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Ban the Box

Ban the Box Laws

"Ban the Box" is the name associated with a campaign by civil rights groups and fair chance advocates. The goal of this initiative is to see the checkbox that asks about an applicant's criminal history be removed from the employment application. Several statewide and local laws have already been enacted and many of them contain provisions requiring employers to do more than simply remove the checkbox.  

This map depicts locations that have a statewide and/or local "Ban the Box" law that impacts private employers. Below the map you'll find a summary of each law.

States with Ban the Box Laws

 

This information is presented for general educational purposes and is provided solely for the convenience of its readers. It is not a substitute for legal advice. Consultation with qualified legal counsel is recommended for all matters of employment law.

 

Click any state link below to view a summary of "ban the box" laws that exist within its borders.

 

California

Massachusetts

Oregon

Washington

Connecticut

Minnesota Pennsylvania Washington D.C.

Hawaii

Missouri

Rhode Island

 

Illinois

New Jersey

Texas

 

Maryland

New York

Vermont

 

 

 

 


 

California:

Currently, California has no statewide "ban the box" law. However, the City of Los Angeles, and the city and county of San Francisco have their own laws; see below.

Effective July 1, 2017, the "Consideration of Criminal History in Employment Decisions" issued by the California Department of Fair Employment and Housing (DFEH) affect how employers may consider criminal history in making employment decisions.

According to the regulations, employers are prohibited from using criminal records and information in employment decisions if:

  • Doing so would have an adverse impact on individuals in a legally protected class, as listed in the FEHA, that the employer cannot prove is job-related and consistent with business necessity or
  • The employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.

If an employer can demonstrate that its policy or practice of considering criminal history is both job-related and consistent with business necessity, thereby meeting the first two requirements, an adversely affected employee or applicant may still prevail if they can show there is a less discriminatory policy or practice.

Employers are specifically prohibited from seeking or considering the following types of criminal history when making employment decisions such as hiring, promotion, training, discipline, or lay-off, and termination, regardless of the “adverse impact” requirement above:

  • An arrest or detention that did not result in conviction;
  • Referral to or participation in a pretrial or post-trial diversion program;
  •  A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law;
  •  An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; and
  • A non-felony conviction for possession of marijuana that is two or more years old.

Finally, the regulations require additional steps in the adverse actions process. Employers must provide specific notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is inaccurate to the employee or applicant prior to taking any adverse action. If the employee or applicant can prove the record is factually inaccurate, then it cannot be considered in the employment decision.

 

 

 
California - City of Los Angeles:

Effective January 22, 2017, The Los Angeles Fair Chance Initiative prohibits employers located or doing business in the City of Los Angeles with ten or more employees from inquiring about an applicant’s criminal history until a conditional offer of employment has been made. Employers are required to provide written assessment(s) to the applicant before taking adverse action using, at a minimum, the EEOC factors related to criminal records.

The ordinance has additional posting and recordkeeping requirements. Employers are required to state in all job ads and solicitations that they will consider for employment qualified applicants with criminal histories in a manner consistent with the law. In addition, employers are required to post a notice informing applicants of the provisions of the law at every workplace in the City. The notice must also be provided to each labor union or representative of workers with which they have an agreement that is applicable to employees within Los Angeles. Records and documents related to the job application, written assessments and reassessments must be retained for three years following the receipt of the initial application.

  • The law provides exceptions in the following circumstances:
  • The employer is required by law to obtain information regarding past convictions.
  • The applicant is required to possess or use a firearm in the course of employment.
  • An applicant convicted of a crime is prohibited by law from holding the position.
  • The employer is prohibited by law from hiring an applicant convicted of a crime.

An applicant or employee can report alleged violations of The Los Angeles Fair Chance Initiative via an administrative enforcement process, after which civil action may be taken. Effective July 1, 2017, employers deemed in violation may be subject to City fines of up to $2,000.

The ordinance also includes a ‘whistleblower’ provision, prohibiting employers from taking adverse action against any employee who lodges a complaint of non-compliance with the City. 

Full text of The Los Angeles Fair Chance Initiative


 

California - San Francisco:  

Effective August 13, 2014, employers are prohibited from inquiring about an applicant's criminal history prior to the first live interview or until after a conditional offer of employment is made. The law applies to all companies that employ 20 or more persons worldwide and to employee positions that average 8 hours of work performed a week in San Francisco regardless of where the employer is located.

Prior to any inquiry, the applicant must be provided with a notice of his or her rights under the Fair Chance Ordinance (FCO), which is in addition to the FCRA Summary of Rights and the California specific disclosure required under the Investigative Consumer Reporting Agencies Act (ICRAA). The notice is also required to be posted where it is “readily accessible” to job applicants and employees and must be made available in English, Spanish, Chinese, Tagalog and any other language spoken by at least 5% of the employees at the workplace or jobsite.

The FCO also prohibits employers from ever considering the following:

  • An arrest not leading to a conviction, except for unresolved arrests;
  • Participation in a diversion or deferral of judgment program;
  • A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative;
  • A conviction in the juvenile justice system;
  • An offense other than a felony or misdemeanor, such as an infraction; or
  • A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults).

Additionally, the law incorporates an individual assessment component which requires that employers consider the following when reviewing an applicant’s criminal history:

  • Satisfactory completion of terms of probation or parole;
  • References from post-conviction employers;
  • Education/training since conviction;
  • Participation/completion of rehabilitative treatment, e.g. drug, alcohol;
  • Letters of recommendation from various sources;
  • Mitigating factors:

o   Coercive conditions that lead to conduct;

o   Intimate physical or emotional abuse that contributed to conduct;

o   Untreated substance abuse or mental illness that contributed to the conviction.

  • Only consider directly related convictions which have a direct and specific negative bearing upon the applicant's ability to perform the job.

Pre-adverse action must be taken prior to refusing to hire an applicant based in whole or in part on the results of a background check, including sending the applicant a copy of the report, advising the applicant about what in the record was the basis for possible adverse action, providing at least 7 days for the applicant to dispute the record, and keeping the position open during that waiting period.

The Office of Labor Standards (OLSE) is responsible for administration and enforcement. The OLSE may impose an administrative penalty of up to $100 for each individual whose rights were violated or continued to be violated. Civil penalties may also be assessed against the employer with penalties including reinstatement, back pay, benefits and pay withheld, liquidated damages of $50 per individual for each day the individual's rights under the law were violated, injunctive relief, and attorney's fees and costs.

Full text of the San Francisco law


 

Connecticut: 

Effective January 1, 2017 all employers in the state of Connecticut with one or more employees is prohibited from inquiring about an applicant’s criminal history on an initial employment application. The law provides exceptions in the following circumstances:

  • the employer is required to do so by an applicable Federal or State law, or
  •  a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Even if these exceptions exist, an applicant may not be asked to disclose information about either arrests, charges, or convictions that have been erased. 

If the question of criminal history is asked on an employment application after the initial application or under one of the exceptions listed above the form must contain a notice in clear and conspicuous language that:

  • the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased;
  • that the criminal records subject to erasure are records pertaining to a finding of delinquency or that  a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and
  • that any person whose criminal records have been erased shall be deemed to have never been arrested and may swear so under oath.

No employer shall deny employment based solely on an applicant’s prior record which has been erased or if the applicant has received a provisional pardon or certificate of rehabilitation.

The law also establishes a “fair chance employment task force” that will study issues related employment opportunities of those individuals with criminal records.

 Full text of the Connecticut law 


 

Hawaii: 

Effective in 1998, Hawaii became the first state to introduce a "ban the box" law, prohibiting employers from inquiring about an applicant's criminal history prior to a conditional offer of employment. After the conditional offer is made, employers are allowed to conduct a background check, but may only consider conviction records that have occurred within the most recent 10 years, excluding periods of incarceration. These requirements do not apply to those employers who are permitted to inquire into an applicant's criminal history pursuant to any federal or state law.

Full text of the Hawaii law


 

Illinois: 

The state of Illinois, as well as the city of Chicago and Cook County all have "ban the box" laws.

Effective January 1, 2015, the state of Illinois made it unlawful for public and private employers with fifteen or more employees to inquire about or into, or require disclosure of the criminal history of an applicant until the individual has been determined qualified for the position and notified of an impending interview, or until after a conditional job offer is made. Under the following situations, employers are exempted from the requirements:

  • An employer is required to exclude applicants with certain criminal convictions under federal or state law;
  • If certain criminal convictions would automatically disqualify an applicant from obtaining a standard fidelity bond or equivalent bond which is required for the position; and
  • If an employer hires individuals licensed under the Emergency Medical Services Systems Act.

The Illinois Department of Labor is charged with enforcement of the law and the Director of Labor may impose escalating civil penalties for each violation and failure to remedy past violations within the stipulated timeframe.

Full text of the Illinois law

Illinois - Chicago:  

Effective January 1, 2015, employers within Chicago city limits may look into a job applicant’s criminal history only after notifying the applicant of an impending interview, or after a conditional job offer has been made. After the notification of interview or conditional job offer, if an employer finds the applicant has a criminal conviction, the employer must then consider the following:

  • The nature of the applicant’s offense(s) and sentencing;
  • The number of convictions, length of time since the applicant’s most recent conviction and age at which he/she was last convicted;
  • The relationship between the applicant’s crimes and nature of the position for which he/she applied;
  • Evidence of rehabilitation, treatment, and counseling; and
  • The extent to which the applicant was honest and cooperative about his convictions.

If the employer subsequently chooses to deny or rescind the offer of employment, based entirely or partially on the applicant’s criminal history, the employer must inform the applicant of this basis at the time he/she is informed of the decision.

Exceptions to Chicago’s “ban the box” law include:

  • Jobs where federal or state law disqualifies the applicant based on his/her convictions;
  • Jobs requiring a standard fidelity bond (or equivalent) disqualify a candidate based on his/her prior convictions;
  • Positions for individuals licensed under the Emergency Medical Services (EMS) Systems Act.

The Commission on Human Relations is charged with enforcement and may impose up to a $1,000 fine for each violation.

Full text of the Chicago law

Illinois - Cook County:

Effective July 29, 2015, all employers, regardless of size, are prohibited from inquiring about an applicant's criminal record prior to an interview or, if no interview is conducted, prior to a conditional offer of employment. The law states explicitly that an applicant's criminal record must not automatically disqualify the applicant from employment and employers must consider the following factors prior to rescinding the conditional offer of employment:

  • The nature of the offense or offenses;
  • The number of convictions;
  • The length of time that has passed following the last conviction;
  • The relationship between the crime(s) and nature of the position; and
  • The age of the applicant at the time of the most recent conviction.

If after making the appropriate considerations the employer decides not to hire the applicant based in whole or in part on the criminal history or record, the employer must inform the applicant of this at the same time he or she is informed of the decision not to hire.

The following exceptions apply to certain employers and positions:

  • Employers that are subject to the Illinois Job Opportunities for Qualified Applicants Act, 820 ILCS 75/1 et seq., or agents of employers or employment agencies seeking qualified employees on behalf of such an employer;
  • Positions for which a satisfactory criminal background is an established bona fide occupational requirement of a particular position or a particular group of employees;
  • Positions for which federal or state law requires an Employer to exclude Employees with certain criminal convictions;
  • Positions for which a standard fidelity bond or an equivalent bond is required and an Employee's conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond; and
  • Positions for which licensure under the Emergency Medical Services (EMS) Systems Act, 210 ILCS 50/1 et seq is required.  

A listing of cities and towns in Cook County can be found here

Full text of the Cook County law


 

Maryland:

Currently, there is no statewide "ban the box" law in Maryland. However, the city of Baltimore, as well as Montgomery and Prince George's County each have their own law.

Maryland - Baltimore:

Effective August 13, 2014, employers with 10 or more full-time equivalent employees are prohibited from inquiring about an applicant’s criminal history until a conditional job offer has been made. Exception is provided where:

  • An inquiry into criminal history is required or authorized by an applicable Federal, State, or City law or regulation; or
  • The facility or employer provides programs, services, or direct care to minors or to vulnerable adults.

The Baltimore Community Relations Commission is charged with investigating alleged violations. Employers who are found to have violated the law may face criminal penalties of up to a $500 fine and 90 days in prison for each violation.

Full text of the Baltimore law

Maryland - Montgomery County: 

Effective January 1, 2015, private employers with 15 or more full-time employees within the county must wait to inquire into an applicant’s criminal history until the conclusion of the first interview. Compliance requires an employer who intends to rescind a conditional job offer based on an applicant’s arrest or conviction record to:

  •  Provide the applicant or employee with a copy of any criminal record report;
  • Notify the applicant of the intention to rescind the offer and state the items that are the basis for the intention to rescind the offer;
  • Delay rescinding the conditional offer for 7 days to permit the applicant to give notice of inaccuracy of any items on which the intention to rescind the conditional offer is based.

Exemptions apply to:

  • Employers who are required to conduct checks to comply with federal, state, or county law;
  • County Police, Fire and Rescue Service or the Department of Corrections and Rehabilitation;
  • Employers providing programs, services, or direct care to minors or vulnerable adults; and
  • Employers hiring for a position that requires a federal government security clearance

Non-compliance can result in up to $1,000 in civil penalties.

A listing of cities and towns in Montgomery County can be found here

Full text of the Montgomery County law

Maryland - Prince George's County:  

Effective January 20, 2015, employers with at least twenty-five full-time employees within the county can no longer ask about an applicant’s criminal history until after the first interview. This law applies to anyone seeking paid employment as well as to those seeking vocational or educational training, regardless of compensation.

If an employer chooses to rescind a conditional offer of employment based on criminal history, the employer must: 

  • Conduct an individualized assessment considering only specific offenses that may demonstrate unfitness to perform the duties of the position sought, as well as time elapsed since specific offense and evidence of inaccuracy in the record;
  • Provide the applicant with a copy of the background screening report and their intention to rescind the offer;
  • Specify the “items” that are the basis for the intention to rescind the offer;
  • Delay rescinding the offer of employment for  7 days to permit the applicant to notify employer of inaccuracies on which intention to rescind the offer of employment is based; and
  • Rescind the offer in writing

The law provides exceptions for the following situations:

  • The employer provides programs, services, or direct care to minors or “vulnerable adults”;
  • Employers required to inquire about a candidate’s criminal convictions based on federal, state, or county regulations; and
  • Employment application is to various county agencies or to positions that, in the judgment of the County, have access to confidential or proprietary business or personal information, money or items of value, or involve emergency management.

 The Director of the Human Relations Commission is charged with enforcement.

 A listing of cities and towns in Prince George’s County can be found here

 Full text of Prince George's County law


 Massachusetts:

Effective May 4, 2012, employers are prohibited from inquiring about an applicant's criminal history on an initial application form. Positions where federal or state laws mandate disqualification based on criminal history are exempt.

Full text of Massachusetts law

**UPDATE**   July 2017

Effective July 2017, the DCJIS implemented amended regulations for the Massachusetts Criminal Offender Record Information (CORI) law that was enacted in May of 2012, 803 CMR 2.00. The new regulations have serious impact on Massachusetts employers, who continue to face challenges in their access to and use of criminal history information of their job applicants. 

The most notable change involves additional steps in the adverse action action process.  The consumer shall be provided with a pre-adverse action disclosure that complies with federal and state laws and regulations and includes:

  • a copy of the consumer report, which includes the source of the criminal history information and the subject’s CORI or criminal history information; 
  • a Summary of Your Rights Under the Fair Credit Reporting Act;
  • a copy of the organization’s CORI policy (if applicable); 
  • identify the specific information in the subject's CORI or criminal history information that is the basis for the potential adverse action; 
  • provide notification and an opportunity to dispute the accuracy of the information contained in the CORI or criminal history information (not needed in licensing decisions):
  • when CORI is considered as part of a potential adverse action, provide the subject with a copy of DCJIS information regarding the process for correcting CORI.

Documentation of all steps is also required under the new regulations. 

 

 


 

Minnesota: 

Effective January 1, 2014, employers of any size are prohibited from inquiring about an applicant's criminal history until the applicant is selected for an interview, or, if no interview will be conducted, until a conditional offer of employment has been made. The law provides exemption for those employers who are prohibited under federal or state law from hiring an individual who has been previously convicted of a crime. The Minnesota Department of Human Rights (MDHR) is charged with enforcing the law.

Employers may be subject to the following penalties for non-compliance:

  • For employers with ten or fewer employees in the state, the penalty is $100 person violation (not to exceed $100 in a calendar month).
  • For employers that employ eleven to twenty employees in the state, the penalty is up to $500 per violation (not to exceed $500 in a calendar month).
  • For employers with more than twenty employees in the state, the penalty is up to $500 per violation (not to exceed $2,000 in a calendar month).


Full text of the Minnesota law


 

Missouri:

Currently, Missouri has no statewide "ban the box" law.  However, the city of Columbia has its own law.

Missouri - Columbia: 

Effective December 1, 2014, employers are prohibited from asking about an applicant’s criminal history until after a conditional offer of employment has been made. Applicants may then still be disqualified from the position based on their record, leaving it up to the employer to evaluate the severity and nature of the crime(s) committed. Exceptions to Columbia’s “ban the box” ordinance extend to:

  • Employers required to exclude candidates with certain criminal convictions based on local, state, or federal regulations
  • Jobs requiring a standard fidelity bond (or equivalent) which may disqualify a candidate based on his/her prior convictions
  •  Positions for individuals licensed under the Emergency Medical Services (EMS) Systems Act

The City of Columbia’s Human Rights Commission has been tasked with enforcing the ordinance and employers who do not comply with the new regulations may be subject to a maximum fine of $1000 or 30 days in prison.

Full text of the Columbia law


 New Jersey:

The state of New Jersey has a “ban the box” law that preempts any existing or future city or county laws and effectively negated the Newark “ban the box” ordinance.

On December 7, 2015 final regulations and guidance were published for clarification and response to public comment.

Effective March 1, 2015, employers with 15 or more employees, regardless of where the employees actually reside, are prohibited from inquiring about an applicant’s criminal history, including conducting internet searches, until after an initial interview has taken place. It is also unlawful to state in job advertisements that applicants with convictions or criminal histories will not be considered. The law defines an interview as any live contact with the applicant either in person, by telephone, or by videoconference to discuss the position or the applicant’s qualifications.
 
