Ban the Box: 20+ Years of Fair Chance Legislation

It all began more than 20 years ago, when Hawaii became the first state to officially pass Ban the Box legislation—law designed to provide those with criminal history a better chance of earning employment without having their misdeeds prevent access to job opportunities.

From its humble beginning as a grassroots, civil rights movement borne of All of Us or None, evolving legislation to provide applicants with fair chance quickly gained momentum nationwide. As law is generally applied today, Ban the Box prohibits certain employers from making criminal history inquiries until a later point during the application and employment process. Ban the Box laws typically:

  • Restricts employer inquiries prior to an applicant’s job interview or even a conditional offer of employment
  • Sets guidelines for how far in the past criminal history may be requested
  • Prevents job position ads from excluding applicants with criminal history

Legislation Today

20+ years later, this growing legal trend to lower barriers faced by job applicants with criminal records has progressed past the removal of an application’s “box,” to now include additional procedures designed to force employers to look past an applicant’s criminal history when making a hiring decision.  Additional requirements are unique to jurisdictional law, but most share a common theme:

  • Remove the check box from the application
  • Wait until further along in the hiring process to ask an applicant if they have a criminal history (this includes requesting a background check), for example, post interview or post offer
  • When making an adverse decision based on an applicant’s past criminal record, provide the applicant with specific details on what part of their background check caused the adverse decision, the business necessity for the decision, and in some cases, your company’s policy regarding the hiring of applicants with a criminal history

37 states, the District of Columbia, and over 150 cities and counties have adopted Ban the Box

With representation across nearly every portion of the country, 37 states now include guidelines for public-sector employment. These states include:

Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

Further, extending fair chance law beyond government employment to private-sector employment helps ensure applicants with criminal records have a fair chance at employment across the majority of jobs. To date, fifteen states and 22 cities and counties have passed legislation to remove criminal history questions from job applications for private employers. States include:

California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Putting this all into perspective, it means that more than 267 million people—that’s more than four-fifths of the U.S. population—now lives in a jurisdiction with some form of fair chance law or policy.

Ban the Box and Your Employment Background Screening Program

Now, keep in mind that this evolving legislation regarding fair chance hiring does not prohibit your organization from performing criminal checks as part of your employment risk mitigation. It simply means that criminal history inquiries must be delayed until further in the hiring workflow. And, in addition to removing the “box” from employment applications, employers may be required to ask about criminal history either after an interview is completed, or after a conditional offer has been made.

As an HR professional, there’s a lot to consider (or continue to consider) as you navigate applicable Ban the Box legislation:

  • Audit your workflow. That will mean meeting regularly with your legal counsel to ensure your employment applications, related forms, and your overall hiring program is compliant.
  • While you’re at it, keep your legal counsel on speed-dial to ensure you’re updated with changes in legislation and fair chance policy. If you live in a state that isn’t impacted by Ban the Box law, it may not always be the case.
  • Take a look at job roles in your organization to further define where certain criminal history would pose increased risk among certain positions or your workplace as a whole. Likewise, there may be minimal risk opportunity within areas of your organization to extend employment to ex-offenders. This may be a good time to audit position definitions.
  • And finally, make sure you’re partnered with an employment background screening company (like A-Check Global) with updated compliance resources to help you navigate fair chance legislation and assist you in extending equal hiring practices to your applicants.

Please keep in mind that this Blog article is general in nature, and not all-inclusive in listing jurisdictions with Ban the Box law. Here is a complete listing of U.S. Cities, Counties, and States Adopting Fair-Chance Policies.

Please also note that A-Check provides a monthly compliance newsletter to keep you in the know with Ban the Box and other legislation updates, and we’d welcome the opportunity to add you to the mailing list. Simply email us at marketing@acheckglobal.com and let us know you’d like our compliance updates.

And, as always, we welcome your questions about this or any aspect of your background screening program. Please feel free to contact us.


PBSA Testifies in Michigan Hearing on Date of Birth Redaction

A-Check Global continues to focus on and participate in continued efforts surrounding new Michigan legislation removing the date of birth (DOB) from public facing court records. As previously shared, this new rule is scheduled to go into effect by January 1, 2022. However, some courts have already been implementing DOB redactions as earlier adopters of the rule.

