What is Ban the Box and Why Small Businesses Should Know About It

by | 27 Jun, 2017

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Recently, many U.S. states and cities have enacted bills to “Ban the Box” and prevent employers from requiring job applicants to disclose their criminal backgrounds.

Such laws offer applicants with criminal histories an opportunity they’ve long been looking for: to seek employment without their past arrests or criminal convictions being brought up in every job interview.

For small businesses, however, these laws are met with a bit less enthusiasm. While they do stand to gain from a deeper talent pool, it  may now require a few additional precautions.

The Ban the Box Movement

Ban the Box laws are unique to each participating state or municipality, and much of the legislation, in its many forms, is now active all over America — from Georgia to New Jersey to New York to California. It should be no surprise, then, that some Ban the Box laws go further than others.

Take New York City, for example, which recently passed the Fair Chance Act, to go into effect in October, 2015. This Ban the Box law has been incorporated under the city’s Human Rights Law. For businesses with more than four employees, the act prevents employers from inquiring about applicants’ criminal convictions until after they have extended a conditional job offer, and it prevents them from asking about arrest records entirely.

Near the other end of the spectrum, the City of San Francisco enacted the Fair Chance Ordinance in 2014. This law limits the use of criminal history information for employers who have more than 20 employees (a number that includes dispersed or remote workers). Such employers are banned from inquiring about past convictions or running criminal background checks until it has been determined that an applicant has the skills and experience necessary to perform the job for which they applied.

Benefits for Small Businesses

Ban the Box laws are generally thought to be a good thing for employers, economically speaking. Theoretically, employers gain access to more talent, which may lower administrative costs. . Meanwhile, affected potential employees have greater access to employment, which promotes stable lifestyles and helps boost the economy as a whole.

There is reason to believe that this may happen. The relevance of many offenses, which frequently appear on arrest and conviction records, has been called into question. If true, this could be good for businesses. To the extent that applicants with such non-relevant offenses might have been dismissed from employment consideration due to the existence of that offense alone, employers may find that they have more qualified applicants to choose from.

What Are the Risks to Small Businesses?

Hiring someone with a past conviction — perhaps involving violent crime or corporate fraud charge — may carry risks. If an employee files a claim involving such an employee, then an examination of the company’s hiring practices for negligence might follow. Whether a particular piece of Ban the Box legislation would help or hinder in such a situation is unclear.

Refusing to hire someone with a past offense, however, may provide grounds for a discrimination lawsuit in several jurisdictions. Affected small business owners should determine which local or state agencies are responsible for enforcing their Ban the Box requirements and consult with trusted risk management advisors to create compliance policies.

Fine-Tune Your Process and Hire With Confidence

It is critical for employers to have a pre-hire screening process in place.

Compliance requires diligence — and, sometimes, a helping hand. Affected employers should review their HR practices to ensure they have met their law’s requirements. Here are a few things you might consider:

    • Review of the employee screening process with HR and legal teams.
    • Creation of new, compliant questions for job applications and interviews, including more detailed questions about professional references and employment history.
    • Performing thorough, non-criminal background checks on all hiring candidates.
    • Following up with references, pressing for solid insights into the qualities and skills a potential candidate may possess.  

Consider partnering with a Professional Employer Organization (PEO). PEOs are experts when it comes to hiring, compliance and HR best practices in all aspects of a business.

Navigate can provide you with the resources and expertise to help you grow your business and make smart hiring decisions in a more difficult regulatory environment. Contact us to tell us more about your small business. We’re here to help.

Tom DiSilva
Tom DiSilva has been providing professional human resource services for over 30 years. As the CEO of Navigate PEO, he actively partners with organizations of all sizes in the Greater New England area and across the country to help their businesses grow. He has expertise in HR and Labor Management, offering guidance and support for key areas of business such as negotiations, operations management, employee coaching, and employee benefits design. . He is an active member of The Society for Human Resource Management (SHRM), The National Association of Professional Employer Organizations (NAPEO), Professional Association of Co-Employers (PACE), and The American Payroll Association (APA). He is deeply committed to giving back to the community both personally and through Navigate Cares, which provides support for several nonprofit organizations such as the USO, The Boys & Girls Club, and the 3Point Foundation.

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Disclaimer: this article does not represent expert advice and is provided for informational purposes. Please get in touch if you would like expert HR advice.