What to Know About Ban the Box (a.k.a. “Fair Chance Act”)

As of December 2016, more than 150 cities and counties have joined the Ban the Box movement. Started in 2004 by civil rights group All of Us or None, Ban the Box – also referred to as “Fair Chance Act” — encourages employers to remove the question and check the box, “Have you been convicted by a court?” from employment applications in an effort to provide applicants a fair chance at consideration. The purpose of Ban the Box is to delay background check inquiries until later in the hiring process, so that employers evaluate applicants based on their qualifications – rather than automatically screening out former offenders.

None of this is to say, however, that questions around criminal records should be eliminated completely. Every Ban the Box law includes provisions that allow employers to run a background check and make inquiries about criminal records in accordance with state laws.

There are three main reasons employers should continue to ask about criminal records and run background checks:

An employer has an obligation to provide a safe work environment for employees and visitors.
It offers protection against negligent hiring.
Falsification and/or failing to answer to the question honestly could still be a factor to consider when making hiring decisions.

When to ask about criminal history

CareerBuilder Employment Screening (formerly Aurico) recommends that employers ask the criminal background question after a contingent offer of employment and during the background screening stage. This is a natural fit, as the candidate will already be providing additional background information at this stage, and allows their answer to be collected through CareerBuilder Employment Screening technology. Additionally, whenever a candidate answers the question positively, CareerBuilder Employment Screening will go back to the county of record to verify the information.

Other Ban the Box requirements

In addition to not asking the criminal question on the initial application, some of these regulations have more requirements for employers to adhere to during the Adverse Action process.

States and jurisdictions that have passed more stringent regulations typically require employers to conduct an individualized assessment when evaluating criminal history information on a candidate or employee. They may also require an employer to include a “Disqualifying Factor” on Pre Adverse Action/Adverse Action letters. In areas like Los Angeles and New York City, employers may also be required to fill out a “Fair Chance Notice.”

Disqualifying Factor

The reason given to the candidate as to why the employer is taking pre adverse action. For Ban the Box regulations, the criminal record(s) would be considered the disqualifying factor.

Fair Chance Notice

For certain Ban the Box jurisdictions, this is a form employers are required to fill out to identify the reason they are making an adverse hiring decision based on the criminal record(s).

Does Ban the Box help or hurt employment?

Though there will likely be an increase in Ban the Box legislation across the country in 2019, there’s some evidence to suggest Ban the Box may actually hinder an applicant’s chance of getting a job. According to a study by the National Bureau of Economic Research, Ban the Box policies decrease the probability of young, low-skilled African American and Hispanic men. In addition, their findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.

To help ensure fair hiring practices, here are some best practices:

Ban the Box by delaying criminal history questions until later in the hiring process.
Train human resources staff on making fair decisions regarding applicants with criminal records.
Ensure internships and job training are available to individuals with criminal records.
Use reliable background check providers to help ensure accuracy.
Host a Fair Chance and Opportunity Job Fair.
Review job application forms on a regular basis.
Consult legal counsel on review of forms; do not use “set and forget” approach.
If you use CBES for pre-adverse action process, consult with your account manager to understand options.
Consider conducting yearly audits to ensure process is working as expected.
Consider training “on the ground” staff.
Partner with your background screening provider to assist in administering the required forms and letters.