The term “Ban The Box” refers literally to the “box” on employment application forms that reference criminal background checks. On January 15, 2015 NELP updated from its 2013 report its latest figures on states, counties, and municipalities that have enacted laws banning such questions, in most cases, prior to a hiring decision. The full text of the NELP report is available for further reading. According to the report, as of January 2015, nearly 100 cities and counties and 13 states have enacted such laws. The report is 66 pages in all, and unfortunately, there is no simple overall principle to follow. However, the report does contain tables at the end that indicate whether specific states, counties, and municipalities differ on such variables as types of employers covered (private & public), whether background checks are prohibited for only certain positions, whether a background check can be made only after a condition job offer, whether EEOC criteria are followed, and whether or how notice of denial of work is to be made.
It is apparent from the NELP report that the “Ban The Box” movement is gaining momentum. Therefore, employers need to read the latest report to determine if and how they are affected, and even if they are (for now) unaffected. At a minimum, it is recommended that rules that automatically exclude individuals with felony records be abandoned in favor of individual considerations of the nature of the conviction, time since the conviction, and nexus of the crime to the job(s) in question. Prescriptions for doing so are contained in EEOC guidance specifying how criminal background information is to be treated.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology