Ban The Box and Employer Lawsuits: Are you exposed?

Posted by Jeff Pelliccio on Feb 29, 2016 8:39:00 AM

In ICS insights

Employers Beware: The Ban The Box initiative and legislation could leave you exposed to lawsuits with hundreds of thousands of dollars in fines.

Started by Civil Rights groups and other advocates for ex-offenders, “Ban The Box” is a campaign that is gaining momentum (100 cities nationwide within 20+ states and counting). It is aimed at removing barriers to employment for those with a criminal history, specifically, questions pertaining to an employee's criminal background from job applications.  Ban The Box also regulates when and how you can ask candidates about their background. 

The Ban The Box initiative gets its name from the checkbox question on job advertisements, job applications and other employment pre-screening tools that ask “Do you have a criminal background?” or “Have you ever been convicted of a felony?”. The thought process behind the movement is that if a candidate is interviewed for a job without the potential employer’s prior knowledge of a criminal background, that candidate may be selected for hire based purely upon the interview and other professional history/credentials and therefore background discrimination may not occur.

Additionally, the belief overall is that excluding “The Box” will encourage the hiring of ex-offenders who are qualified while curtailing recidivism. Advocates believe that finding a job is a key step toward preventing people with criminal records from committing further crimes.

Commercial job posting websites such as LinkedIn, Indeed, CareerBuilder, are subject to the Ban The Box legislation, in addition to job posts placed directly on company websites within the human resources or careers sections. All of these job advertisements are banned from using language similar to “no felonies” or “must be able to pass background check.”

As an employer you might be wondering when you are allowed to discuss potential candidate backgrounds. It varies by state, for example in the state of New York you are only allowed to conduct an inquiry into a job applicant’s criminal history upon the extension of a conditional offer of employment. Our best advice is to look into the local laws within your state and city or seeking legal counsel to ensure you are not at risk of exposure.

So are you at risk?

If you are a multi-state employer the answer is likely yes.

If you are currently in the process of hiring fulltime, temporary, or contract employees it is becoming tougher to track various state and local laws on what is permitted to be asked on job applications, in job advertisements, and verbally in job interviews.

Have you determined how these laws apply to your organization?

Are you operating in any the 20 states that have activated these laws?

Have you worked with your Human Resources department to review and update all of your job applications and other hiring practices? 

Have you educated your internal hiring managers and recruiters about what questions they can ask?

Are you up to date with your local city laws such as NYC Fair Chance Act?

If you believe you are at risk of exposure to lawsuits pertaining to the Ban The Box legislation, it might be advantageous to source talent through a recruiter or staffing agency.

Organizations such as Infinity Consulting Solutions specialize in being ahead of such legislation, including the tracking of all local and state laws. As a result, we can go through the appropriate channels to ensure the talent we source to your firm is handled according to legislation but also vetted to ensure we are compliant of your policies, making you liability free as we assume the risk.

To learn more about Infinity Consulting Solutions, visit