Criminal Background Checks, Employment, And Ban-the-box Laws

In the late 1990s, a movement, referred to as ban-the-box, gained momentum that sought to reduce the negative impact on former convicts and their future job prospects. Since then, many states in the United States have passed laws that have reduced or eliminated the stigma former convicts face when filling out job applications, interviewing, and getting hired. For many former convicts, ban-the-box laws give them the break they need to rebuild their lives.

What does ban-the-box mean?

The term ban-the-box refers to the box that job applications have historically included asking applicants if they had a criminal record.  Employers would then instantly exclude any applicant that checked the box, “yes,” that they had a criminal record. 

According to the ban-the-box advocates, using an applicant’s criminal record as an instant disqualification method for reducing an employer’s applicant pool, unfairly punishes the former convict 1) who, as a texas federal criminal appeals lawyer argues, may have been innocent, 2) has paid their debt to society, and 3) are more qualified for available jobs than their counterparts who did not have criminal records.

Thus, advocates argue that it should be illegal to ask an applicant about their criminal record on an application, at minimum.  And in many states, the advocates have been successful.

It is also worth noting that an estimated 70 million people in the United States have a criminal record of some sort, employer exclude a large number of job candidates when they immediately exclude former criminals from the applicant pools.

Different types of ban-the-box laws

Ban-the-box laws place different restrictions on employers depending on the state, county, or city that has adopted the law.  In some case, employers are only prohibited from asking about an individual’s criminal history on the application but allows the employer to ask about criminal history at any time after that.

Other ban-the-box laws prohibit companies from asking applicants about their criminal history only after they have interviewed the applicant or after a job offer has been offered.

The most restrictive ban-the-box laws prohibit employers from considering an applicant’s criminal history at all unless the open position would involve job duties that are related to the crimes for which the applicant was convicted, especially sensitive positions .

Some states also require employers to consider the amount of time that has passed between the criminal offense and the former convict’s application when making hiring decisions about the prospective employee.

Does the United States have a ban-the-box law?

The United States does not have a federal law that prohibits private employers for asking applicants if they have been convicted of a crime. However, the The Fair Chance to Compete for Jobs Act of 2019 (FCA) prohibits federal employers and agencies from discriminating against an applicant by requesting their criminal history before a conditional job offer has been made, with some exceptions.

Also, although it does not apply to criminal records, the The Fair Credit Reporting Act (FCRA) requires private employers to take a number of steps before they may receive a consumer report from a job applicant or current employee.

How many states have ban-the-box laws?

Currently, there are at least 37 states and over 150 counties and cities with some form of ban-the-box laws.  Many laws only apply to government agencies’ hiring practices, but others extend to private businesses as well.

Below are the states that have ban-the-box laws for private business and/or government employers: