How to Handle New 'Ban-the-Box' Laws

The term, “ban the box,” refers to the question on hiring applications that asks if the applicant has a criminal record/conviction; if so, he has to check the “Yes” box. “Ban-the-box” laws are laws designed to restrict employers from including questions that ask about prior arrests or convictions on initial employment applications. The purpose behind the law is to reduce unfair barriers to the employment of people with criminal records. The ban-the-box movement requires employers to act and fast. Numerous states and cities have enacted such laws, and we expect more to follow in the near future. Illinois’ ban-the-box equivalent, titled the Job Opportunities for Qualified Applicants Act, takes effect Jan. 1, 2015. Illinois is prohibiting private and public employers from asking about an applicant’s criminal history until after the employer selects the applicant for an interview or provides the applicant with a conditional offer of employment. Illinois’ act applies to all private-sector employers with 15 or more employees. There are exceptions. The act does not apply to: (1) jobs that cannot be held by convicted criminals under federal or state law, (2) jobs  requiring licensing under the Emergency Medical Services System Act and (3) jobs requiring fidelity bonds. The act gives the Illinois Department of Labor (“IDOL”) the power to investigate alleged violations and authorizes IDOL to impose civil penalties up to $1,500. We expect that IDOL will start fining employers as soon as the act goes into effect. Private-employer ban-the-box laws currently exist in California, Colorado, Connecticut, Delaware, Illinois, Maryland,   Massachusetts, Nebraska, New Jersey, New Mexico and Rhode Island. Numerous cities have passed similar laws. Pending legislation exists in Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio and numerous cities. Some states’ laws prohibit employers from asking about criminal history in the initial employment application before conducting an interview, while other laws prohibit such inquiries until after the employer makes a conditional offer of employment. Be wary, as ban-the-box laws vary in terms of what types of criminal-history questions employers may ask applicants. For example, some laws only allow employers to ask about specific convictions and explicitly prohibit employers from asking about non-conviction arrests or expunged records. Exemptions can vary as well, with exclusions for facilities or employers that provide programs, services or care to minors or vulnerable adults. As each state’s ban-the-box law may vary, it is important for employers to reevaluate their pre-employment and hiring practices. Employers affected by ban-the-box laws that do not update their applications and pre-employment processes risk being investigated and fined on an individual and potentially class-wide basis. Employers that operate in different states need to be diligent to make sure their applications are tailored to each state and city. The takeaway: Have your HR department or labor counsel review your employment applications and company policies to ensure that questions regarding an applicant's criminal history comply with applicable laws. Additionally, employers should consider providing compliance training to employees involved in interviewing and hiring to make sure they are knowledgeable about the new laws. Laura Zaroski wrote this article with her colleagues Joseph M. Gagliardo, Lily M. Strumwasser and Laner Muchin.