“Ban the Box” Compliance Guide: Why Your Current Application Is a Lawsuit Magnet

Employers want to hire candidates who have the right skills, education, and experience. They also want to make sure the person they hire does not pose a risk to safety, liability, or reputation. It is not a matter of if an employer can ask about criminal history or perform criminal background checks but when they can do so in the hiring process.

Laws About Criminal History and Background Checks

Federal, state, and local laws regulate background checks to protect both job seekers and employers. To promote fair hiring practices and avoid lawsuits, there are a few laws hiring managers should know:

Ban the Box and Fair Chance Act Hiring Laws

Many states and cities have passed “Ban the Box” or “Fair Chance” laws. These laws are designed to eliminate bias against those with prior criminal convictions. Ban the Box laws remove the checkbox on job applications that asks whether the applicant has ever been convicted of a crime.

Fair Chance in Hiring Laws go a step further. They usually prevent an employer from asking criminal history questions until after an interview or a conditional offer of employment. The application forms would not ask for criminal history information. These laws apply to private employers.

The Fair Chance to Compete for Jobs Act is a federal law that prohibits federal agencies from requesting criminal history or conviction records from job applicants before an offer of employment.

Currently, the states with either Ban the Box policies or Fair Chance laws are California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

The laws vary by state but typically only allow questions about an applicant’s criminal history after a conditional job offer. So timing is critical in these states.

Equal Employment Opportunity Commission (EEOC) Guidance

Even if your state and jurisdiction does not have these laws, the U.S. Equal Employment Opportunity Commission (EEOC) advises employers to avoid discrimination when making employment decisions. The EEOC’s guidance encourages employers to delay criminal history inquiries until after making a conditional job offer and to consider if the criminal conviction is job-related.

Fair Credit Reporting Act (FCRA)

The federal Fair Credit Reporting Act (FCRA) requires employers who use third-party companies to run background checks to notify the applicant and get their written consent before doing it.

Creating a Legally Compliant Application

First, check your state laws and local jurisdictions to determine if there are Ban the Box or Fair Chance laws. Then review your initial job application and remove any references to criminal records.

Prohibited Application Questions

Any questions about criminal history such as, “in the past 7 years, have you been arrested, charged, or convicted…” may get you in trouble. Remove these questions from your application:

• Have you ever been convicted of a felony or misdemeanor?

• Have you ever been arrested or charged with a crime?

Permitted Application Questions

There are permissible questions you may add to your employment application such as:

• Are you legally authorized to work in the United States?

• Do you hold the required certifications or licensing for this role?

You may include a statement on the application such as “Applicants will be subject to a background check only after a conditional offer of employment is made in accordance with state and local laws.”

You can look at a sample of a Ban the Box Compliant Job Application Template and adapt for your purposes

Disclosure and Authorization for Background Checks

Second, if you are conducting background checks, give the applicant a stand-alone document, called a Disclosure For Background Investigation  to alert them you may use a background screening company for employment purposes. Include the name of the Consumer Reporting Agency (CRA) and a summary of the rights under the Fair Credit Reporting Act. The applicant must then sign an authorization (that you provide) acknowledging they received the Disclosure For Background Investigation and they authorize the background check.

What If a Background Check Shows an Adverse Result?

If the background screening process shows an adverse result, you must send a Pre-Adverse Action Notice to the applicant informing them that a decision may adversely affect their application for employment based on information in a consumer background report. You must provide the name and contact information of the Consumer Reporting Agency (CRA) and include a copy of the background check report and a copy of the “Summary of Your Rights Under the Fair Credit Reporting Act.”

The applicant has a time period (commonly five business days) to correct or clarify the information. For example, a criminal record might have been expunged but still shows up. If the applicant does not correct the information after the waiting period, the employer must send a final Adverse Action Notice to the applicant.

Generally the application process sequence should be as follows:

(1) Present conditional job offer to applicant

(2) Get applicant consent for background check

(3) Perform background check

(4) If there is an adverse result, send Pre-Adverse Action notice

(5) After waiting period, send Adverse Action Notice

Penalties for Ban the Box or Fair Chance hiring violations vary by jurisdiction. Because employers can face administrative fines, government action, and lawsuits by applicants or employees, it’s vital to learn your local laws. Make sure your applications, application process, and hiring decisions conform to local, state, and federal laws. Consider engaging an employment attorney to review or draft your documentation or applications.

Disclaimer: The information presented here does not constitute legal advice or representation. It is general and educational in nature, may not reflect all recent legal developments, and may not apply to your unique facts and circumstances. Consider consulting with a qualified attorney if you have legal questions.