Historically, almost all applications for employment included some variation of the following inquiry: "Have you ever been convicted of a felony? Yes 0 or No 0." Many still do, which may prove problematic as an increasing number of states and municipalities across the nation enact statutes and ordinances designed to remove these types of questions, and their associated check boxes, from job applications.
This effort is commonly known as the "ban the box" movement. The goal of the movement is essentially to defer any criminal history inquiry until later in the hiring process and prohibit employers from using an applicant's criminal record as an automatic bar to employment. It started as a grassroots movement with the goal of providing "second chance" employment opportunities to individuals with criminal records - a surprisingly large group of people. According to the National Employment Law Project, 1 in 4 Americans have either an arrest or a conviction on their record, in most cases for nonviolent offenses. The "ban the box" movement seeks to ensure that these individuals have a fair shot at entering (or re-entering) the workforce.
Although the precise restrictions vary a bit from city to city and state to state, "ban the box" laws generally prohibit an employer from asking about arrests or convictions on the initial application for employment. If an applicant makes it through the initial screening process, criminal history questions can usually be asked later in the hiring process, such as during the job interview, at which point the applicant will have an opportunity to explain him/herself. Some states - such as Minnesota - are more restrictive than most and prohibit making any criminal history inquiries until after interviews or conditional job offers. Proponents of "ban the box" (including the EEOC) want employers to make individualized inquiries to determine whether the criminal record involved is actually related to the job in question. Of course, there are often industry-specific or job-specific exceptions to "ban the box" laws, such as those jobs in which employers are required by law to run criminal background checks (e.g., jobs working with children and/or vulnerable adults), so those obligations will not be affected.
The increased focus on "ban the box is due in large part to the EEOC's concerted effort to bring this issue to the forefront of public debate. In 2012, the EEOC released its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#I), in which the agency endorsed "ban the box" as a best practice under Title VII. The EEOC has taken the position that criminal background checks have the potential to violate Title VII because racial minorities are arrested and convicted of crimes at higher rates than non-minorities. Per the EEOC guidelines, an employer's criminal history questions should be tailored to the specific job in question and employers should not deny employment based on an applicant's criminal history without due consideration of the severity of the crime, the crime's relation to the job, and the time passed since conviction. Although not binding, the guidance caught the attention of lawmakers and employers alike.
As a practical matter, employers and human resources professionals should take note that this is a timely and constantly evolving area of the law. Now is a great time to double check the statutes/ordinances in the jurisdictions in which you solicit employment applications to see if there have been any changes and ensure compliance going forward.
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