A Fair Chance for Applicants – the Rise of Ban the Box Legislation

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Welcome to the third Blog in our CRAsh Course on Consumer Reporting. In this article we continue to focus on changes implemented since the Great Recession by looking deeper into Ban the Box laws—Fair Hiring practices that put a candidate’s qualifications first by removing questions about criminal history.

A Fair Chance for Applicants – the Rise of Ban the Box Legislation

In our last article  we discussed how the Great Recession drove lawmakers to place limits on the use of credit reports in consumer reporting. This time we look into Ban the Box laws which also gained popularity toward the end of the economic crisis.

Prior to the Great Recession only one state, Hawaii, had a Ban the Box law in place. Since 2009, twenty-eight additional states have enacted some form of statewide Ban the Box policy. In many states without Ban the Box laws, cities and counties have enacted their own regulations.

During the crisis, high rates of unemployment led to increased competition between applicants. As a result, many people admitting to a criminal record on their application were immediately passed over without any consideration for previous work history, or received no thoughtful analysis of how their criminal record affected their ability to perform job duties.

To combat this, Ban the Box regulations were designed to give people with a criminal record a better chance at gaining employment. By forcing employers to wait until an interview has taken place, or a job offer has been made, proponents of these laws believe people with convictions have a better shot at getting a job.

Recently, the effectiveness of these laws has come into question; however, states continue to enact legislation banning employers from asking for conviction history during the application process. In 2017 alone Indiana, Kentucky, Nevada, Pennsylvania and Utah had laws banning the box go into effect.

Employee rights organizations, like the National Employment Law Project (NELP), also feature Ban the Box laws prominently in their platforms. Support for the laws appears alongside topics covered extensively by the media, such as the $15 minimum wage movement, and furthering rights for “gig” workers like Uber drivers.

Remaining Compliant and Best Practices

The patchwork rollout of Ban the Box regulations can make compliance with these laws daunting. 29 states and 150 municipalities have enacted Ban the Box regulations for at least some employees. 9 states have Ban the Box laws in place for all employees. There is currently no federal law affecting private companies. This makes creating nationwide best practices difficult.

It is important for employers to know the law their jurisdiction, or the jurisdictions where they have hiring locations. This list completed by the Society for Human Resource Management (SHRM) has information on all states and municipalities with Ban the Box laws in effect. It can help you determine if your company is in a jurisdiction with a Ban the Box law.

As the laws vary, often times even from city to city, even smaller businesses with only a few offices could have different requirements from one location to the next. To simplify their processes, many companies like Walmart, Target and Home Depot, have enacted companywide Ban the Box policies. You may wish to go this route as well.

Estimates show that nearly two-thirds of employees live in an area with a Ban the Box policy in place, so it’s likely you’re already working in a jurisdiction with Ban the Box. To ensure compliance, your application and hiring processes should be reviewed by a legal or HR professional. It’s also a good idea to periodically review your policies against current law, and make updates when needed.

If you are not in a jurisdiction with Ban the Box laws in place, best practice is to remain updated on potential regulations that could go into effect. Subscribing to Human Resource oriented blogs and Google Alerts related to Ban the Box can be a simple, inexpensive way to stay informed.

Contracting with a background screening company committed to compliance—like A-Check Global—can also help you remain compliant with these laws. As many background screening companies host the application or applicant consent process for their clients they are also often responsible for complying with Ban the Box.

For more information about this topic, or to discuss information on Consumer Reporting, feel free to contact us at connect@acheckglobal.com.

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