Background checks help employers make informed decisions. But many states and cities have laws that control when and how employers can ask about or use criminal history. These are often called “ban-the-box” or fair chance hiring laws.
What is ban-the-box?
Ban-the-box refers to removing the checkbox on job applications that asks whether an applicant has a criminal record. The idea is to evaluate applicants on their qualifications first, before criminal history is considered.
How these laws vary
Laws differ widely by location. They may:
- Apply only to public employers, or to private employers too
- Prohibit criminal history questions on applications
- Delay background checks until after a conditional offer
- Require an individualized assessment before rejecting an applicant
- Require specific notices and waiting periods
- Limit consideration of certain records, such as arrests without convictions or sealed records
Some cities have stricter rules than their states.
EEOC guidance
The Equal Employment Opportunity Commission has issued guidance on using criminal records in employment. It encourages employers to consider:
- The nature and gravity of the offense
- The time that has passed since the offense or completion of the sentence
- The nature of the job
Blanket policies that exclude everyone with any record may create discrimination risk.
Best practices for employers
- Know the laws in every location where you hire.
- Review your application forms for criminal history questions.
- Conduct background checks at the right point in the hiring process.
- Use individualized assessments.
- Follow FCRA pre-adverse and adverse action requirements.
- Document your decision-making process.
Industry exceptions
Some positions, such as those working with children or vulnerable adults, or positions subject to federal or state screening requirements, may have exceptions. Know which requirements apply to your roles.
Elite Services helps you navigate
Elite Services Workplace Screening tracks regulatory changes across jurisdictions and provides background searches designed to support compliant hiring. This article is general information; consult legal counsel for specific advice.
Ready to protect your workplace? Elite Services Workplace Screening provides nationwide drug testing, DOT compliance, background searches, MVRs, and E-Verify. Call 888-738-9297 or contact us online to get started.
This article is for general information only and is not legal advice. Laws and regulations change; consult qualified counsel about your specific situation.