Ban the Box: Should You Ask About Criminal History On Your Job Applications?

It has long been common for employers to ask job applicants on their applications whether they have ever been convicted of a crime. However, that practice is quickly changing, as “ban the box” laws are being enacted at the state, county and municipal levels across the country. “Ban the box” means removing conviction-related questions from job applications and the interview process and delaying any criminal background check until later in the hiring process after a job offer is made.

The State of Ohio recently banned the box for state civil service jobs – one of 17 states to do so – and the cities of Cleveland and Cincinnati have done the same for their applicants. While private employers are not required to ban the box in Columbus or in Ohio generally, state and city governments around the country are moving in that direction, as six states and several cities around the country have required private employers to defer criminal history checks until a job offer is made. The Equal Employment Opportunity Commission also has shined a spotlight on the issue, advocating employers to remove general criminal inquiries from employment applications and to instead make individualized inquiries tailored to the particular job.

As a private employer, you need to decide whether banning the box is right for you. Any employer needs to make sure it is not hiring a violent criminal or a thief who puts the business or its employees at risk. However, there are compelling reasons to consider deferring these questions until later in your hiring process.

Asking about convictions on employment applications can eliminate qualified candidates. A great applicant may be scared away from applying or may be unnecessarily rejected because of a conviction that is years old or is completely unrelated to the job at hand. Because an estimated one in four Americans has a criminal record, a substantial part of your applicant pool could be among those scared away.

Banning the box may help you avoid a discrimination claim, too. Because minorities are disproportionately convicted of crimes, making employment decisions based on criminal convictions alone may impact minority applicants unfairly and open your business up to costly lawsuits and claims of discrimination.

Even if you decide to ban the box on your applications, remember that you are not giving up the right to run a criminal background search – you have a right to know whether you are hiring convicted criminals who might not be right for your business. However, you are waiting until later in the hiring process when you have had a chance to get to know the applicant better and you are not making a hiring decision based solely on the conviction.

Talk to your employment attorney about whether banning the box is right for your business. Your attorney will help you stay up to date with this quickly-changing employment trend and to make a decision that fits your business.