ban the box lawsBan the Box Laws Finally Adopted by Virginia

Virginia has recently been added to the list of states who have adopted ban the box laws on state employment applications. On January 19, 2018, the Virginia Senate voted 23 to 16 to prohibit the State from asking on employment applications about previous criminal arrests and/or convictions.

The philosophy behind the “ban the box” laws is that an applicant’s qualifications must be considered in employment decisions first and foremost due to the stigma associated with a criminal record. “Fair chance” initiatives also allow an applicant to proceed with their application process without having to answer any questions on the application about previous criminal arrests and/or convictions.

Employers do not have the option to inquire during the interview phase of the employment process. In a majority of the “ban the box” jurisdictions, it states that a conditional job offer must be made to a candidate before inquiring about previous criminal records.

Virginia joined a total of 30 states that have enacted ban the box laws:

  • Arizona (2017), California (2017, 2013, 2010), Colorado (2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2015), and Wisconsin (2016)

Ten states have placed restrictions on private employers when it comes to “ban the box” laws:

  • California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont

Thirty cities, including the District of Columbia, have required government contractors to comply with fair chance hiring practices.

This follows President Obama’s endorsement in 2015 of the ban the box laws. Sixteen of those locations encompass fair chance hiring laws to private employers:

  • Austin (TX), Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), District of Columbia, Los Angeles (CA), Montgomery County (MD), New York City (NY), Philadelphia (PA), Portland (OR), Prince George’s County (MD), Rochester (NY), San Francisco (CA), Seattle (WA), and Spokane (WA)

After including the 30 states and over 150 counties and cities, 230 million people or just over two-thirds of the US population remain in a jurisdiction that has removed barriers to employment by passing fair chance initiatives. Employers are also adopting the 2012 Equal Employment Opportunity Commission (EEOC) “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The guide specifically focuses on employers utilizing only compliant and accurate criminal convictions when making employment decisions, and assessing certain factors (green factors) when deciding to hire an applicant with a criminal record.

  • Nature and gravity of the offense or conduct
  • Time that has passed since the offense, conduct, and/or completion of the sentence
  • Description and responsibilities of the job held or sought

As this is a fluid movement, new laws are being implemented from various jurisdictions constantly affecting employers with different employee population and locations. Employers that are currently not affected by “ban the box” laws should be proactive and eliminate any questions on an employment application inquiring about previous criminal convictions.

It is encouraged for organizations to evaluate the current service offerings from their third party vendor to ensure compliance with “ban the box” laws and fair chance initiatives.