To prevent job applicants with criminal records from automatic hiring rejection, cities and states are considering and already adopting so-called “Ban the Box” laws and ordinances. Among the states that have adopted such a law are Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico, and the cities of Atlanta, Baltimore, Chicago and Philadelphia. Among the states mulling such legislation are Rhode Island and Nebraska, and the city of Pittsburgh.
This Alert lauds the policy considerations behind “Ban the Box” type of legislation but points out how it can unintentionally create impossible-hiring decisions and pose huge legal risks for employers.
“Ban the Box” legislation, as discussed in the “Philadelphia Joins the Movement To Ban Inquiries into Arrests and Convictions on Employment Applications,” restricts and, in Philadelphia and other locales, limits covered employers from asking about an applicant’s criminal record during the hiring process. The laws in Connecticut, Hawaii, Minnesota, New Mexico, and Massachusetts, and the bill proposed in Rhode Island, forbid covered employers from asking an applicant about a conviction until after assessment of his or her qualifications for the job. Though the laws in Connecticut, Minnesota and New Mexico apply only to public (meaning government) employers, there is mounting support to amend them to cover private employers, as in Hawaii, Massachusetts, and Philadelphia.