The history of "ban the box"

In 1998, Hawaii was the first state to pass "ban the box" legislation. The cities of San Francisco and Boston followed suit with local ordinances in 2005, and groups like NELP and All Of Us Or None became active in pushing for "ban the box" legislation.

Since then, the movement has grown quickly: Currently there are 13 states and close to 70 communities that have adopted some type of "ban the box" legislation. Some states and communities limit the law to public-sector employers, but in many places, the "ban the box" laws apply to private companies as well.

In addition, some large corporations have opted to remove questions about criminal records from their job applications, reserving such background checks for later in the hiring process. Target, Wal-Mart, and Bed Bath and Beyond are three large retailers who have removed the box asking about criminal records.

The federal government has also weighed in: In 2012, the United States Equal Employment Opportunity Commission issued a guidance that tightened the way employers can ask about criminal backgrounds and set standards to prevent employers from discriminating against those with criminal records, especially in the case of minority applicants. Specifically, employers cannot have blanket bans on hiring applicants with criminal records.

Employers raise questions

Although "ban the box" has found support in large metropolitan areas and among some large businesses, many business groups and employers — especially small businesses — have raised concerns. Some have said a requirement to remove the criminal record checkbox could lead to legal liabilities down the road.

A current case in Syracuse, New York, where the city council is considering a "ban the box" provision, has led CenterState CEO, a local business association, to question whether such rules would result in "unfunded and unenforceable mandates."

Christa Glazier, vice president of communications for CenterState CEO, says that her group is willing to work with local governments to address issues around hiring people with criminal records, but added that some of the group's members are concerned about possible unintended consequences of "ban the box" legislation.

"There is an understanding that we do need to find employment opportunities for all members of our communities," she says. "However, we've heard from some businesses that this is time and energy and effort that they have to spend. After multiple stages of interviewing, if they find something significant that would prevent a hire, then they've wasted that time. For a small business owner, that's valuable time."

Businesses can still check backgrounds

Supporters of the "ban the box" movement stress that they are not preventing employers from asking about criminal records, just moving that inquiry further back in the process, giving job seekers a chance to at least be interviewed and put forward their qualifications.

"It's not that your hands are tied," Rodriguez says. "You still need to hire the person most qualified for the job." She adds that many businesses that initially oppose "ban the box" end up accepting it once they are educated on its benefits and ease of implementation. Rodriquez says her group has seen little downside for employers.  "I have not heard, in the years since ["ban the box" laws] have been in place in different locations, any legal liability or litigation that has arisen."

Kathryn Helmke, HR government affairs director for MRA, a Waukesha, Wisconsin-based employers association, says her group has not heard a lot of complaints about "ban the box" legislation. MRA has many members in Minnesota, a state that adopted "ban the box" legislation for public sector employers in 2009 and expanded the law to cover private companies in May 2013.

MRA, which has 4,000 members and bills itself as the largest employer association in the Midwest, has spent the last few years educating businesses in Minnesota about "ban the box" laws. The organization takes no official position on the concept, but has kept its members up-to-date on how to comply with the new law.

Helmke notes that "ban the box" was passed with bipartisan support in Minnesota. She says that although many companies were concerned about the law at first, those concerns seem to have faded.

"During 2013, we had numerous questions on what the law means for Minnesota employers," she says. "In 2014, it's completely dropped off."

However, Helmke says she could see possible problems when communities adopt "ban the box" regulations that have slightly different requirements than ordinances in other nearby communities.

"You may have differences in municipalities in the same geographic region or the same state. So there may be concerns about competitiveness," she says. "In a statewide initiative, where it's a level playing field, the argument is sort of moot."

An unstoppable movement?

The rapid spread of "ban the box" legislation to cities and states around the country have some observers calling it a "viral" movement. Rodriguez doesn't go that far, but she says there has been strong support for the idea.

"It really has grown tremendously since the early 2000's — even exponentially in the last few years," she says.

Rodriguez attributes the growth of the "ban the box" movement to a simple question of fairness.

"It resonates on a commonsense level," she says. "This is an effort to show that if we believe in second chances, if we believe in fairness — which are core American values — then we should ensure that individuals are at least able to get their foot in the door, to prove that they are qualified to do the job."