Ban the Box – State Laws on Criminal Records

Ban the Box - State Laws on Criminal Records

Ban the Box is a campaign to remove questions about past criminal convictions from job applications and push background checks to a later point in the hiring process so that employers consider a candidate’s qualifications first without the stigma of a past criminal conviction. The campaign has been growing with over 30 states and 150 counties and cities adopting Ban the Box style legislationaws and 30 states. Furthermore, the federal government has ‘banned the box’ in regards to federal employers, though not federal contractors. The following states have some form of Ban the Box laws:

Ten of these states have mandated the removal of conviction history questions from job applications for private employers:

California
Connecticut
Hawaii
Illinois
Massachusetts
Minnesota
New Jersey
Oregon
Rhode Island
Vermont

Because this is a relatively new campaign, there is still debate as to whether it truly removes the bias associated with hiring individuals with criminal records. Many studies have found that these types of policies do not prevent a bias because employers are still likely to have a bias towards those they believe may have a criminal record. This opens the doors to new issues such as racial discrimination; however, both sides believe that this campaign does more good than harm.

Arizona

Unless the offense has a reasonable relationship to the occupation, an occupational license may not be denied solely on the basis of a felony or misdemeanor conviction.

California

Does the law affect public or private sector employers? This law affects all employers with 5 or more employees. What are the rules? Employers may not include on any application for employment any question that seeks the disclosure of an applicant’s conviction history. Employers cannot deny an applicant position solely because of conviction history. In the event the employer denies the applicant, there needs to be an assessment which considers:

The nature and gravity of the offense
The time that has passed since the offense and completion of the sentence
The nature of the job

It is a FEHA (California Fair Employment and Housing Act) violation for an employer with 5 or more employees to ask about an applicant’s conviction history.

Colorado

Does this rule apply to private or public employers? This law applies to both public and private employers. What are the rules? Employers may not require an applicant to disclose any information that is contained in a sealed record.This does not necessarily mean that the employer is prohibited from asking about an employee’s conviction history, they are only prohibited from asking if the record has been sealed. If the record has been sealed, the employee may answer questions about arrests or convictions as though they had not occurred. Employers are further prohibited from inquiring about arrest for civil or military disobedience unless it resulted in a conviction. Colorado also has a Clean Slate Law allowing for arrest records that don’t result in a conviction and certain older criminal records to be automatically sealed if a person remains crime-free for a set period of time. Crimes involving violence, such as murder, assault, sexual assault and robbery, which fall under the Crime Victims Rights Act, are not eligible. See the law for more information.

Connecticut

Does this law affect private or public employees? This law affects all employers in the state of Connecticut. What are the rules? No employer may inquire about an applicant’s prior arrests, criminal charges, or convictions on an initial employment application, unless (1) the employer is required to do so by law, or (2) a security or fidelity bond or equivalent bond is required for the position. Employers may not disclose information about a job applicant’s criminal history except to members of the personnel department or, if there is no personnel department, person(s) in charge of hiring or conducting the interview. Employees not be asked to disclose information about a criminal record that has been erased; may answer any question as though arrest or conviction never took place. May not be discriminated against in hiring or continued employment on the basis of an erased criminal record. If conviction of a crime has been used as a basis to reject an applicant, the rejection must be in writing and specifically state the evidence presented and the reason for rejection.

Delaware

Does this law apply to public or private employers? This law applies to public employers only. Private employers may still inquire about an employee’s criminal history. What are the rules? Employers may not inquire into or consider the criminal record, criminal history, or credit score of an applicant for employment during the initial application process, up to and including the first interview. A public employer can disqualify an applicant based on criminal history where the disqualification is related to the position and consistent with business necessity. The employer should consider:

The nature of the offense
The time that has passed since the offense
The nature of the position sought

Florida

Employees and applicants may not be disqualified from practicing or pursuing any occupation or profession that requires a license, permit, or certificate because of a prior conviction, unless it was for a felony or first degree misdemeanor and is directly related to the specific line of work.

Georgia

Does this rule apply to private or public employers? The executive order from the Governor of Georgia extends the law only to public employers acting under the executive branch in the state of Georgia. What are the rules? An employer may not use a prior criminal history as an automatic disqualifier for job applicants. Employers are also prevented from using an application form that discriminates against qualified job applicants. This practice provides qualified applicants with the opportunity to discuss the relevance of a criminal record with a prospective employer. Currently, the policy is only in effect for government entities, with no update to private employment practices.

