Unless your company is already abiding by ban-the-box laws and best practices, there’s a high likelihood that your application asks whether the applicant has ever been convicted of a crime, and for a description or explanation of the crime.
For lawmakers and activists concerned with employment prospects and recidivism rates for ex-convicts, these questions are troubling. Their assumption is that if an individual checks the box that says yes, they have been convicted of a crime, their application goes straight into the trash. The individual never gets a chance to talk to the hiring manager, never mind a chance to be hired. To combat this, the lawmakers and activists started championing ban-the-box bills in an attempt to improve the hiring chances for those who have a criminal conviction in their past.
These bills typically do two things: First, they require employers to remove the question about criminal convictions (along with the associated yes/no checkboxes) from applications within their jurisdiction – thus the name “Ban the Box.” Second, they require employers to delay background checks until later in the hiring process. This later date varies by jurisdiction, but typically they require you to hold off on the background check until either after an interview or after a conditional offer of employment has been accepted.
But why? In the end, you’re still running a background check and finding out about the history anyway, right? Well, not necessarily. Let’s say that your applicant has a 20-year-old misdemeanor conviction, in a state they haven’t lived in for 15 years. If you do a 7-year criminal history check on current name and addresses, you’re not going to find that information. More importantly, if you’re only doing a 7-year check it’s probably because you determined that a longer check isn’t consistent with business necessity – meaning that this conviction probably doesn’t have any bearing on the individual’s ability to perform the job anyway.
The majority of states now have a law on the books regarding ban-the-box in some capacity. Many smaller jurisdictions – counties or cities – have their own ban-the-box laws. As a result of this and the 2012 EEOC Guidance (which advises employers to remove questions about prior convictions from their initial applications and, for employers that ask later in the hiring process, only ask about convictions that would disqualify the applicant from the specific position in question), evolving best practice is to proactively remove this question from your application.
Even if you collect the information early in the process, it may be wise for employers not to actually review it until later – but tell the applicant that up front, so that they don’t believe that getting an interview means that the employer has accepted the applicant’s criminal history. And finally, it is still best practice to ensure that any questions exclude criminal history that the employer won’t consider because it is irrelevant to the position. For example, if a position does not require driving, then an employer might tell applicants that they don’t need to disclose drunk driving convictions. Exactly what to tell an applicant for a position depends on the nature of the job and the risks arising from the prior criminal conduct.