“Ban-the-Box” and “Fair Chance” legislation have seen steady growth throughout the country over the past two decades. The purpose of these laws, which began emerging in the early 2000s, is to reduce barriers to employment for individuals with criminal conviction records. Banning “the box” refers to eliminating questions about criminal history early in an application process. So-called “Fair Chance” laws typically seek to limit an employer’s use of criminal conviction information in its hiring decision process.
In subsequent years, legislation in many different jurisdictions arose, including federally. However, the federal law (the Fair Chance Act) only applies to public employers. The Act generally prohibits federal agencies and contractors from disclosing a criminal history record before the agency makes a conditional offer of employment. Private employers, on the other hand, have requirements at the state and local level. Although all these laws serve similar general purposes, their approaches have differed. As a result, the employer’s location within a state becomes highly relevant when ensuring compliance with criminal background history laws, especially because some of the laws that exist on the local level are more restrictive than their statewide counterparts.
Ban-the-Box and Fair Chance laws generally impose restrictions of three types: (1) the stage of the application process at which an employer may consider criminal background history (i.e., before the initial interview, during the interview, after the initial interview, or before a conditional offer of employment), (2) what nature of “crimes” may be considered in decision-making, and (3) how far back in time an employer may look to consider an applicant’s history. State and local laws also vary regarding the threshold number of employees required on site before an employer is subject to the law.
The State of Maryland is a prime example of how these provisions may differ depending on the location of an employer’s operations, particularly at the county and city level. Maryland enacted its Ban-the-Box law in 2020, following in suit after Baltimore, Montgomery County, and Prince George County, all of whom enacted theirs in 2014. The state law applies to employers with 15 full-time employees and limits the employer’s ability to inquire about an applicant’s criminal history until the initial interview. Both Baltimore and Montgomery have lower threshold requirements than the state law. Baltimore requires compliance from employers with 10 or more full-time employees while Montgomery requires compliance from employers with just one. Both also restrict questions on criminal history until after a conditional offer of employment. Prince George’s County also has a lower threshold requirement, but it also added that even after the initial interview, employers were prohibited from asking about or considering the following:
The trend of localities having different, sometimes stricter Ban-the-Box provisions than the state in which they sit is common throughout the country. For example, in Chicago, all employers are bound by their Ban-the-Box law, while the statewide ban only applies to employers with 15 employees. In Portland, Oregon, the employer may only ask about criminal history after they have made a conditional offer of employment, but in the state of Oregon an employer may ask about an applicant’s criminal history after they reach the interview stage. In Spokane, Washington, an employer may not ask about an employee’s criminal history until after the initial interview, while the state of Washington permits employers to ask after they are deemed “otherwise qualified” (this determination likely occurs after the resume or application review stage.) In the County of Los Angeles, California, employers may not ask about convictions that are more than seven years old, while the state of California has no per se lookback limitation.
It bears mentioning that reviewing a locality’s law is also imperative when the state itself does not have a Ban-the-Box law in place. Indeed, states such as Florida, Georgia, Iowa, Missouri, and Texas do not have Ban-the-Box laws for private employers, but they have localities within them that do. Other states such as Michigan and Pennsylvania have “Clean Slate Laws” (laws that, most notably, wipe certain convictions automatically from an individual’s record after their record has been clean for a certain amount of time), but cities within them still have outright Ban-the-Box laws.
Because the legislation around criminal history has only continued to grow and evolve since the concept was introduced, it is critical for employers to keep a watchful eye on this area to avoid liability. Therefore, employers’ continual review of their hiring process is recommended—beginning with the application itself and ending with the hiring decision.
For employers considered “public” or government employers, compliance with the Federal Fair Chance Act may be required along with applicable state and local laws. Both public and private employers will need to determine if the state and locality in which they sit have a Ban-the-Box law. If your state or locality does have a Ban-the-Box law, determine whether you have the threshold number of employees that would require you to comply with the law (this is where the differences between the localities and the states may begin to appear.) Next, determine at which step you can ask about or consider an employee’s criminal background history, if at all. And lastly, be sure to review if there are some criminal history questions that are always restricted no matter at what stage.
Robert T. Quackenboss is a partner with Hunton Andrews Kurth LLP in Washington, D.C. rquackenboss@HuntonAK.com.
Raychelle L. Eddings is an associate with the firm in Washington, D.C. reddings@HuntonAK.com.
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