Hawaii

Does this law apply to public or private employers? This law applies to all employers in the state of Hawaii. What are the rules? Employers are prohibited from refusing to hire, to discharge, or to discriminate in terms of compensation, conditions, or privileges of employment because of a person’s arrest or court record. An employer may inquire into a conviction only after making a conditional offer of employment, provided it has a rational relation to the job. Employers may not examine any convictions over 10 years old. Employees with expunged records may state that no record exists and may respond to questions as a person with no record would respond. Agency guidelines for preemployment inquiries: Hawaii Civil Rights Commission, “Guideline for Pre-Employment Inquiries”.

Idaho

Does the law affect public or private employers? Idaho currently does not have any law regulating whether employers can ask applicants about their criminal history. Idaho does encourage employers to give a fair opportunity to applicants even though they may have a police record. For more information, please see the Idaho Division of Human Resources Handbook

Illinois

Does this law affect public or private employers? This law affects all employers with 15 or more employees in the state of Illinois. What are the rules? Employers that are covered by the law may not ask about criminal records of an applicant until the applicant is deemed otherwise qualified for the position and has been selected for an interview, or until a conditionaloffer of employment is made to the applicant.

Kansas

Does this law affect public or private employers? The executive order affects all public employers in the executive branch. What are the rules? During the initial stage of an application, executive branch departments may not ask applicants whether they have a criminal record. A criminal record does not automatically disqualify an applicant from interview eligibility. The order, however, does not apply when a criminal history would render an applicant ineligible for a position. For more information, see the agency guidelines for pre-employment inquiries: Kansas Human Rights Commission, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring”.

Louisiana

Does this law apply to private or public sector employees? This law applies to only state employers. What are the rules? No state employers can inquire about an applicant’s criminal history until after the employee has been given an opportunity to interview, or until after a conditional offer of employment has been given. In making a final determination, the state employer may consider:

The nature of the conduct
The time that has passed since the criminal conduct
The nature of the position and the effect the conduct will bear on the ability to perform the duties of the position.

Maine

Does this law apply to private or public employers? Maine currently has no law regulating the use of an applicant’s criminal history during the application process. The only relevant law regards the effect of a criminal history on eligibility for an occupational license, registration, or permit granted by the state. What are the rules? In determining eligibility for the granting of any occupational license, registration, or permit issued by the state, the state may take into consideration the criminal history record of the applicant. The existence of such information does not, however, act as an automatic bar to a license. Only convictions that directly relate to the profession or occupation, that include dishonesty or false statements, that are subject to imprisonment for more than 1 year, or that involve sexual misconduct on the part of a licensee may be considered. Agency guidelines for preemployment inquiries: The Maine Human Rights Commission, “Pre-employment Inquiry Guide”, suggests that asking about arrests is an improper race-based question, but that it is okay to ask about a conviction if related to the job.

Maryland

Does this law apply to public or private employers? This law applies only to public employers. Private employers are not prohibited from inquiring into an applicant’s criminal history. What are the rules? State employers may not inquire into the criminal history of an applicant until the applicant has been provided an opportunity for an interview. The statute does not apply to:

A position in the Department of Public Safety and Correctional Services
A position for which the appointing authority has a statutory duty to conduct a criminal background check
A position in the office of the sheriff.

Agency guidelines for pre–employment inquiries: The Office of Equal Opportunity and Program Equity, “Guidelines for Preemployment Inquiries Technical Assistance Guide”.

Massachusetts

Does this law apply to private or public employers? This law applies to all employers in the state of Massachusetts. What are the rules? Employers are prohibited from asking, either written or orally, about criminal records that have been sealed or expunged. If a job application has a question about prior arrests or convictions, it must include a formulated statement (that appears in the statute) that states that an applicant with a sealed record is entitled to answer, “No record.”

Arrest records. May not ask about arrests that did not result in conviction.
Convictions. May not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations, or disturbing the peace; may not ask about misdemeanor convictions 3 years or more years old.

Agency guidelines for preemployment inquiries: Massachusetts Commission Against Discrimination, “Discrimination on the Basis of Criminal Record”.

Michigan

Does this law apply to private or public employers? This law applies to all employers, employment agencies, or labor organizations, other than a law enforcement agency of the state of Michigan. What are the rules? Employers are prohibited from asking about an arrest, detention or disposition where a conviction did not result. A person is not guilty if they fail to disclose information they have civil right to withhold. Agency guidelines for preemployment inquiries: Michigan Civil Rights Commission, “Preemployment Inquiry Guide”.

