HireRight holds a live webinar around compliance and legislation and will take live questions to help you navigate laws in your region.

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HireRight

HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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