Ban the Box: What employers need to know

Aloha! Hawaii is often remembered as a perfect holiday getaway for the famous Lei flowers. Well, it is also an interesting fact that they have been distinct from a legislative standpoint. Did you know? Hawaii was the first state to ban plastic bags. When we start exploring more, some of the other similar facts are that it is one of the four states in the U.S. that has banned the use of billboards for advertising. Woah! One more here – There are no snakes in Hawaii and bringing one into the land is an offense. Well, when it comes to employment, they were the early campaigners for fair chances and equality in the workplace!

The campaign ‘Ban the Box’ began in Hawaii during the late 1990s making it the first state to implement the Ban the Box law in 1998. Eventually, this became popular in Minnesota and gained strength among the other U.S. states.

So, what is Ban the Box?

It is a movement that prevents the employer from seeking information about an applicant’s criminal history and restricts access to criminal records until a certain stage of the application process. This provides a fair chance for applicants with a record to compete for jobs without their criminal past being a barrier. As the name suggests, the campaign ‘Ban the Box’ works towards removing the checkbox that inquires about an applicant’s criminal history from the employment application forms – information from which would be used to perform background screening.

Why banning the box makes sense?

The principal objective of this movement Ban the Box (BTB) is for employers to consider the qualification, quality, and skills of the applicants without the stigma of criminal history. Most applicants looking for a job, often lose the opportunity even before attending an interview because of having held a criminal record. The conviction history keeps them from applying to most jobs, implying there is no second chance.

A study indicates that ~70 million people in the U.S.A have a conviction record and almost 600,000 people are left behind from incarceration. Further, this lack of employment can lead to high recidivism rates, and this may instigate them to commit a crime again.

What does ‘the box’ do?

– The checkbox from a typical employment application form doesn’t provide an opportunity for the candidate to explain past offenses.

– It generates major discrimination in the elementary screening stage and curbs the candidate’s chance even before getting past the initial stages.

– Employers may miss out on well-qualified applicants.

– The severity of the crime remains unknown, and the relevancy to the job may be diminutive.

A deeper look

The Equal Employment Opportunity Commission (EEOC ) took a stand and set up some ground rules and guidelines for the law to be fair. With respect to the Ban the Box law, they persuade organizations to consider the following:

– The nature and gravity of the applicant’s original offense or conduct.

– The time that has passed since the offense, conduct, and/or completion of the sentence; and

– The nature of the job now held or sought by the ex-offender.

From an employment screening standpoint, there is a multitude of laws including FCRA that work towards protecting employee data and ensuring a fair chance for every employee. But the Ban the Box law has specifically gained much attention and support across the United States. Further, Business in the Community (BITC), a UK-based charity organization, launched this US-specific law as a new campaign in the UK in 2013, with the motive to use the conviction information of candidates fairly. The effect will reopen opportunities for around 11 million people in the United Kingdom who have a criminal record and help them get past the initial shift that plays a crucial role in their careers.

The positive side

A majority of studies state that one-third of Americans who are an employable age have a criminal background. They also state that most unemployed people in the age group 25 to 54 have a criminal record. They eventually tend to have lesser motivation and a limited skill set. Most employers prefer candidates to disclose their criminal history in the initial application process.

The snag occurs when employers fail to distinguish criminal records thoroughly, and this is where the fair chance policy makes sense. Moreover, candidates claim that there is a significant difference between being ‘arrested’ and being ‘convicted’ and application forms having a single yes/no checkbox inquiring about the candidate’s criminal history does not do justice. This insulates the candidate’s opportunity to explain his stand and the category under which his offense has been deemed a crime.

To date, there is no federal Ban the Box statute; the law in existence is only state-specific. From the level of applying to only government employees, the law is now extended to apply to private employees also.

The unfriendly consequences

Is it all about taking the asymmetric advantage? On the flip side, this law has its own concerns. The question that arises often is – are these laws going to impact your company policy? The answer would be that it completely depends on where your business is based. The laws regarding access to criminal information vary between different states in the U.S. Some states have lesser stringent policies whereas others may prevent you from conducting criminal background checks until a specific stage in the interview process.

Secondly, the background check also takes into account the type of offense committed, the impact of the crime on the environment, the time period since the crime was committed, and if it is going to be a potential threat to the job itself. For instance, a person who has committed a crime by robbing a bank wouldn’t be best considered for a bank job. A person previously convicted of drunken driving may not be the best fit for the role of a driver. They might turn out to be potential threats to an organization.

Is this law a setback?

A Gartner report quotes Bruce Schneier, an American cryptographer’s PoV –

“Yes, the policy may help some people locked out of certain jobs because of past felony convictions. However, other, less visible economic effects must be considered. First, the average wage offered would likely decrease among employers who consider criminal background an important consideration. Also, the number of jobs in the affected market would likely decrease. In economic terms, what happens is that the demand curve for labor shifts left, either due to the cost associated with acquiring information to replace the candidate disclosure or the higher risk of hiring workers with criminal backgrounds”.

While a handful of US employers are against banning the box, most of them strive to make this law federal. At present, in the U.S., 35 states, the District of Columbia, and around 150 cities support the law. But experts feel the nuanced effects must be considered before the actual implementation of this law.

Employers need to understand that the Ban the Box law does not completely refrain them from doing a criminal background check. Rather, the law refrains them from performing a check only until a certain point of the interview process, after which a candidate’s criminal background can be analyzed.

While getting rid of the box is a bit tricky, it is evident that this law is here to stay. Dynamic screening service providers like ScreenXchange are assisting organizations to carry out fair verification that comply with state-specific laws, including the Ban the Box. Such providers have a meticulous focus on compliance and can help bring the right talent into organizations in a legitimate manner.

To learn more about how organizations can perform pre-employment screening that complies with state-specific regulatory policies, click here. Our screening experts will be happy to assist you.

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