A number of states have passed laws that prohibit employers from asking applicants about any criminal history. This strategy is an attempt to help people rebuild their lives after acquiring a criminal history that may adversely affect their lives.
Box Questions
The term “ban the box” refers to a question on an application that asks an applicant to mark “yes” or “no” in response to a question about whether the individual has been convicted of a crime. The concern over questions of this nature is that employers will simply put any applications that have “yes” responses in a reject pile without giving any further consideration for these individuals.
Ban the Box Laws
At the time of publication, 12 states had statewide laws that ban asking such blanket questions. Additional cities and counties may have these laws even when a statewide law is not in place. In addition, state human rights laws may implicate information about this process and using a person’s criminal history against him or her to deny employment opportunities. States that have some type of law on this subject often prohibit employers from having any type of question on their applications that asks about any prior arrests or convictions. Employers that violate the law may be subject to criminal and civil action. Employers must take care to ensure that their company is complying with the relevant rules. Some states have laws that allow a fine of more than $1,000 per each day that the employer does not comply with the relevant law.
Purpose Behind Ban the Box Laws
Such laws have the potential to have a significant impact on applicants. For many individuals, it is a daunting task to find employment after being convicted of a crime and having to label oneself as a criminal. For years, the Equal Employment Opportunity Commission has attempted to complete an overhaul of the employment system’s treatment of individuals with a criminal record. Such laws represent a tremendous victory for this agency and others. They represent ending discrimination against people who have committed a criminal offense, often many years before and one that has no significance on their ability to complete the job required.
For many individuals, not being able to find a job after conviction often results in offenders going back to their old way of life and committing crimes in order to get the money that they need to survive. There is a high rate of recidivism among offenders.
Limitations on These Laws
Although these laws create a tremendous stride in attempting to help individuals move on with their lives after making a mistake that might adversely affect their life after being released, the laws may not fully address the problems. These laws do have limitations. For example, many states define an employer in a very narrow way, such as by stating that the law only applies to companies that have 15 or more employees within a certain geographical scope. This allows smaller employers to still ask such questions even if larger employers are subject to the restraints of the law.
Additionally, most of these laws may prohibit employers from asking such questions on the application but may permit disclosure if the employer brings the individual in for an interview. Employers may be able to seek information about applicants’ criminal history in other contexts, also. For example, state or federal law may permit asking about criminal convictions for certain types of positions. Jobs in law enforcement or that require a separate license from a state licensing board may also not have to comply with the general rules of the ban the box law. In these types of situations, the employer may be required to provide information about specific disqualifying offenses in writing to applicants.
Additionally, if a fidelity bond or other bond is required for the job and the applicant’s criminal record would otherwise prevent him or her from being able to obtain a bond of this nature, the rules usually do not apply. In these types of situations, employers can generally ask about former convictions. Even if the law does apply, the laws may not provide a private right of action and may only permit the state’s department of labor to enforce the law, which may not provide them with the ability to really benefit from the law when there are employers who do not follow the law.
Legal Assistance
Individuals may wish to contact a lawyer to learn about their rights and to learn about options that might be available in their case.