Does Ban The Box Apply to Contractor Networks? Everything You Need to Know

Background Screening | Industry Information | March 17, 2021

If your organization directly hires employees or contractors in the United States, you should be aware of city, county, and state legislation, commonly known by the name of “Ban the Box” or “Fair Chance Hiring.”

The name ‘Ban the Box’ refers to eliminating the check box on job applications that asks if the applicant has been convicted of a crime; however, this movement to improve standard hiring practices has expanded to change more than just the check box.

Keep reading to learn more about what the Ban the Box movement is, and how it can impact the management of your contractor and vendor network.

Background of Ban the Box

The Ban the Box movement seeks to open opportunities for individuals with past criminal convictions and promote fair hiring practices by eliminating restrictions on individuals who may otherwise be excluded from consideration because of their criminal record history. This movement has also given rise to the more common term of “fair chance hiring.”

Through Ban the Box protections, individuals are meant to be considered for opportunities based on their work experience, skills, and education; with the criminal conviction considered only later in the process. The Equal Employment Opportunity Commission (EEOC) contends that if employers have access to criminal conviction history, they will use it in their assessment. The desire is to focus on an individual’s suitability for the role before criminal record information is considered.

When originally launched, these initiatives prohibited questions about past criminal convictions, most typically on the application form, and specifically at issue is the question, “Have you ever been convicted of a criminal offense for which you have not received a pardon?” Under most Ban the Box legislation, the restriction applies only to when the information is gathered and is not a complete ban on obtaining criminal record information. Additional requirements may be imposed at the application, interview, job offer, or hiring stage. The EEOC opposes the blanket use of criminal record information in hiring decisions and has promoted individual assessment and consistent processes to review criminal record details for many years.

The Current State of Ban the Box

Currently, 15 states and more than 20 cities or counties have legislation in place for private employers to consider the applicant’s job qualifications before reviewing their criminal record. There is no federal statute or legislation at this time, but that may come.

Originally, the Ban the Box requirements were limited to simply banning a question on job applications; however, the current state has resulted in much more far-reaching requirements and most importantly, has created many implications for the hiring and engagement process of individuals.

Some of these notable changes include:

• A patchwork of regulations exists at the county and state levels, and some individuals may be subjected to multiple, or even conflicting, requirements.
• If you decide to not engage an individual because of their criminal record history, there may be additional steps required such as specific notices, providing opportunities to dispute information, or waiting periods before adverse decisions may be made.
• Limitations on the type and scope of data that may be reported.
• For example, misdemeanors older than 3 years may not be reported in Massachusetts, or arrest information may not be reported if it does not result in a conviction in Kansas City, MO.
• Ban the Box legislation does not preempt the need to comply with other legislation such as Fair Credit Reporting Act (FCRA) and state consumer reporting legislation.
• More specific documentation and deliberate consideration of how decisions are made and what those decisions are based on, especially in cases where the individual may not be eligible.
• The opportunity for additional consideration, often called an “individualized assessment,” is often a key component of compliance. This individualized assessment process allows a candidate to provide evidence that a conviction is not related to his or her ability to perform a job and allows for the opportunity to determine whether a criminal record is specifically related to the position being applied for. Oftentimes, this is supported by such information as career history, ability to remain conviction-free for some period, character references, and other evidence of rehabilitation or suitability.

Why Should You Care?

The Ban the Box movement has resulted in notable changes to the standard background check process. It has changed what can legally be reported, or considered, may elongate the screening process time, or create other obligations during the hiring process.

While PlusOne Solutions’ standard background screening process already advocates for and protects the individual’s privacy and right to a fair process, much of the background checking process occurs with each organization and not just PlusOne Solutions.

Our team has always supported an individual assessment of potentially adverse information, with opportunities for individuals to review, dispute, and/or correct the information about them before a final decision is made, specifically when it may have an adverse impact.

We fully expect additional jurisdictions to enact such legislation to respond to EEOC guidance on criminal record reporting, to protect job applicants and to get Americans back into the workforce, and boost the economy.

The most important thing to keep in mind is that the Ban the Box movement does not prohibit criminal record checks. Organizations are still able to conduct criminal record checks as part of the hiring process. The ask is simply that the background screening results be reviewed with an understanding of whether, and how, that record may be relevant to the role the individual will hold. A criminal record, in itself, should not disqualify someone from a job opportunity. The nature and gravity of the offense, the length of time since the offense happened, the age of the individual at the time, and the responsibilities of the role are all factors that should be considered when making a hiring decision.

Individuals are more than their criminal record and for various reasons, individuals may find themselves in situations that need further explanation. The opportunity to obtain this additional information, which can be considered before disqualifying a candidate, is a simple way to continue to conduct criminal record checks and remain compliant with Ban the Box requirements.

For more information about how the Ban the Box movement can impact your hiring process, reach out to us for a consultation.

Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel with respect to their obligations and use of PlusOne Solutions services.

You may also be interested in:

• Reducing Bias in the Background Screening Process: Our Commitment to Social Justice
• Contractor Background Check Program Best Practices You Should Be Following

About PlusOne Solutions

PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments.