"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.