‘Ban-the-Box’ Laws on the Rise

Date: November 14, 2014

Concerns over workplace security grow as employers are prevented from conducting pre-interview background checks.

While NFIB members are already struggling with the management restrictions enforced by Obamacare, another onerous type of hiring regulation is spreading: “ban-the-box” statutes that are meant to protect convicted criminals from discrimination in applying for jobs.

At latest count, 13 states and dozens of U.S. localities have begun prohibiting employers from asking about a candidate’s criminal background until after an interview. The states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico and Rhode Island. And ban-the- box backers are agitating for wider adoption.

Concerns over workplace security and skyrocketing litigation costs have made pre-employment background checks an essential tool for many businesses—large and small. Background checks also help prevent lawsuits against companies over negligent hiring in cases in which an employee’s actions harm someone else. 


Some employers are legally required to conduct background checks for certain jobs, especially in healthcare and child care where there are big liability ramifications. Beth Clemons, for instance, manager/dispatcher of Clemons Coaches in Waseca, Minnesota, told NFIB that conducting background checks is vital to the trust placed in the company by public schools and the parents of the students whom it transports. “Running a background check is about protecting our clients, who in our case are kids,” she says. “We make sure that who we hire is who they say they are.”

Enforcing that simple hiring principle is getting more difficult for small business owners. Support for ban-the-box laws comes from advocates of ex-prisoners who believe former criminals don’t stand a chance of returning to the good side of society if they’re shadowed by past convictions.

Their cause has been bolstered by the Equal Employment Opportunity Commission, a federal agency that changed its interpretation of a crucial legal principle concerning this issue in 2012. EEOC long held that a hiring policy that treats blacks or Hispanics with criminal backgrounds differently from their white counterparts is illegal discrimination, under the idea of “disparate treatment.”

But the agency’s new standard is called “disparate impact,” meaning that it doesn’t matter if an employer applies a policy—such as checking criminal backgrounds—equally. That practice is illegal if it harms members of a protected minority more than others, unless the employer can prove the disparities are unavoidable as a business necessity.

Nine state attorneys general have sued the federal government for overreaching. In a letter, they stated they were troubled that EEOC’s “true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of [discrimination] protection to former criminals.”

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