Minnesota

Does this law apply to private or public employers? This law applies to both private and public employers. What are the rules? Public and private employers may not inquire into the criminal record or criminal history of an applicant until the applicant has been selected for an interview, or until a conditional offer of employment has been made. What about for licenses? No one can be disqualified from pursuing or practicing an occupation that requires a license, unless the crime directly relates to the occupation. Agency may consider the nature and seriousness of the crime and its relation to the applicant’s fitness for the occupation. Even if the crime does relate to the occupation, a person who provides evidence of rehabilitation and present fitness cannot be disqualified. Agency guidelines for preemployment inquiries: Minnesota Department of Human Rights, “Hiring, Job Interviews and the Minnesota Human Rights Act”.

Missouri

Does this law apply to private or public employers? This law applies only to public employers. What are the rules? State agencies are prohibited from asking questions related to an applicant’s criminal history during the initial application stage.

Nebraska

Does this law apply to private or public employers? This law applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant. What are the rules? Public employers are prohibited from asking applicants about their criminal record during the initial state of an application, or until the public employer has determined the applicant meets the minimum employment qualifications.

Nevada

Does this law apply to private or public employers? This law applies only to public employers in the state of Nevada. Private employers are not prohibitedfrom inquiring into the criminal history of an applicant. What are the rules? Criminal history of an applicant can only be considered after: (1) the final interview is conducted in person; (2) the applicant has been offered a conditional offer of employment; or (3) the applicant has been certified by the administrator. Agency guidelines for preemployment inquiries: Nevada Equal Rights Commission, “Preemployment Inquiry Guide”.

New Hampshire

Does this law apply to private or public employers? This law applies to both private and public employers. What are the rules? In any application for employment, or license, a person may be questioned about a previous criminal record only in terms such as “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” Furthermore, it is unlawful discrimination for an employer to ask about an arrest record, to have a job requirement that applicant have no arrest record, or to use information about arrest record to make a hiring decision, unless it is a business necessity. It is unlawful discrimination to ask about arrest record if it has the purpose or effect of discouraging applicants of a particular racial or national origin group.

New Jersey

Does this law apply to private or public employers? This law applies to all employers with 15 or more employees. What are the rules? Employers with 15 or more employees are prohibited from inquiring about an applicant’s criminal record, including an expunged criminal record during the initial employment application process. Special situations: There are specific rules for casino employees, longshoremen and related occupations, horse racing, and other gaming industry jobs.

New Mexico

Does this law apply to private or public employers? This law applies only to public employers. Private employers are not prohibited from inquiring about an applicant’s criminal history. What are the rules? Records of arrest not followed by a valid conviction and misdemeanor convictions not involving moral turpitude may not be used in connection with an application for any public employment, license, or other authority. A regulating agency may consider convictions for felonies and for misdemeanors involving moral turpitude. However, such convictions cannot be an automatic bar to authority to practice in the regulated field.

New York

Does this law apply to private or public employers? This law applies to employers with 10 or more employees. What are the rules? An employer may not inquire into arrests or charges that did not result in conviction, unless the charges are currently pending. Additionally, employers may not deny employment based on conviction unless it relates directly to the job or would be an “unreasonable” risk to property or to public or individual safety. Agency guidelines for pre-employment inquiries: New York State Division of Human Rights, “Recommendations on Employment Inquiries”.

New York City

New York City’s local law prohibits most employers from asking an applicant about his or her arrest history or criminal record until a conditional offer of employment has been made. This means that employers cannot inquire about the criminal history of an applicant during the interview process. If a conditional offer of employment has been made, the employer may inquire into the applicant’s arrest history or criminal record. If the employer denies an applicant based on the applicant’s arrest history, the employer must provide a written copy of the inquiry to the applicant.

North Dakota

Does this law apply to private or public employers? This law applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of applicants. What are the rules? Employers may obtain records of convictions or of criminal charges (adults only) occurring in the past three years, provided the information has not been purged or sealed. Agency guidelines for preemployment inquiries: North Dakota Department of Labor, Human Rights Division, “Employment Applications and Interviews”.

Ohio

Does this law apply to private or public employers? This law applies only to public employers. Private employers are not prohibited from asking about criminal history. What are the rules? Public employers ae prohibited from including on any form for application for employment any question concerning the criminal background of the applicant. For records that have been sealed, applicant may respond to inquiries as though the arrest did not occur.

