A recent survey by another employment screening agency claims that fewer employers are requesting information about candidate’s criminal histories. Results show that 20% of respondents reported they DO NOT ASK candidates about their criminal histories. That’s a whopping 13% change from the previous year the study was taken.

Another 5% of employers answered they use another option entirely. That still leaves 75% of employers who ask applicants to divulge their criminal history at some point during the hiring process.

Proof?

These results, although compiled and analyzed by one of our competitors, may offer insight into how well the ‘Ban the Box’
movement has taken root across America. Spearheaded by All of Us or None, Ban The Box aims to eliminate questions about criminal convictions from job applications. Ban The Box advocates claim that asking questions about criminal convictions is discriminatory. Essentially, they want to keep the past in the past. Considering that the National Employment Law Project (NELP) estimates 70 million Americans – or one in four adults – have a criminal record that may show up in a background check, it’s a movement with far-reaching impact.

NELP reports: “There are a total of 18 states representing nearly every region of the country that have adopted the policies —California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). Seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have removed the conviction history question on job applications for private employers, which advocates embrace as the next step in the evolution of these policies.”

Confusion?

While the endgame seems clear – allowing more well-meaning and qualified applicants with criminal records to get jobs – some employers still seem confused about when, or if, they can ask questions about a candidate’s criminal history. This is an essential
 argument to suss out because investigating an applicant’s criminal history is a critical component to any thorough background check and helps to ensure the safety of your current workforce and your customer base.

Employers are also being confused by Equal Employment Opportunity Commission guidelines and are becoming increasingly fearful of finding themselves on the wrong end of costly class action lawsuit.

Help?

Here’s what you need to know:

  • Employers in states, counties and municipalities that have adopted ‘Ban the Box’ can not, by law, ask applicants to divulge if they have a criminal history on a job application
  • EEOC guidance recommends all employers follow this procedure, whether or not ‘Ban the Box’ has passed in their jurisdiction
  • Regardless of ‘Ban the Box’ law, some regulated industries still require criminal history information from the outset of the application process
  • Other compliance laws, like getting an applicant’s written signature to consent to a background check, are not affected by ‘Ban the Box’ laws.


We understand that this is confusing and leaves many employers floundering to figure out their rights during the hiring process. That’s a bitter pill to swallow for many small businesses who simply can’t afford a full-time Human Resources professional or to keep an employment attorney on retainer. And, we also know that time is money when it comes to processing new hires.

We’re here to help. Active Screening’s team of experts are happy to talk with you anytime about rules and regulations, and policies and procedures of employment screening law. You can find out more about our incredible team here.

Feel free to comment below or drop us an email or Tweet us here, too. Happy Hiring!

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