“Ban the Box” laws requiring employers to remove criminal history questions from employment applications have been around since 1998 and have gained momentous ground in the 20-plus years since first enacted in Hawaii. Today, 14 states have statewide Ban the Box laws that apply to private employers, while over 30 states have statewide laws that apply only to public employers.
Additionally, over 150 cities in the U.S. have enacted Ban the Box laws applicable to only those cities. Although becoming more widespread, Ban the Box laws are by no means universal, and there are several nuances employers need to be aware of.
For example, it is important to note that certain states, like Connecticut, have Ban the Box laws that merely prohibit criminal history questions from being asked on an initial application. See Conn. Gen. Stat. § 31-5i(b-d). And yet other states, like Maryland, state that criminal history questions cannot be asked until the first in-person interview. See Criminal Record Screening Practices Act – SB 839. And still other states, like Massachusetts, prohibit any inquiry at any time into an applicant’s criminal history regarding arrests that did not lead to a conviction; first-time convictions for offenses like drunkenness and simple assault; and misdemeanor convictions that are at least three years old. See Massachusetts Fair Employment Practices Act, Mass. Gen. Laws Ann. ch. 151B, § 4 (9-9½).
What is more is that while some states, like Missouri, do not have statewide Ban the Box laws, certain cities within Missouri, like Kansas City and St. Louis, have robust ordinances regarding Ban the Box. See St. Louis Ordinance No. 71074 and Kansas City Ordinance No. 180034. Further, some states, like New York, have Ban the Box laws on the books but cities within New York, like Rochester and New York City, have stricter Ban the Box rules than the state does. See Human Rights Law, §295-16 (NY Correction Law 23A-§732); New York City Fair Chance Act (Local Law No. 63); and Rochester Ordinance 2014-155.
Recently, there have been some notable developments and updates in Ban the Box legislation throughout the country.
On December 17, 2019, Congress passed the Fair Chance to Compete for Jobs Act of 2019, which prohibits federal agencies and federal contractors from requesting criminal background information from job applicants prior to extending an offer. In addition, on January 20, 2021, Philadelphia amended its Fair Criminal Record Screening Standards via Bill 200479. These new amendments prohibit employers from asking not only applicants about their criminal history but also current employees, independent contractors and gig economy workers. Employers cannot inquire into a current employee’s criminal history at any point during the employment process, which includes when an employer is considering an employee’s promotion, raise or termination. This law went into effect on April 1, 2021.
Further, in January 2021, New York City updated its existing Ban the Box law to further limit the criminal history inquiry by delaying its timing until after a conditional offer of employment has been made. This law goes into effect on July 28, 2021. See New York City Fair Chance Act (Local Law No. 63).
Regardless which side you fall on regarding Ban the Box, the current trend seems to indicate that more states and cities will likely update or enact Ban the Box laws. Protection from inquiry into one’s criminal history is here to stay.