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Heightened Restrictions on Use of Criminal Background History: What Employers Need to Know

Westlaw Journal Employment

In a sweeping movement to limit the use of a job applicant’s criminal history during the application process, many states and localities have adopted some form of “ban the box” legislation.

Ban-the-box refers to legislation that prohibits, among other things, employment application questions that ask whether an applicant has been arrested or convicted of a crime. The goal of the ban-the-box movement is to ensure that employers consider a job applicant’s qualifications without the stigma of a prior criminal history.

Over 90 percent of human resource professionals conduct some sort of background check during the hiring process. Nearly a third of American adults have been arrested by age 23. Studies have shown that applicants who indicate their criminal history on an initial application are less likely to receive a callback.

One study found that 34 percent of white applicants without criminal records and 17 percent of those with criminal records were later contacted for a callback interview. Among black applicants, 14 percent of those without a criminal record and only 5 percent of those with criminal records were later contacted for a callback interview.

By removing all criminal background questions from job applications and delaying background checks until later in the hiring process, proponents of ban-the-box legislation seek to provide applicants with criminal histories a better chance at obtaining employment.

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“Heightened Restrictions on Use of Criminal Background History: What Employers Need to Know,” by Brooke T. Iley and Joel Michel was published in Westlaw Journal Employment (Volume 31, Issue 16) on February 28, 2017. Reprinted with permission.