Applicants Not Required to Disclose Criminal Past? Ban the Box Movement Spreads Across the United States
The article below appeared in the Workplace Violence Prevention eReport Volume 3, July/August 2013
“Have you ever been convicted of a crime?”
While this is generally viewed as an acceptable – and standard – question on job applications, a
growing number of cities and states are giving it a second look. Known as “Ban the Box”, the
movement works to remove the aforementioned question from initial job applications, delaying any
inquiries into an applicant’s criminal past until later in the hiring process. The thought is that by
delaying questions about an applicant’s past, employers will not prematurely eliminate someone who
may be qualified.
The question is, does this legislation protect an applicants' rights, or does it simply disguise their
Like all legislation, Ban the Box has sparked a nationwide debate among supporters and opponents.
Proponents of the movement believe removing any inquiries into an applicant’s past until later in the
hiring process ensure they will not be automatically excluded from the pool of potential hires. They
also say that employment for ex-offenders is the key to the successful societal re-integration.
However, opponents argue that Ban the Box prevents employers from adequately screening
applicants when questions about criminal history are not asked until very late in the process.
Ban the Box has also resulted in a patchwork of laws that create inconsistencies and make it
increasingly difficult to perform what most would consider even the most basic due diligence in the
screening process. What about businesses in multiple jurisdictions? Companies with multiple
locations may have different regulations depending on the Ban the Box legislation specific to that
locale. Another source of contention in the movement are criminal convictions. If the convictions are
clearly job related, should they be disclosed early in the hiring process to prevent instances of
Broad-sweeping Ban the Box Statutes
Hawaii was the first state to Ban the Box in 1998. The legislation prohibited public and private
employers from inquiring about an applicant's criminal history until after a conditional offer of
employment has been made. Since then, California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico and Rhode Island, have enacted similar statewide legislation,
with varying provisions regarding public versus private employment.
California (2010): The administrative directive applies to state employment and required the
California State Personnel board to revise the State Examination/ Employment Application for state
employees by removing questions asking about criminal convictions.
Colorado (2012): House Bill 1263 prohibits state agencies and licensing agencies from performing a
background check until the agency determines that the applicant is a finalist for the position or
receives a conditional offer. Prior to the bill, Colorado state employment applications omitted any
inquiries about applicants’ convictions or arrests. Thus, unlike the typical ban the box legislation, this
bill does not include language that requires removing the question about convictions on the
Connecticut (2010): House Bill 5207 applies to state employment, job-related factors, and limits on
information in the hiring process. This bill prohibits certain covered state employers from asking
about a prospective employee's past convictions until the person is deemed otherwise qualified for
the position. The prohibition does not apply if a statute specifically disqualifies someone from a
position due to a prior conviction.
Hawaii (1998): House Bill 3528 applies to public and private employment and limits on information.
The bill prohibits employers from inquiring into an applicant’s criminal history until after a conditional
offer of employment has been made. The offer may be withdrawn if the applicant’s conviction bears a
“rational relationship” to the duties and responsibilities of the position sought.
Maryland (2013): Senate Bill 4 prohibits specified appointing authorities in the Judicial, Executive, and
Legislative branches of State government from inquiring into the criminal record or criminal history of
an applicant for employment until the applicant has been provided an opportunity for an interview;
providing that the Act does not prohibit specified appointing authorities from notifying an applicant
for employment of specified information; providing for exceptions; etc.
Massachusetts (2010): Senate Bill 2583 applies to public and private employment and limits on
information. Employers can no longer use an initial written employment application to ask whether
an applicant has been convicted unless a legal restriction applies to the specific job or occupation.
Also, effective May 4, 2012, the law requires that applicants receive a copy of their criminal history
prior to being questioned about their history and if an adverse decision is made based on the report.
Minnesota (2009): House File 1301 applies to public employment, job-related factors, and limits on
information. One provision prohibits public employers from inquiring into or considering an applicant’s criminal history until after the applicant has been selected for an interview by the state, its
agency, or political subdivision. Senate File 523 goes into effect on January 1, 2014 and will restrict
the timing of pre-employment inquiries by most private employers into a candidates criminal past.
New Mexico (2010): Senate Bill 254 applies to public employment and limits of information. The bill
prohibits state agencies from inquiring into an applicant’s conviction history on an initial employment
application until an applicant has been select as a finalist.
Rhode Island (2013): Senate Bill 357 prohibits inquiries on employment applications regarding prior
criminal convictions except when federal or state law mandates disqualification of a person from
employment because of a prior conviction or specifically authorizes such inquiries. It applies to both
public and private employers in Rhode Island employing four or more individuals, or any person acting
directly or indirectly in the interest of an employer. The law goes into effect on January 1, 2014.
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