Multi-state employers are allowed to continue the use of a standardized application that includes a question regarding criminal history, provided that the question is preceded by a statement that directs applicants for a position which will be located, either in whole or in substantial part, within New Jersey not to answer the question.
 
The law extends to all direct employees, including interns and apprentices. Independent contractors, however, are not protected and employers are allowed to inquire about their criminal history without restriction. If the question arises as to whether the applicant is seeking a position as an employee or independent contractor, the Department of Labor considers the following criteria:
  • the level of control over the individual performing services;
  • whether the service is outside the usual course of the business, or outside the place of business, of the employer; and
  • whether the applicant is “customarily engaged in an independently established trade, occupation, profession, or business
Special consideration should be given to the nature of an employer’s relationship with employee leasing or staffing agencies, as the relationship will dictate when the inquiry into criminal history is allowed. If the employer and agency are considered separate employers, each must conduct interviews prior to the inquiry.
 
There are exemptions in place for jobs in law enforcement and where the position being sought requires by law that a criminal background check be conducted.

 Employers who violate the law face penalties up to $1,000 for the first violation, $5,000 for a second violation, and $10,000 for a third violation. 

Full text of the New Jersey law

 

New York:

Currently, there is no statewide "ban the box" law in New York. However New York State’s Correction Law, Article 23A must be complied with when using criminal history information during the hiring process. 

New York City, Buffalo, and Rochester each have their own "ban the box" laws.

All New York employers will consider NYS Article 23-A when assessing the applicant’s criminal history. Under Article 23-A, an employer may not deny employment unless it can:

·       Draw a direct relationship between the applicant’s criminal record and the prospective job; or

·       Show that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

To claim the direct relationship exception, an employer must first draw some connection between the nature of conduct that led to the conviction(s) and the potential position. If a direct relationship exists, an employer must evaluate the Article 23-A factors to determine whether the concerns presented by the relationship have been mitigated.

To claim the unreasonable risk exception, an employer must begin by assuming that no risk exists and then show how the Article 23-A factors combine to create an unreasonable risk. Otherwise, this exception would cover all convictions not directly related.

The Article 23-A factors are:

·       That New York public policy encourages the licensure and employment of people with criminal records;

·       The specific duties and responsibilities of the prospective job;

·       The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;

·       The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;

·      The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

·        The seriousness of the applicant’s conviction history;

·        Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;

 

·        The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

New York - Buffalo:  

Effective January 1, 2014, employers are prohibited from inquiring about an applicant's criminal history prior to the completion of an application and an initial interview. The following employers are exempt from the requirements of this law:

  • Employers with fewer than 15 employees;
  • Law enforcement agencies;
  • Schools and providers of direct services to children, young adults, senior citizens, and the physically or mentally disabled;
  • Employers hiring for licensed trades or professions, including interns and apprentices for such positions;
  • Employers who hire for positions where certain convictions or violations are a bar to employment under New York or federal law.

Employers who violate this new law may be subject to a civil action or proceeding by an “aggrieved” person for injunctive relief, damages, and other legal or equitable relief. Attorneys’ fees may also be awarded in the court’s discretion. Alternatively, a person or organization, whether or not an aggrieved party, may file a complaint with the Commission on Citizen’s Rights and Community Relations (CCRCR). If a certified finding of probable cause is made, the director of the CCRCR may ask the city’s corporation counsel to commence an action seeking a penalty of $500 for the first violation and $1,000 for each subsequent violation.

Full text of the Buffalo law

New York - New York City:

Effective October 27, 2015, employers with four or more employees are prohibited from inquiring into or otherwise considering an applicant’s criminal history on an initial employment application or in any other form prior to extending a conditional offer of employment. 

Prior to taking adverse action based on an applicant's criminal history, employers are required to:

  • Provide a written copy of the inquiry to the applicant;
  • Perform an analysis of the applicant under Article 23-A of the NYS correction law and provide a written copy of the analysis using the Commission's Fair Chance Act Notice form;
  • Allow the applicant no less than 3 business days to respond after providing the inquiry and analysis. During this time the position must be held open for the applicant.

The law provides the following exemptions:

  • Does not apply to any actions taken by employers or their agents pursuant to any state, federal, or local law that requires criminal background checks for employment purposes or bar employment based on criminal history;
  • Does not apply to various public employment positions, including but not limited to law enforcement agencies. 

The New York City Commission on Human Rights is charged with enforcement and will assess civil penalties based on the following:

  • The severity of the particular violation;
  • The existence of additional previous or contemporaneous violations;
  • The employer's size, considering both the total number of employees and revenue; and
  • Whether or not the employer knew or should have known about the law

Full text of the New York City law

New York - Rochester: 

Effective November 18, 2014, employers with four or more employees are prohibited from inquiring about an applicant's criminal history until after an initial interview, or, if not interview is conducted, until after a conditional offer of employment has been made. Exceptions apply when specifically authorized by any other applicable law, or for City Police and Fire Departments.

Any person aggrieved by a violation of this law can bring a civil lawsuit directly against the employer. Rochester's Corporation Counsel may also bring suit, imposing penalties of up to $1,000 per violation.

Full text of the Rochester law 


 

Oregon:

The state of Oregon as well as the city of Portland have "ban the box" laws.

Effective January 1, 2016, employers are prohibited from excluding an applicant from an initial interview solely because of a past criminal conviction. An employer excludes an applicant from an initial interview if the employer:

  • Requires an applicant to disclose on an employment application a criminal conviction;
  •  Requires an applicant to disclose, prior to an initial interview, a criminal conviction; or
  •  If no interview is conducted, requires an applicant to disclose, prior to making a conditional offer of employment, a criminal conviction

Subsequent to abiding by the above noted provisions, nothing prevents an employer from considering an applicant's conviction history when making a hiring decision.

Employers under the following circumstances are exempted and may inquire about criminal history at any time during the hiring process:

  • If federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history;
  • To an employer that is a law enforcement agency;
  • To an employer in the criminal justice system; or
  • To an employer seeking a nonemployee volunteer. 

The Commissioner of the Bureau of Labor and Industries is charged with enforcement.

Full text of the Oregon law

Oregon - Portland:

Effective July 1, 2016, employers with six or more employees who perform work for a majority of the time in the City of Portland are prohibited from inquiring about an applicant's criminal history until after a conditional offer of employment has been made.

It is also unlawful for an employer to exclude an applicant from consideration based solely on his or her criminal history, requiring that an employer conduct an individualized assessment to determine if the specific offense or conduct has a direct relationship to the position in question or business necessity before rescinding the conditional offer of employment. An individualized assessment must take into account the following:

  • The nature and gravity of the criminal offense;
  • The time that has elapsed since the criminal offense took place; and
  • The nature of the employment held or sought.

Employers are also limited in the types of criminal history that they can consider as well. The following records cannot be considered:

  • Arrests not leading to a conviction, except where a crime is unresolved or charges are pending;
  • Convictions that have been judicially voided or expunged; or
  • Charges not involving physical harm or attempted physical harm that have been resolved through the completion of a diversion or deferral of judgment program.

An employer can rescind a conditional offer of employment based on the applicant’s criminal history if an employer determines in good faith that conduct is job related for the positon and consistent with business necessity. When rescinding the conditional offer of employment, the employer must notify the applicant in writing of the decision and identify the criminal convictions upon which the decision to rescind was based.

Exemptions from the ordinance mirror the State exemptions and are as follows:

  • If federal, state, or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history:
  • To an employer that is a law enforcement agency;
  • To an employer in the criminal justice system; or
  • To an employer seeking a nonemployee volunteer.

Additionally, for the following positions an employer may consider an applicant’s criminal history at any point in the hiring process but must comply with all other requirements in the chapter:

  • The position involves the direct access or provision of services to children, the elderly, persons with disabilities, persons with mental illness, or individuals with alcohol and drug dependence or substance abuse disorders;
  • The position has been determined by administrative rule to present public safety concerns or a business necessity;
  • The position is designated as part of a federal, state, or local government program designed to encourage the employment of applicants with criminal backgrounds.

The Bureau of Labor and Industries is charged with enforcement.

 Full text of the Portland law 


 

Pennsylvania:

Currently, Pennsylvania has no statewide "ban the box" law. However the city of Philadelphia has its own law.

Pennsylvania - Philadelphia:

Effective March 14, 2016, all Philadelphia employers will face significant changes to the “ban the box” rules that have been in place since 2011. Under the new law employers, regardless of size, are prohibited from inquiring about an applicant’s criminal history until after a conditional offer of employment has been made.

Employers may then only consider conviction records that have occurred less than 7 years from the date of the inquiry. Any period of confinement may not be included in the 7 year calculation. Additionally, employers may not reject an applicant based on his or her criminal record unless the employer can conclude, after conducting an individualized assessment, that the record bears a relationship to the position sought and there is a business necessity for exclusion. An individualized assessment must include the following considerations:

  • The nature of the offense;
  • The time that has passed since the offense;
  • The applicant’s employment history before and after the offense and any period of incarceration;
  • The particular duties of the job being sought;
  •  Any character or employment references provided by the applicant; and
  • Any evidence of the applicant’s rehabilitation since the conviction.

These prohibitions do not apply if inquiries into criminal history or adverse action taken as a result of criminal history are specifically authorized or mandated by other laws or regulations.