Oklahoma

Does this law apply to private or public employers? This law applies to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant. What are the rules? All state agencies are prohibited from asking job applicants questions regarding convictions and criminal history, unless a felony conviction would automatically render an applicant not qualified. The law in Oklahoma does not prevent employers from inquiring of felony convictions during the interview process, and does not prevent employers from conducting background checks into prospective employees.

Oregon

Does this law apply to private or public employers? This law applies to both private and public employers. What are the rules? No employer (public or private) may require an applicant to disclose information about a criminal conviction prior to an initial interview or before a conditional offer of employment has been made.

Pennsylvania

The Pennsylvania Office of Administration passed a Fair-Chance Hiring Policy in May, 2017. The HRP Number is HR-TM001. Link: http://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf Does this rule apply to public or private employers? This rule applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant. What are the rules? This policy mandates that state agencies shall remove the criminal history question from the commonwealth’s employment application. The policy does not apply to positions in which a criminal conviction makes an applicant ineligible under law, or to positions involving security of people or property, or law enforcement. Agency guidelines for pre–employment inquiries: Pennsylvania Human Relations Commission.

Rhode Island

Does this law apply to private or public employers? This law applies to all employers in the state of Rhode Island. What are the rules? Employers are prohibited from inquiring whether an applicant has ever been convicted before the first interview. Additionally, employers are prohibited from inquiring whether the applicant has ever been arrested or charged with any crime. Applicants do not have to disclose any information that has been expunged.

South Dakota

Agency guidelines for preemployment inquiries: South Dakota Division of Human Rights, “Preemployment Inquiry Guide” suggests that an employer shouldn’t ask or check into arrests or convictions if they are not substantially related to the job.

Texas

Does this law apply to private or public employers? This law applies to all employers in the state of Texas. What are the rules? For a job expected to pay less than $75,000 they, generally, may not obtain a criminal record older than seven years.

Austin

Does this law apply to private or public employers? This law applies to private and public employers within the city of Austin with 15 or more employees. What are the rules? The ordinance mandates that any employer with 15 or more employees may not inquire about an applicant’s criminal history on an application, or until a conditional offer of employment has been made.

Tennessee

Does this law apply to private or public employers? This law applies only to public employers in Tennessee. What are the rules? State employers are prohibited from inquiring about an applicant’s criminal history on an initial application form for employment. An employer may inquire about an applicant’s criminal history after the initial screening of applications.

Utah

Does this law apply to private or public employers? This law applies only to public employers. What are the rules? A public employer may not exclude an applicant from an initial interview because of a past criminal conviction. This can happen if a public employer:

Requires an applicant to disclose, on an application, a criminal conviction
Requires an applicant to disclose, before an initial interview, a criminal conviction
If no interview is conduct, requires an applicant to disclose, before making a conditional offer of employment, a criminal conviction.

Vermont

Does this law apply to private or public employers? This law applies to all employers in the state of Vermont. What are the rules? Employers are prohibited from asking about criminal record information on an initial employee application form. An employer may inquire about a prospective employee’s criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position.

Virginia

Does this law apply to private or public employers? This law applies only to executive branch government agencies What are the rules? Employment decisions made by executive branch government agencies shall not be based on an applicant’s criminal history. All executive government agencies are prohibited from asking an applicant about their criminal history on the initial application. Furthermore, employers may not require an employee or applicant to disclose information about any criminal charge that has been expunged,

Washington

Does this law apply to public or private employers? This law applies to all employers in the state of Washington. What are the rules? The bill prohibits all employers from including any question on any application for employment, inquiring either orally or in writing, about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Agency guidelines for preemployment inquiries: Washington Human Rights Commission’s “Pre-employment Inquiries Guide”

West Virginia

Agency guidelines for preemployment inquiries: Bureau of Employment Programs, “Preemployment Inquiries Technical Assistance Guide”. The state’s website says that employers can only make inquiries about convictions directly related to the job. Consider the nature and recentness of the conviction and evidence of rehabilitation. Include a disclaimer that a conviction is not necessarily a bar to employment.

Wisconsin

Does this law apply to private or public employers? This law applies to only public employers. What are the rules? For someone applying for a position in the civil service, the director may not require an applicant to supply information regarding the conviction record of the applicant, before the applicant has been certified for the position. This law does not prohibit the director from notifying the applicant that a particular conviction record may disqualify them from employment.