“Have you ever been convicted of a crime? Check yes or no.”
Thirty-seven states across the US comply with Ban the Box (BTB) law policies. Each state retains particular nuances regarding its approach to the laws. For example, a person could move from a BTB state like Georgia and end up in a non-BTB state like Florida.
BTB laws affect employers, employees, their families, and the broader community. Ban the box law stop employers from inquiring about an applicant’s criminal record until very late in the job process. The potential employee has a better chance of receiving employment because they are not immediately rejected based on perception.
BTB law is a means to reduce unemployment among those with criminal records. The effort to reduce unemployment is due to the correlation between ex-offenders re-offending and lack of work. The laws remove some of the employer's immediate power and replace it with a better chance of employment.
BTB law disproportionately affects African American and Latino men as a byproduct of incarceration rates. For example, in the case of Hawaii, BTB law is uniquely successful at (1) reducing re-offending acts and (2) improving employment opportunities. In this way, BTB law assists 30% of adults with criminal records in finding and keeping work.
Note: While banning the box law is highly beneficial, the policies have unintended consequences. In 2016 it was suspected that “withholding information about criminal records could risk encouraging statistical discrimination.” Said another way, not showing criminal record information could lead to discrimination based on assumptions about an applicant’s race.
2020 proved this is the case for a specific subsection of adults with criminal records. Investigators found that “BTB policies decrease the probability of employment” by 5.1% of young, low-skilled black men.
Overall, the ban the box law improves employment opportunities and outcomes for many people; but it does not improve opportunities for all of the next generation of minorities.
What is this Law?
“Ban the Box” law refers to a specific type of question that is on some job applications. That question typically asks: “have you ever been convicted of a crime?” This question comes with two boxes, yes or no—and an explanation box.
Ban the box refers to the practice of completely absolving this question and the answer from the application. The question is often moved to later in the hiring process. This gives the applicant a better shot at employment. Additionally, BTB laws work with other state and federal laws to assist both the employer and the employee during the hiring process.
Who Must Comply with It?
Thirty-seven states have adopted statewide laws or policies concerning government employment. Fifteen states have specific laws guarding an individual’s conviction history against appearing on job application forms for private employers.
The fifteen states that have adopted BTB laws for private and government work include:
- New Jersey
- New Mexico
- Rhode Island
Additionally, over 150 cities are committed to hiring within the BTB policies. As a result, almost four-fifths of people in the United States live in a BTB jurisdiction.
Penalties when Broken
BTB laws are a 'negative' type of law. This means they prohibit a party from doing something—in contrast with a 'positive' law, which enables a party. In the case of BTB law, the employer cannot put a question regarding an applicant's history of charges on an application. Instead of 'the box,' employers are meant to wait until later in the hiring process. Then, they can conduct a background check, public records check, or other pre-employment check criteria.
There are two distinct problems with BTB violation punishments:
- Since individual states enact them, there is no specific punishment for a BTB violation. In the case of California, violators can earn up to $25,000 of fines in damages and penalties.
- The law does not prohibit an employer from performing a background check using public records. The law only prohibits the existence of the “yes or no” boxes on a job application, particularly when it will impact an applicant’s chance of employment.
The two above aspects, that there is no distinct punishment and that the law does not entirely stop a background check—may be cause for concern. Potential applicants may fall into the idea that: because the BTB laws cannot be punished in every instance; or because the BTB doesn’t halt the entire background check, BTB doesn’t help them. This is not true. BTB laws are used in conjunction with other state and federal laws to help the applicant.
For example, the Federal Trade Committee requires an employer to take the following steps upon hiring decisions:
- Before getting a background check, the employer must notify the applicant that the check is being done. They should also get written authorization to do that check. Get these written to protect both the employer and the applicant.
- If the background check returns with details that may cause an employer not to hire a person, the employer must provide them with a copy of the report. Sometimes, this information can be incorrect, so the employer must give the applicant time to review the report and respond. They may challenge the results.
- Realistically, it is up to the employer to decide who to hire regarding background reports. However, if an employer chooses not to hire based on the applicant’s background—the employer must provide the applicant with a notice stating the reason.
The Process is Changing, Albeit Slowly
Ban the box laws are policies that stop an employer from immediately rejecting an applicant for work based on a criminal record. Instead, employers ask for background checks in the late stages of the hiring process. However, some employers may skirt the law and conduct inspections with public records.
Thirty-seven states have BTB laws for government work; 15 also have BTB laws for private work. These laws have helped 30% of all adults with a criminal record find and keep employment.
Hopefully, the coming generations of lawmakers can help increase employment legislature’s future benefactors.