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What You Should Know About ‘Ban the Box’ Laws

Business Litigation / Contractors and Employees / Legal Agreements

If you haven’t yet heard about the legislative initiative sweeping across the country known as “Ban the Box,” you probably will soon.

Indeed, if your company is located in one of the 33 states or more than 150 cities and counties that have adopted such laws, you risk legal penalties and lawsuits if you’re not currently adhering to these “Ban the Box” regulations already on the books.

And seeing that the Ban the Box movement is almost guaranteed to expand into new states and municipalities (maybe yours?) in the near future, you probably ought to learn about these laws sooner rather than later. In fact, if you’re planning to hire new employees or contractors soon, you should not only be aware of these laws, but also understand exactly how to comply with them.

Evolution of Ban the Box
Ban the Box laws initially started with state legislation prohibiting employers from including the widely-used question on job applications directing applicants to “check a box” to indicate whether they’d ever been arrested or convicted of a crime. Since then, the laws have expanded to require employers to follow a variety of different rules related to how and when employers can ask applicants about their criminal history, as well as how and when background checks can be conducted.

For example, some of the new fair-hiring ordinances adopted in many U.S. cities restrict an employer from asking about an applicant’s criminal history until a conditional offer of employment has been made. Other regulations take things a step further by prohibiting employers from denying employment based on a conviction, unless the offense reasonably relates to the position’s actual functions.

That said, it’s important to note that none of the Ban the Box laws prohibit you from asking about an applicant’s criminal history or running background checks. Rather, the regulations are focused on delaying inquires about criminal history and running background checks until later in the hiring process in order to make the process fairer for all.

Federal laws already in place
Currently, no Ban the Box legislation exists at the federal level. Yet, many of these laws are similar to the guidance provided by the U.S. Equal Employment Opportunity Commission (EEOC). In 2012, the EEOC endorsed removing the conviction question from job applications as a best practice to ensure fair-hiring practices and prevent discrimination.

In addition to the EEOC, you must also comply with the Fair Credit Reporting Act (FCRA). When running a background check, for instance, the FCRA requires you to follow strict procedures:

  • You must notify applicants in writing that a background check is being conducted and may impact their employment eligibility. This notification must be a stand-alone document separate from the job application.
  • An applicant must provide written consent to the background check.
  • If regular background checks are a condition of employment, a company must explicitly say so in its written policies.
  • If any personal interviews are conducted to learn about an applicant’s work history or character, the applicant has a right—and must be notified of that right—to a description of the nature and extent of these interviews.

However, you should NOT assume that simply complying with these federal regulations will ensure adequate compliance with Ban the Box. Though the state and municipal laws may be similar, they have their own unique requirements—which can be even more extensive.

Do Ban the Box laws apply to you?
Whether or not these laws apply to your business is based entirely on whether or not you’re located in a state, county, or city that has passed such legislation. And since the individual laws can vary greatly from place to place, it’s imperative you check the laws in all locations where you hire employees and/or contractors.

What’s more, even if you are operating in a location where such laws exist, the rules don’t always apply across the board to every business. Some states and municipalities, for instance, only require employers in the public sector to follow the laws, while others require all employers—public and private—to adhere. In general, whether or not these laws apply to your company depends on multiple factors, including:

  • The size of your business (in many locations, the laws apply only to companies with 10 or more employees)
  • Where you’re located and where you hire
  • Whether you’re a government agency or private employer
  • What industry you’re in (sectors like child care, law enforcement, health care, education, and banking have much stricter hiring requirements that supercede these laws)

Avoid problems by understanding the laws in your area
Though you can learn about Ban the Box laws fairly easily on your own using Google, such legislation is constantly evolving and frequently entails complicated documentation and procedures. Given this, its best to consult with a Creative Business Lawyer® to determine which laws might apply to your company—and how exactly to comply.

If such laws do apply to your company, we can assist in evaluating—and if necessary—updating your current job descriptions, employment applications, and hiring processes to ensure they’re in full compliance. While you may not be legally required to follow such laws right now, it’s highly likely you will soon, so contact a Creative Business Lawyer® today to learn exactly what’s required in your area.

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