Ban the Box: Adopting Fair Hiring Practices

“Ban the box” legislation bars employers from inquiring about an applicant’s conviction or arrest record prior to a conditional offer of employment. This term and practice first emerged at the state level in Hawai’i and later gained national momentum when the grassroots organization All of Us or None, advocated for the elimination of application checkboxes to indicate arrest or conviction records, arguing that this practice enables various forms of bias, discrimination, and unfair hiring practices.

Currently, federal “ban the box” legislation is under consideration, but 37 states and over 150 cities and counties have already established statewide, countywide, or municipal policies that seek to support fair hiring and “fair chance” or “second chance” opportunities for candidates with criminal records. Additionally, many private businesses have adopted internal/company-wide “ban the box” policies to foster inclusive hiring, attract candidates from a wider talent pool, boost employee retention, and diversify their workforces.

In this article, we’ll explore where ban-the-box policies are currently in place and how adopting inclusive recruitment strategies for your organization can support organizational growth, criminal background check compliance, and fair & responsible hiring.

Statewide Ban the Box Policy - Public vs. Private Sector Employment 

Although any statewide ban-the-box measures are considered a step toward more fair and inclusive hiring, states have differed in their willingness to apply ban-the-box policy to public sector vs. private sector employment. Expanding ban the box policy to private sector employment creates greater opportunities for those with criminal records to find employment in a wider range of jobs and industries in their region. This is especially crucial when an applicant’s past criminal record has little or no bearing on an open position's job responsibilities or workplace safety concerns, or when significant time has elapsed since an arrest or conviction, and clear evidence of rehabilitation is present.

Below, we’ve cataloged all 37 states with ban-the-box policies in place, differentiating those with public-only vs. public and private sector ban-the-box policies. Those with private sector ban-the-box policies in place mandate the absence of application questions about conviction history in the pre-employment phase. However, it’s important to remember that the specific protocols of each state’s ban-the-box legislation vary.

Arizona – Public sector only 

California – Public and private sector

Colorado – Public and private sector

Connecticut – Public and private sector

Delaware – Public sector only

Georgia – Public sector only

Hawai’i – Public and private sector

Illinois – Public and private sector

Indiana – Public sector only

Kansas – Public sector only

Kentucky – Public sector only

Louisiana – Public sector only

Maine – Public and private sector

Maryland – Public and private sector

Massachusetts – Public and private sector

Michigan – Public sector only

Minnesota – Public and private sector

Missouri – Public sector only

Nebraska – Public sector only

Nevada – Public sector only

New Hampshire – Public sector only

New Jersey – Public and private sector

New Mexico – Public and private sector

New York – Public sector only

North Carolina – Public sector only

North Dakota – Public sector only

Ohio – Public sector only

Oklahoma – Public sector only

Oregon – Public and private sector

Pennsylvania – Public sector only

Rhode Island – Public and private sector

Tennessee – Public sector only

Utah – Public sector only

Vermont – Public and private sector

Virginia – Public sector only

Washington – Public and private sector

Wisconsin – Public sector only

Local & Municipal Ban the Box Policy 

Reflecting current federal policy (active as of 2021), the District of Columbia (D.C.) as well as over 35 cities and counties apply ban-the-box policies to government contractors, with the following 22 localities – organized by state – extending policies to private employers, as well:

California - San Francisco, Los Angeles

Illinois - Chicago

Iowa - Waterloo

Maryland - Baltimore, Montgomery County, Prince George’s County

Missouri - Columbia, Kansas City, St. Louis

New York - Buffalo, New York City, Rochester, Suffolk County, Westchester County

Oregon - Portland

Pennsylvania - Philadelphia

Texas - Austin, Desoto

Washington - Seattle, Spokane

Federal Ban the Box Policy – Recent and Forthcoming Changes

Federal policy regarding fair hiring and ban the box policy has evolved steadily over the past ten-plus years, beginning with the Equal Opportunity Commission’s (EEOC) modified guidelines for hiring: the “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions.”

National attention and momentum regarding ban the box policy grew considerably in late 2021, when the Fair Chance to Compete for Jobs Act of 2019 took effect, barring federal agencies – as well as federal defense and civilian contractors – from soliciting applicant information regarding conviction and arrest history before a conditional offer of employment has been made.

Although nationwide ban-the-box legislation is not currently in effect, the Workforce Justice Act was reintroduced in April 2023 and is under consideration. If passed, this legislation would require all states to enact policies that ban private employers from inquiring about any candidate’s conviction or arrest record prior to a conditional offer of employment.

How Ban the Box Policies Help Employers

Employers across jurisdictions and industries must remain aware of mandated requirements at local, county, state, and federal levels regarding ban the box policy. Regardless of compliance obligations, many organizations have opted to proactively develop internal policies that support fair hiring and inclusive recruiting. Below are just some of the benefits of ban-the-box policies:

• Expansion of qualified talent pool: Considering approximately 1 in 3 adults in the United States have some conviction or arrest record, implementing a ban the box policy in the recruitment/hiring process grants employers access to more capable and talented candidates. Eliminating pre-employment inquiries about criminal history also reduces the possibility of noncompliance with EEOC guidelines and candidate protections under Title VII of the Civil Rights Act of 1964.
  
  
• Increased employee retention: Independent studies indicate thatemployees with histories of arrest or conviction are actually more likely to remain with the organization that hired them when compared with employees without criminal history. 
  
  
• Foster a more diverse workforce: Municipal and statewide studies not only point to the efficacy of ban the box policies in creating more diverse teams and workforces, but alsodemonstrate concrete economic benefits in local communities.
  
  
• Improve company reputation: Adopting fair chance, second chance, and ban the box policies positively demonstrates the core values of your organization to potential job seekers, candidates, current employees, clients, and the general public.

Implement Fair Recruitment and Hiring with The Orsus Group

Staying up to date with hiring-oriented compliance requirements is challenging enough, but implementing a fair, inclusive, thorough, and expedient background screening process is an even greater hurdle. 

The Orsus Group leverages leading-edge technology and expert support to adapt to the needs of your organization based on its industry, compliance requirements, and long-term organizational goals. We help you achieve peace of mind about compliance while implementing tools and policies that let you and your workforce focus on growth and responsible talent acquisition.

Ready to establish a fair and efficient system for hiring top talent? Start the process today with The Orsus Group.