Over two-thirds of the U.S. population, or over 226 million people, now live in a jurisdiction that has signed into law the ban-the-box policy. (National Employment Law Project). This number is only expected to rise, as more and more states, cities, and counties join in on the fair chance policy.
What is ban-the-box?
Simply explained, ban-the-box is an initiative aimed at removing the criminal record checkbox from employer applications. It gained national attention in November 2015, when President Obama endorsed ban-the-box rules to “promote rehabilitation and reintegration for the formerly incarcerated”. Now, over 150 jurisdictions are supporting the fair chance employment policy.
How did this all start?
The term Ban the Box was originally coined by a grassroots organization made up of formerly incarcerated individuals and their families, frustrated at what they felt was unfair discrimination based on their criminal past – regardless of the skills and qualifications they possessed. Their purpose was to pressure employers to remove the criminal record checkbox from hiring applications. Considering that the U.S. holds the highest incarceration rate in the world, (over 70 million U.S adults currently are or have been convicted of a crime), fair employment laws are reasonable in that they:
- allow ex-offenders the opportunity to start over, instead of continuing to pay for their crime after they’ve finished their sentence, and
- keep the community safe (following the logic that the more difficult it is for ex-offenders to find a job, the more likely they are to re-offend).
And the opposing argument?
The lines continue to get blurred by different jurisdictions adopting few, some, all, or more (than required) of the ban-the-box initiative, resulting in a patchwork of laws and unnecessary legal requirements that vary not only from state to state, but within individual states (Sterling Talent Solutions). This not only creates compliancy confusion among employers, but results in over a thousand dollars in fines for each individual offense. Opponents of ban-the-box also argue that it creates a waste of resources in interviewing (and other pieces of the the application process) since employers feel forced to spend time on candidates that may not even qualify for the position in the first place. They believe ultimately that they should be able to access their own hiring needs.
Our advice?
With Tenstreet, we solve the problem by providing a criminal record questionnaire to send electronically to the applicant after he/she has completed the application, or at whichever piece of the hiring process you and your attorneys deem appropriate. Ask your attorney what’s right for you. Based on where you operate, they will be the most familiar with the changing nature of the ban-the-box rules and regulations in your area.
We recommend that companies take a hard look at the risk/benefits of asking criminal record questions, even for jurisdictions not covered by a ban the box ordinance. Ultimately, it is up to the employer to decide its risk tolerance.
