As the adoption rate of “Ban the Box” laws continues gathering pace, more and more Americans are finding themselves living in these jurisdictions. Currently, about 211 million Americans are living in areas which have Ban-the-box laws of one form or another. This accounts for almost two-thirds of the US population.
The next step in the evolution of Ban-the-box legislation is also slowly beginning to unfold. Generally speaking, the adoption of ban-the-box laws can be said to unfold in three stages. The first stage is state or local authority level. Generally, when a state or city bans the box, it usually implements the ban first in its own hiring processes.
The next step is extending the ban-the-box law to contractors. In this respect, private contractors who supply goods or services to the state or city are mandated to ban-the-box in their hiring processes. The final step is extending the ban-the-box law to all private employers.
Granted, ban-the-box laws aren’t introduced in the three distinct stages in every jurisdiction where they are adopted. However, in most jurisdictions, the laws take a while to get extended to private employers. And this is what is beginning to unfold jurisdictions around the country.
The number of jurisdictions extending ban-the-box laws to private employers is slowly rising. Currently, 9 out of the 25 states with ban-the-box legislations apply them to private employers. These are Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont. Many more are in the process of emulating these nine states.
Aside from passing legislation’s, many jurisdictions are also encouraging employers to adopt best practices which complement ban-the-box laws. A good example is the US EEOC’s guidance on the use of arrest and conviction history when making hiring decisions. This guidance offers employers tips on how to use arrest and conviction history and informs them in situations when improper use can tantamount to legal violations.
One of the core recommendations in the EEOC’s guidance is for employers to adopt fairer decision-making processes when dealing with arrest and conviction history. Among others, employers are urged to consider the mitigating circumstances around the offense, the relatedness of the conviction to the job at hand, any evidence of rehabilitation and time passed since arrest or conviction.
The take home for private employers is that ban the box laws may soon be enacted within their jurisdictions. Even if their state or local authorities delay in enacting them, the moves towards a Federal ban-the-box law means that they could still find themselves covered by the laws. As such, employers need to begin preparing for that day.
Perhaps the best preparation an employer can make is by reading the EEOC’s guidance and beginning to integrate it into their hiring processes. This guidance actually makes a good case for delaying to make inquiries about an applicant’s arrest and conviction records until at the latter stages of the interview process. As such, it is a great way for employers to understand the rationale behind banning the box, and how they can actually benefit from it. Whoever desires to read the EEOC’s guidance can find it here.