Ban the Box Laws Across the Nation

Anyone can make a mistake or a bad decision at some point. In many instances, when we have an error in judgment we can apologize and move on. We might have to do some work to repair a relationship or restore trust, but the effects are temporary. When an error in judgment results in a criminal history, such as a DUI or marijuana possession, the effects are lasting, and can include having a hard time finding employment.

Employers are reluctant to hire people with a criminal record for many reasons, which can make it harder for people with the criminal histories to put their lives back in order after completing their sentences. When unable to find employment, those people may be unable to pay fines, which can mean they end up back in jail in some places. They also may be unable to pay child support, which also can lead to more time spent in jail at taxpayers’ expense.

Advocacy groups across the nation believe one solution to the employment conundrum for people with criminal histories is for cities, counties, and states to adopt “Ban the Box” laws designed to help people with criminal histories to get a foot in the door with potential employers. “Ban the Box” laws have been passed in several states, but pro-business groups are pushing back and saying that the laws put business owners in a precarious position.

What Are Ban the Box Laws?

“Ban the Box” laws are designed to level the playing field for people arrested or convicted of crimes who are seeking employment. How the laws work varies by state, or by city or county if no statewide law has been enacted, but typically they prevent an employer from asking a potential employee about his or her criminal history during the application stage. The employer usually is allowed to ask about criminal history or conduct a background check at a later stage in the hiring process, such as when a potential employee is interviewed or when a preliminary offer of employment has been extended.

Under “Ban the Box” laws, no employer is forced to hire someone with a criminal background. Employers retain the ability to make decisions about who they hire. However, the idea behind “Ban the Box” laws is to ensure that people with criminal histories aren’t denied having their applications even considered because they’ve checked a box saying they have a criminal history. Proponents of these laws describe them as “fair chance” policies. “Ban the Box” laws also do not supersede laws that prohibit employers from hiring people with certain types of convictions for certain types of jobs, such as laws that may prevent a day care from hiring a convicted sex offender.

Arguments in Favor of Ban the Box Laws

In tough job markets such as the 2008 recession and lengthy recovery period that followed, anyone who discloses a criminal history to a potential employer was at a natural disadvantage when competing for jobs against people with no criminal history, even if they had the qualifications to do the job and the criminal offense has no relation to the job. An estimated 70 million American adults, or about 22 percent of the total national population, has some kind of arrest or conviction on his or her record.

Proponents of “Ban the Box” laws argue that the mere presence of the box or line asking about criminal history on a job application deters people with criminal histories from applying for jobs. Further, they argue that having a job reduces the likelihood that a person with a criminal history will re-offend. According to the National Employment Law Project, one study shows that a 1 percent reduction in the unemployment rate equates to an equivalent or greater reduction in the rate of some criminal offenses. In short, they say that when people with criminal histories have jobs, society as a whole benefits from a reduction in crime.

Proponents also say that “Ban the Box” laws are good for the economy. An NELP fact sheet claims that an estimated $57 to $65 billion is lost due to reduced productivity among felons and people with prison records. When people with criminal histories have jobs, they contribute to the economy and the tax base and aren’t costing money in the criminal justice system.

Arguments Against Ban the Box Laws

Opponents of “Ban the Box” laws argue that the laws are a detriment to business and to public safety. The National Federation of Independent Businesses, for example, has argued that when business owners don’t have relevant criminal history information, they are put into a position of being unable to protect themselves from losses and their customers, vendors, and other employees from possible harm. Further, opponents claim that “Ban the Box” laws may expose employers to negligent hiring claims if a workplace is made less safe by hiring someone with a criminal history.

NFIB additionally argues that by eliminating the question of criminal history at the time of application that employers must carry the burden of additional expense for background backs later on in the hiring process. NFIB has led efforts to combat “Ban the Box” bills in various state legislatures.

A further argument is that the variety of “Ban the Box” laws that exist from state to state or city to city make it complicated and burdensome for employers to comply with the laws. However, NELP notes that some large employers such as Walmart and Target have opted to remove the question from the application process across the board and not just in jurisdictions where they’re prohibited from asking about criminal history.

States with Ban the Box Laws

The following states each have their own version of a “Ban the Box” law. The specifics of each law varies by the individual state where the law was enacted. Some provide exemptions for small employers, but others do not. Some prohibit asking about criminal history only at the application stage, while others carry the prohibition further into the hiring process.

Hawaii was the first state in the U.S. to adopt a “Ban the Box” law in 1998, but the “Ban the Box” movement has been gaining steam in the last few years and several other states have enacted statewide prohibitions against asking about criminal history on job applications.

The states that currently have statewide “Ban the Box” laws are:

• California
• Colorado
• Connecticut
• Delaware
• Hawaii
• Illinois
• Maryland
• Massachusetts
• Minnesota
• Nebraska
• New Jersey
• New Mexico
• Rhode Island

Individual cities or counties in many of these states also have enacted local “Ban the Box” laws.

Cities and Counties With Ban the Box Laws

Some individual cities and counties in states with no blanket “Ban the Box” law have opted to enact their own local ordinances prohibiting questions about criminal history on job applications. Jurisdictions with local “Ban the Box” laws include:

• Florida — Jacksonville, Tampa
• Georgia — Atlanta, Fulton County
• Indiana — Indianapolis
• Kentucky — Louisville
• Louisiana — New Orleans
• Michigan — Ann Arbor, Detroit, East Lansing, Genesee County, Kalamazoo, Muskegon County
• Missouri — Kansas City
• New York — Buffalo, New York, Rochester
• North Carolina — Carrboro, Charlotte, Cumberland County, Durham City, Durham County, Spring Lake
• Ohio — Canton, Cincinnati, Cleveland, Massillon, Youngstown
• Oregon — Multnomah County
• Pennsylvania — Philadelphia, Pittsburgh
• Tennessee — Memphis
• Texas — Austin, Travis County
• Virginia — Alexandria, Newport News, Norfolk, Petersburg, Portsmouth, Richmond
• Washington — Seattle, Spokane
• Washington, D.C.
• Wisconsin — Dane County, Milwaukee