While many job applicants may not think twice about checking “no” when asked if they have ever been convicted of a
One in three Americans — or 77 million — has a criminal record, according to the National Conference of State Legislatures. Yet as employers look to grow their talent pool, these candidates often get overlooked. "Ban-the-box" laws, which ban employers from asking about an applicant’s criminal record before at least the initial interview, are hoping to rewrite the hiring process.
Today, 37 states and over 150 cities and counties have adopted these laws. The hope is that the legislation will break down barriers both during the job hunt and in the way society views those with a criminal background, says Fernanda Anzek, managing director of HR and DEI services at Insperity, an HR resources provider.
“Since there’s no federal law, ban-the-box is really a national campaign,” Anzek says. “The goal is to remove the stigma associated with someone’s background, and give all applicants a fair chance at employment.”
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Ban-the-box laws trace back to 1998, when Hawaii passed a law that prohibited employers from considering a candidate’s criminal history until they were given a job offer. A decade later, Minnesota adopted a similar law, officially putting the campaign into motion. Now states like California, Connecticut, Massachusetts, New Jersey, New Mexico, Rhode Island and Washington have adopted a “fair chance” policy.
Ban-the-box has even reached federal hiring practices, with the Fair Chance to Compete for Jobs Act of 2019 becoming effective in December 2021. This act will prohibit most federal agencies and contractors from asking about an applicant’s arrest or conviction record up until a job offer is made.
These laws could have far-reaching implications, especially for Black and non-white Latinx Americans, who are disproportionately incarcerated — The Sentencing Project estimates that for every one white American incarcerated, five Black Americans are jailed. However, Anzek notes that ban-the-box laws can only go so far as to remove biases from the job application process. Interviewers have to change their approach too, she explains.
“It’s not just about the question being in the application,” says Anzek. “It shouldn’t be in the interview process [either]. Even if you remove the box, your interviewers may still ask that question upfront, which is arguably not allowed, depending on the law.”
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At Insperity, interviewers received continuous training on how to conduct fair interviews for all candidates without unconscious biases getting in the way. For example, interviewers ask a standardized set of questions to every applicant, relevant to the role. This list tends to focus on behavioral-type questions, which allows the candidate to share how they faced challenges based on previous experience, and what they may have learned.
“Ask candidates about a time they had multiple things on their plate or had a tight deadline,” says Anzek. “When you ask these kinds of questions, candidates get a chance to share how they behave and what they have learned.”
Anzek underlines how these questions can call back to potential life hurdles, while still being relevant to the role's qualifications and responsibilities. In other words, ban-the-box laws don't allow employers to immediately place weight on an experience that may be irrelevant to the candidate's current capabilities.
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“If somebody checks that box, you’re automatically moving them to the not-going-to-interview pile,” Anzek says. “Sometimes whatever occurred to an individual that makes them check the box is completely unrelated to the role or qualifications.”
Anzek expects ban-the-box laws to extend to even more regions in the U.S., especially in light of the Great Resignation, which is forcing many employers to rethink how restrictive their candidate pools are. As for employers looking to walk the DEI talk, Anzek encourages them to consider adopting ban-the-box policies without a law in place.
“We’ve seen employers choose to adopt these policies across the board,” says Anzek. “It’s giving employees the chance to be considered equally for positions no matter what the history is there.”
