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Criminal History Inquiries in Ban the Box Jurisdictions

Question: We operate our business in a jurisdiction that has enacted Ban the Box legislation. Can we still ask the criminal history question that we were required to remove from our employment application?

Response & Analysis:

Yes, other than in very limited cases.1 While Ban the Box legislation is generally aimed at removing the criminal history question from the employment application, the question itself is still a necessary tool in the recruitment process and should be asked as it may reveal valuable, actionable information.

“Ban the Box” is named for the box that appears on many employment applications asking an applicant to check the box to indicate that he or she has a criminal record. The idea behind the legislation is that deferring the disclosure of past transgressions until the interview stage (or later) allows the information to be weighed against an applicant’s qualifications.

In recent years, numerous jurisdictions have enacted Ban the Box legislation, making it illegal to ask the criminal history question on an employment application. The result of removing such question from an organization’s employment application, however, has been that often the inquiry is then forgotten and the question is never asked or answered. But the criminal history inquiry is still a necessary part of the hiring process and should be retained.

The Ban the Box legislation varies in procedure and substance, state-by-state, with some states permitting the question after the initial application, others during the interview and others only after a conditional offer of employment has been extended. Given the Ban the Box legislation mandating changes to your employment application, now is a good time to revisit your recruiting process to ensure that you not only comply with the law, but that you also have a process in place whereby you do not miss the opportunity to ask this important question.

It is vital to know your state’s limitations on what can be asked and when, but if adopting a general rule, waiting until a conditional offer has been extended is an appropriate time to reincorporate the criminal history inquiry into the recruiting process. After a conditional offer is made, an authorization to conduct a background check should be obtained, and separately, the criminal history question should be asked and answered in a writing signed by the applicant.

The criminal history question can provide a legitimate justification for rescinding an offer. If an applicant responds “no” to the criminal history question, and a background check reveals a criminal past, a conditional offer can be justifiably rescinded based upon the applicant lying to the question rather than based on the criminal history itself. Given the current climate with respect to the use of criminal records and the EEOC’s 2012 Enforcement Guidance, which has complicated the use of criminal records to justify adverse employment decisions, this an important distinction and an important tool for an employer. By failing to ask the criminal history question once removed from the employment application, an organization misses a significant important opportunity to reveal valuable, actionable information.

1 In July 2013, Richmond, CA enacted the most stringent “Ban the Box” legislation, prohibiting employers with 10 or more fulltime employees that do business with the city from making any inquiry into an applicant’s criminal history at any time.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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