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Do your job applications ask applicants about their criminal history? If so, you could be violating various state laws that prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process.

These laws, commonly referred to as “ban-the-box” laws, have recently seen a rapid increase in support across the United States. The increase is largely attributable to the grassroots efforts of numerous organizations that aim to remove hiring barriers for individuals with criminal records. Employers who are caught unaware, or do not comply with these laws, risk exposure to fines and penalties, and being a target for individual and class-action lawsuits.

What Do the Laws Prevent?

Currently, there is no ban-the-box law that entirely prohibits inquiry into criminal history. Various laws do, however, dictate when an employer is permitted to ask about criminal history. Some laws permit inquiry into criminal history any time after the initial application, while others prevent inquiry until after the applicant has been selected for an interview, or after a conditional offer of employment has been made.

Ban-the-box laws also impose restrictions regarding what criminal-related information employers can ask applicants about. Some allow inquiry only into certain convictions, and explicitly prevent employers from asking about non-conviction arrests or expunged records. It is important to note that ban-the-box laws do not apply to every industry or position. For example, depending on the jurisdiction, positions in child care, health care, and financial institutions are often exempt from these restrictions.

Which Jurisdictions Have Ban-the-Box Laws?

While most ban-the-box laws currently only apply to public employers, a growing number of state and local governments have passed ban-the-box laws that apply to private employers. As of the date of this blog post, the following states have enacted private employer ban-the-box laws:

  • Hawaii
  • Illinois
  • Massachusetts
  • Minnesota
  • New Jersey
  • Oregon
  • Rhode Island

Additionally, a number of cities and counties have passed ban-the-box laws that apply to private employers, including Baltimore, Chicago, New York City, Philadelphia, San Francisco, Seattle, and Washington D.C.  Notably, Texas does not have any ban-the-box laws that apply to private employers.

Could An Executive Order Be On the Way?

There is growing speculation that the President, who has recently endorsed ban-the-box laws, could issue an executive order preventing the federal government and federal contractors from inquiring into criminal history at the initial stages of the hiring process. On July 30, a number of organizations advocating for a ban-the-box executive order participated in a demonstration at the White House, seeking to put pressure on the President to issue an executive order. Government contractors will want to keep an eye out for any future developments.

What Should Companies Do?

Employers should determine if they operate in a jurisdiction with a ban-the-box law. And if they do, they should determine what they are prevented from asking about entirely, review their applications and remove or limit questions about criminal history, and ensure their hiring policies appropriately delay inquiry into criminal history according to the applicable laws. Of course, one of the biggest challenges for multi-state employers is the lack of uniformity in the various laws. National employers will have to choose between individually tailoring their hiring practices to jurisdictions with ban-the-box laws, or adopting a uniform policy that is compliant with all applicable ban-the-box laws.