A growing number of states and cities are passing some form of so-called “ban the box” laws, which restrict an employer’s ability to ask candidates for employment about their criminal history during the initial stages of the application process. These laws are not necessarily directed at employers’ use of criminal background checks as part of the employment screening process, but do reflect the negative nationwide perception of such screening techniques.
In 2010, Massachusetts became the second state to “ban the box” for both public and private employers. In Massachusetts, the restriction bars employers from including the question on the initial written application form. Employers may ask an applicant limited questions about his or her criminal history in an interview process.
New Jersey is now the latest state to enact “ban the box” legislation. Just last week, Governor Christie signed a bill that prohibits employers from : (1) requiring an applicant to complete any employment application that makes any inquiries regarding the applicant’s criminal record; and/or (2) making any oral or written inquiry regarding an applicant’s criminal record during the “initial employment application process.” The initial employment application process begins with the first inquiry from a prospective employee and ends after the conclusion of the employer’s first interview. After that, the employer is still free to inquire about criminal history or require the applicant to satisfy a criminal background check before extending an offer of employment.
While these laws seem fair on their face, employers that require applicants to complete written job applications as part of the initial interview process will have to conduct a detailed review of these applications to ensure that there is no “box” to check relating to criminal history. Likewise, employers subject to these laws will have to reevaluate their application process, including questions asked during initial interviews, to be sure that the subject of criminal records and history does not come up. With states being added each year to the list, we will be monitoring the New Hampshire legislature for possible ban the box bills.