Many states and local jurisdictions have enacted laws that restrict employers from asking an applicant about their criminal background on application forms. Some go even further, restricting these types of questions until after the employer makes a conditional job offer and/or requiring employers to take certain steps before considering an individual’s criminal history. These restrictions are often referred to as "ban the box" or “fair chance” laws.
The following are answers to frequently asked questions about criminal background checks and ban the box and fair chance laws.
Q: What is ban the box and the fair chance law?
A: Ban the box and fair chance are often used interchangeably. They are terms given to legislation that regulates when and how an employer can inquire about an applicant's criminal history. Ban the box refers to the "check box" that many employers have on their standard employment application that asks applicants whether they have ever been convicted of a crime.
Some laws restrict these types of questions until after the employer makes a conditional job offer, and even dictate what steps the employer must take once they become aware that an applicant has a past criminal conviction.
The purpose of such laws is to reduce undue barriers to employment for individuals with criminal histories by allowing applicants to demonstrate their qualifications for the job before being asked about their criminal history.
Q: What states currently have ban the box/fair chance laws?
A: Currently, California, Connecticut, Colorado, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington have ban the box/fair chance laws covering private employers.
For example, since 2018, California has prohibited employers with five or more employees from asking a job candidate about their conviction history before making a job offer, among other requirements. After offering a job, California employers are allowed to conduct a criminal history check, but the law requires an individualized assessment about the applicant’s conviction history. Under state law, that means that an employer can’t take back the job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job sought. If the employer decides to take back the job offer based on the candidate’s criminal history, they must tell them so in writing, provide a copy of any conviction history report they relied on, and give the individual at least five business days to respond.
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Note:The District of Columbia and more than 20 local jurisdictions have their own ban the box/fair chance laws. Keep in mind many states prohibit employers from taking adverse action against employees for, and/or making inquiries about, arrests or arrest records.In addition, the Equal Employment Opportunity Commission (EEOC) has stated that arrests aren’t proof of criminal conduct and taking an adverse employment action against an employee because of an arrest record may result in a violation of antidiscrimination laws.
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Q: In a job posting, if I’m subject to a ban the box/fair chance law can I state that a "background check" is required for a position?
A: Some of the laws expressly prohibit employers from including such language in job advertisements or job postings. In other jurisdictions with ban the box/fair chance laws, employees may argue such phrases still violate the law, so employers may want to consult legal counsel.
Q: Are there exceptions to ban the box/fair chance laws?
A: Each law is different, but many include exceptions, such as when federal or state law requires the employer to exclude applicants with certain convictions. Check your state or local ban the box law for specifics.
Q: Can I ask applicants if they have been convicted of a crime? If so, when can I ask?
A: In states and local jurisdictions with ban the box/fair chance laws, employers must at least delay asking these types of questions until later on in the pre-employment process. These laws differ on when exactly such inquiries may be made. For instance, Minnesota's law generally requires employers to wait until a candidate has been selected for an interview before asking about criminal convictions. In Hawaii and the District of Columbia, employers must wait until after they have made a conditional job offer.
As mentioned above, some laws go even further by requiring employers to take certain steps before they use criminal history to make employment decisions. For example, Illinois requires employers to determine: 1) whether there is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or 2) whether the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In doing so, the employer must consider the following mitigating factors:
- The length of time since the conviction;
- The number of convictions that appear on the conviction record;
- The nature and severity of the conviction and its relationship to the safety and security of others;
- The facts or circumstances surrounding the conviction;
- The age of the employee at the time of the conviction; and
- Evidence of rehabilitation efforts.
Q: What is a conditional job offer?
A: Generally, a conditional job offer is contingent on the satisfactory completion of certain steps, such as a background check, reference check, drug test, and proof of work eligibility. Any contingencies that could lead to the withdrawal of the offer should be clearly indicated in the written job offer.
Q: Are there restrictions on the types of criminal information that can be investigated?
A: Yes. Even in states without ban the box/fair chance laws, state and/or local law may limit the scope of criminal history inquiries. For instance, some laws limit inquiries to convictions that occurred within the past few years or prohibit employers from asking about sealed or expunged records. Additionally, some states and local jurisdictions prohibit employers from asking about arrests and certain types of convictions.
For example, under Pennsylvania law, an employer may generally only consider felony convictions or job-related misdemeanors in making hiring decisions. The state also prohibits employers from using criminal history record information that has been expunged or granted limited access, unless required by federal law.
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Note:The federal Fair Credit Reporting Act (FCRA), and similar state laws, have specific guidelines for conducting background checks, including requiring that employers provide written notification to, and obtain authorization from, any individual subject to background investigations. The FCRA also requires employers to follow certain steps when taking adverse action against an individual (e.g., failing to hire) based on the results of the investigation.
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Q: What if my state doesn't have a ban the box/fair chance law? Should I still remove criminal history questions from my application form?
A: While there is no federal law specifically prohibiting employers from asking applicants if they've ever been convicted of a crime, the Equal Employment Opportunity Commission (EEOC) recommends employers avoid asking for this information on an application form. If and when employers do ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity.
Q: Under federal law, what are my responsibilities once I learn that an applicant has been convicted of a crime?
A: EEOC guidance states an employer cannot simply disregard any applicant who has been convicted of a crime. Instead, employers should show how the specific criminal conduct, and its dangers, relates to the risks inherent in the duties of a particular position.
The EEOC identified two ways employers can demonstrate that an exclusion based on a criminal conviction is job related and consistent with business necessity:
- The employer validates the criminal conduct screen per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
- The employer: (a) develops a targeted screening considering the nature and gravity of the offense, the time elapsed since the conviction or completion of the sentence, and the nature of the job; and (b) conducts an "individualized assessment" for people excluded by the screening to determine whether the policy as applied is job related and consistent with business necessity.
Consider these guidelines and consult legal counsel as needed.
Q: What does an "individualized assessment" entail?
A: The EEOC guidance recommends that the individualized assessment consist of:
- Notice to the individual that they have been screened out because of a criminal conviction;
- An opportunity for the individual to demonstrate that the exclusion should not be applied due to their particular circumstances; and
- Consideration of whether the additional information provided by the individual warrants an exception to the exclusion.
Employers should consider a variety of factors to determine whether exclusion based on an individual's criminal record should be applied, including:
- The facts or circumstances surrounding the offense;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison (the EEOC notes that recidivism rates tend to decline as an ex-offender's age increases);
- Evidence that the individual performed the same type of work, post-conviction, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense;
- Rehabilitation efforts (such as education or training);
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state or local bonding program.
Many of the ban the box/fair chance laws are based on this guidance but may have different requirements.
Q: Are there any other types of information that may be off limits or restricted on application forms or in background checks?
A: In many states and local jurisdictions, yes. For example, some states have enacted laws restricting employer access to applicants' credit history. And, several states and local jurisdictions have enacted laws that include a provision prohibiting employers from asking about salary history.
Conclusion
Criminal history inquiries must be performed in accordance with federal, state and local laws. Make sure you understand the rules that apply to your business before asking applicants about criminal history.