The “Ban the Box” background check movement has progressively become more common throughout the U.S. over the past few years, with over 100 states and cities adopting them, including major retailers such as Target and Wal-Mart. According to the National Employment Law Project, the “Ban the Box” initiatives provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring process. While there are currently 19 states that have adopted the policies to date, “Ban the Box” may become a federal mandate in the near future, depending on a new bill that was recently introduced in the U.S. Congress.

First Federal “Ban the Box” Bill Introduced in Congress

On September 10, a bi-partisan group of lawmakers in both houses of Congress introduced the Fair Chance Act, which would prohibit federal agencies or contractors from asking prospective employees about whether they have a criminal record before a formal job offer has been extended. The proposed law, however, includes exceptions for “sensitive positions,” including law enforcement, national security, and positions with access to classified information.

“There are millions of Americans with records who are quickly passed over by employers without considering their skills or qualifications because of their history,” said Senator Cory Booker in a press release. “The Fair Chance Act seeks to dismantle this unfair barrier in federal hiring to ensure these Americans are given a second chance and a fairer shot at making a better life for themselves.”

Why “Ban the Box?”

While the Fair Chance Act would only affect federal agencies and contractors, private employers should still comply with local and state “Ban the Box” laws, where applicable. There are currently over 100 jurisdictions with “Ban the Box” and fair chance policies, so it’s important to know whether your organization is affected by these ordinances. Over the years, this movement has become increasingly more common, and even national private employers such as The Home Depot and Starbucks have adopted policies. Of the 19 states that have adopted “Ban the Box” policies, seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island—have removed the conviction history question on job applications for private employers.

“Ban the Box” compliance can become more complex if your organization has multiple locations. If you are a private healthcare system with facilities in New Jersey and Maine, for example, not all of your facilities would fall under the same state laws. As an organization, you would be faced with the decision of whether to use separate job applications for each state, or adopting a uniform application that would comply with all jurisdictions.

‘Ban the Box’ and Background Check Compliance

In today’s workplace environment, it’s critical that background check policies incorporate the 2012 U.S. Equal Employment Opportunity Commission guidelines that advise employers to make individualized assessments instead of using blanket exclusions. If your organization is considering updating your current policies and hiring procedures, PreCheck’s Vice President of Compliance, Vu Do, wrote a white paper discussing the practical implications of the EEOC’s background check guidance. Background check compliance can be tricky, but by reviewing the latest best practices and consulting with legal counsel, you can help achieve compliance at your organization.