Ban the Box: A Growing Movement to Remove Criminal History Questions from Employment Applications

There is a growing movement in legislative circles, and it is called “ban the box.” This movement refers to removing the box on employment applications that applicants are asked to check if they have criminal records, and it seeks to provide such applicants who are otherwise qualified with a meaningful opportunity to advance beyond the application phase of the hiring process.

The movement is founded on two primary factual assumptions:

1. Many prospective applicants who might otherwise be hired decline to submit employment applications once they see the criminal history box, believing it to be a waste of their time
2. Employers are more likely to hire such applicants if their criminal records are not revealed until later in the hiring process

As a result of laws stemming from this movement, employers in dozens of cities, counties, and states are now prohibited from initially asking about an applicant's criminal background on job applications. In fact, according to the National Employment Law Project's September 2014 Ban the Box Memorandum, “[n]ationwide, almost 70 cities and counties – including New York City -” have banned the box, as well as “a total of thirteen states representing nearly every region of the country ….”

While the majority of these laws currently apply only to public employers, several states, including Illinois, New York and New Jersey, and a growing number of localities, have enacted “ban the box” laws applicable to private employers as well. Each new law passed reflects the momentum being gained by the “ban the box” movement. Additional traction for possible federal legislation is provided by the EEOC's recent issuance of an enforcement guidance in response to the perception that employers are too quick to disqualify applicants with criminal histories.

Importantly, while limited protections are sometimes provided, “ban the box” legislation does not entirely eliminate the potential for negligent hiring or negligent retention liability. As such, employers are still required to exercise due diligence consistent with applicable law in making hiring and retention decisions. In light of the “ban the box” movement, and because violations of any applicable “ban the box” laws may result in significant fines, penalties, and other damages, employers should monitor legislative activity to identify and prepare for new “ban the box” laws and, where applicable, take steps to ensure that their applications and hiring practices are in compliance.

If you have questions about whether your organization is subject to “ban the box” laws or how such laws affect your organization, please contact your Elarbee Thompson attorney or reply to this email.