After conducting the assessment, if an employer decides to rescind the conditional offer of employment they must:

  • Notify the applicant in writing of the decision and the basis for it;
  • Provide the applicant a copy of the criminal history report; and
  • Allow the applicant 10 business days to provide evidence that the information is inaccurate or to provide an explanation. 

The law also includes a notification component, requiring that employers post a summary of these requirements in a form to be supplied by the Philadelphia Commission on Human Relations (Commission). The notice must be positioned in a conspicuous place both on the employer’s website and premises where applicants and employees will be most likely to notice and read it. 

Each violation of the law is considered a “Class III” offense and violators will be subject to fines set forth in the Philadelphia City Code section § 1-109(3). Any aggrieved person may file a complaint with the Commission who then may issue an order directing an employer to take affirmative action to redress the harms suffered by the complainant. The Commission may order remedies, including, but not limited to:

  •  An order requiring the respondent to cease and desist such unlawful practice;
  • Any injunctive or other equitable relief;
  • Payment of compensatory damages;
  • Payment of punitive damages, not to exceed $2,000 per violation;
  • Payment of reasonable attorneys' fees.

If the Commission, within 1 year of the complaint, determines that there isn’t sufficient evidence to proceed with an investigation, or hasn’t entered into an agreement with the complainant, the Commission must notify the complainant that the case is being dismissed. Upon receipt of that notice, the complainant may exercise a private right of action and file a claim in a “court of competent jurisdiction”. The court may grant the right to recover for each violation:

  • Compensatory damages;
  • Punitive damages;
  • Reasonable attorneys' fees;
  • Court costs; and
  • Such other relief, including injunctive relief, as the court may deem appropriate.

Full text of the Philadelphia law

 


 

Rhode Island: 

Effective January 1, 2014, employers are prohibited from inquiring about an applicant's criminal convictions prior to the first interview with the applicant. A conviction is defined as any verdict or finding of guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge. The law provides exemption for positions in law enforcement as well as under the following circumstances:

  • If a federal or state law or regulation creates a mandatory or presumptive disqualification from employment based on a person's conviction of one or more specified criminal offenses, an employer may include a question or ask whether the applicant has ever been convicted of any of those offenses.

  • If a standard fidelity bond or an equivalent bond is required for the position and his or her conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond, an employer may include a question or ask whether the applicant has ever been convicted of any of those offenses.

Aggrieved individuals may file an administrative charge with the Rhode Island Commission for Human Rights (RICHR) or a civil action alleging a violation of the Fair Employment Practices law. The RICHR and Rhode Island courts have the authority to award an aggrieved applicant with a range of remedies including back pay, compensatory damages, punitive damages, and attorney's fees and costs.

Full text of the Rhode Island law


 

 Texas:

Currently, Texas has no statewide "ban the box" law.  However, the city of Austin has its own law.
 
Texas - Austin:
 
Effective April 4, 2016, Austin's Fair Chance Ordinance prohibits private employers from inquiring about an applicant’s criminal history until after making a conditional offer of employment. This law affects employers with at least 15 employees who work primarily within the City for each working day in 20 or more calendar weeks in the current or preceding calendar year.
 
Agencies working on behalf of employers must also abide by the requirements and restrictions, and the law applies to all types of employment, including, but not limited to, temporary, seasonal, contract, and apprenticeship work.

After a conditional offer of employment is made, an employer may proceed with a background check, but may not take adverse action based on the applicant’s criminal history unless “the employer has determined that the individual’s criminal history bears a direct relation to the duties and responsibilities of the job and makes the individual unsuitable for the job”. This individualized assessment must consider:

  • The nature of the criminal history;
  • The length of time that has passed since the offense or release;
  • The relationship of the crimes(s) to the position.

If after proper assessment an employer decides to rescind the offer, they must inform the applicant in writing that the decision was based on the individual’s criminal history.

There is no private right of action against an employer provided for in the law.  Instead, the Equal Employment/Fair Housing Office will field complaints and investigate violation claims. Employers will be given 10 business days to correct a violation after receiving notice of infraction otherwise they may face up to a $500 civil penalty. First-time violations may result in just a warning if the employer agrees to attend appropriate training.

 
Full text of the Austin law.
 

Vermont:

Effective July 1, 2017, employers are prohibited from requesting information about criminal history on an initial application form. Employers may inquire about a prospective employee's criminal history during an interview or once the applicant has been deemed otherwise qualified for the position. Inquiring about criminal history on an application is allowable under the following circumstances:

  • The prospective employee is applying for a position for which any federal or State law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or
  • The employer or an affiliate of the employer is subject to an obligation imposed by any federal of State law or regulations not to employ an individual, in either one or more positions, who has been convicted of one or more types of criminal offenses; and

  • The questions on the application form are limited to the types of criminal offenses creating the disqualification or obligation.

If an employer inquires about a prospective employee's criminal history and the prospective employee is still eligible for the position under applicable federal or State law, he or she must be given an opportunity to explain the information and circumstances regarding any convictions, including post-conviction rehabilitation.

Employers found in violation of this law are subject to a $100 civil penalty for each violation.

Full text of the Vermont law


 

Washington:

Currently, Washington has no statewide "ban the box" law.  However, the city of Seattle has its own law.

Washington - Seattle:

Effective November 1, 2013, employers and those acting as agents of employers are prohibited from inquiring about an applicant’s criminal history until after the employer has identified qualified applicants. No employer may advertise, publicize or implement any policy or practice that automatically or categorically excludes and applicant with an arrest or conviction record from employment in any position that will be performed at least 50% of the time within the City of Seattle. Once the qualified applicants have been identified, an employer may then proceed with a criminal background check with the following limitations on the use of the arrest or conviction records:

  • An arrest is not proof that a person has engaged in unlawful conduct. Employers shall not carry out a tangible adverse employment action solely based on an applicant's arrest record;
  •  Employers shall not carry out tangible adverse employment action solely based on the conduct relating to an arrest unless the employer has a legitimate business reason for taking such action;
  • Employers shall not carry out a tangible adverse employment action solely based on an applicant's criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such action.

A legitimate business reason exists when an employer, based on information known at the time of an employment decision, believes in good faith that the nature of the criminal conduct underlying the conviction or pending charge:

  • Will have a negative impact on the applicant's fitness or ability to perform the position sought;
  • Will harm or cause injury to people, property, business reputation, or business assets.

Employers must consider the following factors in establishing a legitimate business reason for excluding the applicant from consideration:

  • The seriousness of the underlying criminal conviction or pending criminal charge, and;
  • The number and types of convictions or pending criminal charges, and;
  • The time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration, and;
  • Any verifiable information related to the individual's rehabilitation or good conduct, provided by the individual, and;
  • The specific duties and responsibilities of the position sought, and;
  • The place and manner in which the position will be performed.

Before taking adverse employment action, based solely on an applicant's criminal conviction record, the conduct relating to an arrest record, or pending criminal charge, an employer must first identify to the applicant the record or information on which they are relying, as well as hold the position open and provide the applicant a minimum of two business days to explain or correct the information.

The law explicitly rejects a private civil right of action for an aggrieved applicant, however complaints can be filed with the Seattle Office for Civil Rights (the Agency) which is charged with enforcement. Employers found to have violated the ordinance are subject to a notice of infraction and an offer of assistance from the Agency for the first infraction. For the second violation, the employer is required to pay a penalty of up to $750, and for the third violation, the penalty increases to up to $1,000. The monetary penalties are payable to the aggrieved applicant. Sanctioned employers also may have to pay the Agency's attorney fees.

Full text of the Seattle law

 


 

Washington, D.C.:

Effective December 17, 2014 employers with 11 or more employees cannot check an applicant's criminal records until after a conditional job offer is made. The prohibitions of this act don't apply under the following circumstances:

  • Where a federal or District law or regulation requires the consideration of an applicant's criminal history for the purposes of employment;
  • To a position designated by the employer as part of a federal or District government program or obligation that is designed to encourage the employment of those with criminal histories; or
  • To any facility or employer that provides programs, services, or direct care to minors or vulnerable adults.

The act limits the types of records that can be considered, prohibiting employers from inquiring about or requiring an applicant to disclose arrests that didn't result in a conviction with the exception of those that are pending judgment. In order to rescind a conditional offer of employment based on criminal history, employers must have a "legitimate business reason" and consider the following factors in coming to that conclusion:

  • The specific duties and responsibilities necessarily related to the position sought or held by the applicant;
  • The bearing, if any, of the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
  • The time which has elapsed since the occurrence of the criminal offense;
  • The age of the applicant at the time of the occurrence of the criminal offense;
  • The frequency and seriousness of the criminal offense; and
  • Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

If an applicant believes that the offer of employment was rescinded based on his or her criminal conviction history, the applicant may request (within 30 days after the adverse action) that the employer provide (within 30 days of the request):

  • A copy of all records procured by the employer in consideration of the applicant, including criminal records; and
  • A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

Filing an administrative complaint with the Office of Human Rights is the exclusive remedy and an individual has no private right of action in any court. An employer found in violation of this act could face penalties of at least $1,000 and up to $5,000, depending on their number of employees. The complainant will receive half of the awarded penalty.

Full text of the Washington DC law


 If you have questions about "Ban the Box" restrictions in your state, please contact us at info@hireimage.com