Blanket policies, such as refusing to hire anyone with any type of criminal record, may seem smart on the surface - “better safe than sorry” after all. However, those policies could be putting your company at risk of a lawsuit and you could be arbitrarily missing out on good hires. Fair employment laws require hiring decisions to be based solely on role-related and business-necessary criteria.

More specifically, over the past few years, many states have passed “Ban the Box” laws that prohibit employers from asking about criminal backgrounds on applications. Outside of those specific laws, sweeping policies on hiring anyone with a criminal record are considered generally outdated and could get you in trouble with the EEOC.

It’s imperative for your business that you understand how recent legislation affects your policies and the screening process for new hires at your company.

The "box" these laws refer to is the field that appears on most job applications asking applicants if they have been convicted of a crime. The purpose of ban-the-box legislation is to provide a fair chance at employment for those with a criminal conviction. The law aims to do this by removing the conviction history question from job applications and delaying background checks until later in the hiring process.

This does not mean that criminal convictions must be overlooked or will never be disclosed prior to hiring. Employers are still able to require background checks and create policies banning certain criminal convictions - especially those that could impact the job at hand. Employers are still able to (and should) assess applicants on their abilities and skills - it’s not a free pass to a job for anyone with a criminal record.

Ban-the-box regulations simply protect those with criminal backgrounds against automatic disqualification during the screening process by prohibiting an employer from requesting criminal history information on an employment application.

Additionally, some jurisdictions prohibit an employer from asking about criminal convictions until a specific point in the hiring process - typically the interview stage or after a conditional job offer has been extended. Several states also restrict an employer’s ability to use credit history in making employment decisions.

Over the past few years, lawmakers and employers have taken a closer look at hiring practices that lead to barriers in employment. Meanwhile, 70 million Americans have been convicted of at least one felony or misdemeanor in their lifetime. This is a group that is at a serious disadvantage when it comes to finding work - employers are less likely to contact a job applicant who admits to having a criminal background. Regardless of how long ago or how minor the conviction, many hiring managers would rather not take a risk on a candidate with any type of criminal background.

With this in mind, ban-the-box legislation has been gaining traction in states and localities across the country. Visibility and discussion on this type of legislation peaked in the media and online over the past two years as California passed state-wide legislation. However, these laws are not new. The first set of ban-the-box laws, commonly referred to as fair-chance hiring policies, were put in place as early as 1998 when Hawaii restricted employers from considering candidates' criminal history until after a job offer had been made.

The purpose of these policies is to alleviate hiring barriers, giving all applicants a fair chance to compete for jobs without the stigma of a record. Employers will still retain discretion over who they're hiring. As a business owner or manager, if you are concerned about a person with a conviction that relates to the job, you can still deny that person a job. These laws aim to remove blanket policies and require employers to look at candidates on a case-by-case basis. 

While the specific regulations vary state-to-state, they are part of a greater, nationwide trend of removing discriminatory practices in hiring. The idea is that these policies benefit everyone, not just those with a criminal record. Studies have shown that after a criminal conviction, those who remained unemployed were more likely to re-offend than those employed - meaning families, the community, and the economy all benefit from policies that remove barriers for employment.

Whether these laws apply to you depends on multiple factors, including:

While there are no federal ban-the-box laws, 35 states and over 150 cities and counties have adopted forms of these laws nationwide. All 35 states ban criminal conviction history questions from job applications for government and state jobs. 

Some extend the bans to private employers and contractors and include other provisions regarding criminal background information; such as explicitly preventing employers from asking about non-conviction arrests. In some states, certain industries or positions are exempt (such as positions in childcare, health care, education, and financial institutions).

Here are the 35 states that have adopted state-wide policies banning criminal conviction history questions from job applications for government positions: