Ban-the-Box laws were instituted with the idea that by delaying the point in the hiring process in which an employer can ask an applicant about conviction history, the applicants would have a fair chance at gaining employment, but do the laws work?

Many employers who work in multiple locations find it challenging to navigate the varying requirements and the effects on their business. There are a minimum of 27 that have enacted ban-the-box policies on the federal and public employer level, and of the 27 states, nine of them have extended the laws to private employers. There are also over 150 cities and counties which also have ban-the-box laws.

Employers have to keep an eye on the different requirements and updates as they are generated. They then have to carefully consider all of the requirements of the various locations as they make decisions on when and how they will use information regarding conviction records for their potential employees.

The most basic aspect of ban-the-box is to remove questions regarding criminal history from employment applications. This part of the law is simple enough. However, when you get to the variations between states, cities, and counties, this is where the challenges arise. For example, in New York City, not only do employers have to delay asking about criminal history until a conditional offer of employment is made, the city also requires the employer to thoroughly review and analyze the conviction history in relation to the job to be performed. The employer is to consider the applicant’s “merits before their mistakes.” If an employer in NYC rescinds an offer of employment it must give the candidate an “analysis” of the conviction history along with the copy of the criminal conviction report.

Furthermore, employers are prohibited from mentioning that a background check will be completed or that criminal history will be considered before making a conditional offer of employment. However, if you are hiring in San Francisco, questions regarding criminal history are only prohibited until after the initial interview. Another city within the State of California, Los Angeles, unlike, San Francisco, requires employers to wait until after a conditional offer of employment just like New York City.

So what is an employer to do? Make sure that you have a representative who stays informed on the laws in the jurisdictions in which you work, then review and update your employment application and processes as required by the laws.

Even when employers are fully informed and abiding by the ban-the-box laws, the question about the effectiveness of the law still stands. Several studies, such as “Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment,” by Amanda Agan, a Professor of Economics at Princeton, and Sonja Starr, a law professor at the University of Michigan, found that racial disparity is increased by the laws. Jennifer L. Doleac, an assistant professor of public policy and economics at the University of Virginia, has also conducted research on this topic and concluded that the laws actually decrease employment for black and Hispanic men who do not have criminal records.

Still, other employers, such as Alta Equipment in Livonia, MI, and DK’s Repairs, and Lazlo LLC, both in Detroit, have a different view. They support ban-the-box, and they actively hire employees who have been convicted of crimes and served their time. They are giving people the opportunity for a fresh start.

Whatever your view of ban-the-box is, make sure you know the laws for your locations. After that, take an in-depth look at whether or not their conviction has anything to do with the job for which they have applied. As stated earlier in reference to the New York City law, consider “merits before their mistakes.”

Sources:  crainsdetroit.com, shrm.org, nelp.org, law360.com, brookings.edu, nyc.gov