The Professional Background Screening Association (PBSA)—an important, non-profit organization established to represent the interest of companies offering employment background screening services—has been actively advocating to retain the DOB within Michigan court records as a critical identifier in accurate, comprehensive background screening.

On Wednesday, October 13, the Michigan House Judiciary Committee held a hearing regarding Michigan House Bill 5368 (Requirement for date of birth to be included in publicly accessible “personal identifying information” in court proceedings.) In this hearing, PBSA past chair Bon Idziak testified on behalf of PBSA as part of persistent efforts to ensure access to date of birth information in public records in Michigan. Others testifying included Lucia Bone on behalf of the Sue Weaver CAUSE, Jay Harris on behalf of CDIA, as well as several other proponents of the legislation.

PBSA will continue to pursue all available options to address current and upcoming redaction in both Michigan and California. A-Check will continue to provide information and requests for assistance as it becomes available. As you might imagine, these efforts are significant, and will require continued engagement.

Please also note that A-Check has not changed our standard processes for criminal record searches. Prior to presenting permissible results to our clients, we still require 3 identifiers to authenticate the identity of search information. In spite of research challenges we face in Michigan and counties within California, we will continue to serve our valued clients to the best of our ability.

We’re here to help answer any questions you may have.


In the Know: October 2021 Compliance Updates

Consumer Reporting

District Court’s FCRA Decision:
Employer Guidance for “Clear and Conspicuous” Disclosure
As you know, before an employer pulls a consumer report for employment background screening purposes, the FCRA requires that the employer provides the applicant with a “clear and conspicuous” disclosure that the employer may obtain this report.

Furthermore, the disclosure document must consist solely of the disclosure. A recent Ninth Circuit Court ruling detailed that even with good will and intention, this disclosure must not include extraneous information—even if the employer believes that information is related to the disclosure.

The court did hold that disclosure may also include some concise explanation of what a consumer report is, how it will be obtained, and the type of employment purposes for which it may be used. However, additional information regarding consumer rights under federal and state law—additional information added in this instance by the employer to the disclosure—was extraneous. This case illustrates just how important strict compliance with the FCRA’s standalone requirement really is.

California and Michigan Date of Birth Redaction
As we’ve mentioned, efforts in Michigan and a number of California counties to redact date of birth from court cases reported via public indexes make timely employment background screening extremely challenging.

For California: 
A California Court of Appeal decision has unfortunately resulted in CA Courts restricting or limiting in-person research requests, and limiting PII provided for potential record matches. These efforts are being implemented with little notice, and as you can imagine, are having a profound impact in the ability for consumer reporting agencies to efficiently report criminal history.

For Michigan: 
Court rules in Michigan that limit PII provided to researchers are in effect. However, implementation has been delayed until January 2022.

A-Check Global, along with other CRAs, are very involved in working toward any and all potential opportunities for resolution. That said, answers may not be available in the near future. The Professional Background Screening Association (PBSA) Government Relations Date-of-Birth Redaction Task Force is also focused on resolution efforts, and they invite employers to learn about how to support the path toward solutions.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 Compliance

Ongoing Extension: Form I-9 Requirements in response to COVID-19

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.

Substance Abuse Testing

Rhode Island
Could Rhode Island be next? Lawmakers say they are very close to reaching a deal on a marijuana legalization bill that could be taken up during a special session this fall. A-Check will keep an eye out and let you know.

The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies. This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team. 

Criminal History Reporting

Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” With this new Legislation, Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to ask job applicants about their criminal history. While there are exceptions, new law prohibits employers from requesting criminal history information on applications or stating that a person with a criminal history may not apply or will not be considered for a position. Employers are also prohibited from stating—prior to determining a person’s qualifications—that candidates with criminal history will not be considered. This new law goes into effect on October 18, 2021, and employers who do not comply with the new law are subject to a penalty of $100-$500 per violation.

Data Privacy

California, Colorado, and Virginia have passed comprehensive consumer data privacy laws. Additional legislation was recently introduced that, if passed, would create the Ohio Personal Privacy Act. By introducing the Act, Ohio follows the growing trend toward stronger state privacy laws related to consumer rights. The Act primarily applies to businesses in Ohio or businesses that collect data about consumers in Ohio, and among other guidelines, dictates that businesses must provide a “reasonably accessible, clear, and conspicuously posted privacy policy” to inform consumers about the data collected.

Questions? We’re here to help!