This article was originally published in June 2022. Updated November 2023.

By now, most HR professionals and hiring managers have heard of Ban the Box and the legislation that’s sweeping the nation. So, what are you doing to prepare for these changes? Are you confident that your onboarding process is up to date and compliant with the laws in place? Here we will help guide you in the direction to make sure your team is prepared for what is to come.

What are Ban the Box Laws?

In simplest terms, Ban the Box means that employers cannot ask on a job application or in certain parts of the hiring process about criminal history. For example, blanket statements like, “have you ever been convicted of a crime.”

These laws aim to put employers’ focus on applicants’ qualifications first, without blanket no-hire policies due to past criminal activity. In most cases, employers must wait until a conditional offer of employment is extended before asking about criminal history or conducting a background check.

On December 20, 2021, Congress enacted the Fair Chance Act. The purpose of the act is to give previous offenders a chance to find work in the United States Federal Government. The Fair Chance Act will “Ban the Box” asking about arrest and conviction history on job applicants for most Federal agencies and contractors. These questions and the background check cannot be started until the conditional job offer has been extended.

What steps can you take to be compliant?

Navigating Ban the Box laws can be confusing. We recommend, as a first step, consulting with your legal counsel. They’ll be able to look at your company profile, industry, and location to see what Ban the Box laws apply to you.

You’ll want to take that information and then review your job descriptions and applications. You’ll also want to be sure your hiring managers only ask about the criminal history during the correct time in the hiring process.

Whether these laws will apply to your organization depends on several factors:

• Company size
• Location(s) you hire in (city, county, and state)
• Industry (different regulations can apply to education, childcare, health care, law enforcement, etc.)
• Public vs private employer

Currently, 37 states and over 150 cities and counties have adopted similar laws.

While public employers appear to be moving to Ban the Box quicker than private employers, the lists continue to grow.

Currently, 15 states have Ban the Box laws in place for private employers. These include:

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

Furthermore, over 20 cities and counties have Ban the Box laws in place for private employers. Some of these include:

Austin, TX; Baltimore, MD; Buffalo, NY; Chicago, IL; Columbia, MO; DeSoto, TX; District of Columbia; Kansas City, MO; Los Angeles, CA; Montgomery County, MD; New York­, NY; Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester, NY; San Francisco, CA; Seattle, WA; Spokane, WA; St. Louis, MO; Suffolk County, NY; Waterloo, IA; and Westchester County, NY.

Check out the National Employment Law Project’s (NELP) detailed chart to see whether your city, county, or state has a policy or law.

What’s next?

It’s important to remember that background checks are still a crucial part of the hiring process. Not even the Federal Government, which has adopted Ban the Box entirely, is removing background screening from their hiring process. The safety of your employees, customers, and your organization’s reputation is still essential.

As these laws continue to sweep the country, it’s always best practice to ensure that your background check process is updated. Then, when it’s time to run the background check after a conditional job offer, you can keep things moving quickly.

One Source always recommends reviewing these five areas:

• Background Check Policy
• Disclosure
• Authorization
• Quality of Data
• Adverse Action

Reach out to our team if you have any questions on ways you can follow compliance laws and regulations. Or you can learn more about how to stay compliant through our blog, Blueprint to a Compliant Background Check Process.