What are the Business Implications for 'Ban the Box' Policies?

August 29, 2016 Zuman

According to figures from the National Employment Law Project, an estimated 70 million Americans have a criminal record. For the vast majority of these individuals, finding employment can be difficult. Among unemployed men in the U.S., 34 percent were without jobs due to their criminal records, per a 2015 poll from the Kaiser Family Foundation. But while some of the stigma does remain, changes are being made to help this sizable population.

As NELP explained, employers in 24 states and 100 cities nationwide have adopted "ban the box" hiring policies, in which managers consider qualifications before background checks are performed. It's an important new approach that has plenty of ramifications for businesses.

How does ban the box work?
NELP added that the use of ban the box policies makes three essential changes to current hiring practices. One, it delays inquiries into a person's conviction history until much later in the hiring process. The logic being that hiring managers must first consider the person's skills and qualifications before having access to conviction records that might otherwise influence their decision. Ban the box policies also integrate the arrest and conviction record guidelines as outlined by the U.S. Equal Employment Opportunity Commission. This helps contextualize a manager's decision and makes them consider elements like a person's rehabilitation efforts, as well as if the conviction is related to the job. Finally, these new policies emphasize more accurate background checks that protect a person's privacy during the hiring process.

How does ban the box impact hiring and compliance?
As mentioned above, the ban the box policies have only been enacted in certain states and are not federally mandated. However, as The Atlantic reported in spring 2016, President Barack Obama has said that he wants to implement these policies nationwide, hoping to apply the ban the box approach to even government jobs. For now, NELP has a full list of states and cities that have enacted ban the box, which includes Massachusetts, Colorado, Louisiana, Minnesota, New York, Nebraska, Georgia, Ohio, Oregon, Rhode Island and Wisconsin. Another nine states - including Hawaii, Illinois and New Jersey - have removed the conviction record question entirely from all private employer applications.

If your company is with any of these states or cities, you need to be aware of a few essential components of the revised hiring practice. First and foremost, employees can only be disqualified if their conviction is "recent" and is somehow related to the position. Secondly, before any background checks are implemented, applicants must be informed and offer up their consent. Lastly, there can be no questions or language in the physical application as it relates to a person's criminal history. These changes might seem subtle, but they are essential to remaining compliant and avoiding potential penalties.

Do ban the box policies work?
It depends on which source you ask. A June 2016 report from the Center For Economic and Policy Research found the U.S. loses between $78 and $87 billion annually in goods and services due to issues with hiring felons. A 2011 report from the Economy League of Greater Philadelphia found hiring these individuals has several key benefits, like increasing sales tax and overall tax contributions. However, a June 2016 study from researchers at Princeton and the University of Michigan noted ban the box policies can have downsides - namely that removal of the conviction box on applications can cause some hiring managers to rely on other clues, which can lead to legal compliance issues. 

Though ban the box changes are still relatively new, and the discussion will undoubtedly continue, it's important to remain in compliance if your state or city has already adopted these policies.


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