What is “The Box” and why are we banning it?

Have you ever filled out a job application which asks the question, “have you ever been convicted of a crime?” with a little checkbox next to it? That’s “the box” that everyone’s talking about.

For many years, HR professionals across the nation were relying on this box to pre-screen applicants without ever conducting a compliant background check.

Photo by Andrea Piacquadio

Employers would simply ask whether the individual had been convicted of a misdemeanor, felony, or any other kind of crime that may be relevant. If the applicant answered “yes”, the employer would disregard the application altogether as part of their “pre screening process.”

Advocates of Ban The Box say that allowing employers to ask these questions before the background screening process prevents applicants with a criminal history from being given a fair chance and that these policies are actually in direct violation of Fair Chance Laws. They believe that society as a whole benefits from Fair Change Laws by reducing recidivism. It’s been shown that people with a checkered past are more likely to offend if they can’t find steady employment. Time to break that cycle, right?

Advocates also point out that many background screeners were skirting FCRA regulations by using database searches (instead of going to the courthouse) to find adverse action. Because the application was rejected during the pre-screening process, or “application verification” process, the decision not to hire was not made because of something found in their consumer background report. While that premise stands upon legally shaky ground (at best), it hasn’t stopped HR professionals from rejecting applicants this way for many years – and most applicants wouldn’t even know it had happened!

Opponents of Ban The Box claim that they wouldn’t be hiring the individual regardless – whether they found out about the criminal conviction during the application process or during the background screening process, so what does it matter? It’s just costing them extra money to run a background check on someone they’re not going to hire anyway. May as well weed them out now, right?

Opponents also contend that banning the box raises the stakes for potential penalties and litigation when the question gets pushed into the FCRA part of the hiring process.

Just to complicate issues, not all states have a Ban The Box law in place – at the time of this article, only 36 states and about 125 counties and cities have enacted such laws. With people working across state lines more and more, how does anyone stay on top of these rules?

What do you think about these laws? Do they help people with criminal histories find a stable source of employment? Or is it just more red tape for HR professionals and background screeners?

The authors of the information presented on this page are not attorneys nor are they affiliated with attorneys. The information presented on this page does not constitute legal advice. Before acting on any of the information obtained from this page or any others on this website, please consult your own legal counsel.
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