This month with Illinois Governor Pat Quinn signing the Job Opportunities for Qualified Applicants Act, Illinois became the latest state to join the “ban the box” movement. This Illinois law will take effect on January 1, 2015, when it will become illegal for Illinois employers (with 15 or more employees) to question, require disclosure, or to consider an applicant’s past criminal history until later in the hiring process. That means for Illinois companies, asking job applicants a question about their criminal history on the initial job application will be forbidden starting next year.

Illinois is now the fifth state to ban private employers from asking questions regarding criminal history on job applications. Hawaii, Massachusetts, Minnesota, and Rhode Island are the other four states that ban private employers from asking similar questions. There are currently eight states that prevent criminal history questions from being asked on public or state job applications (California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nebraska, and New Mexico).

The “ban the box” movement has been gaining traction over the past decade, especially since the EEOC (Equal Employment Opportunity Commission) issued its guidance on the use of criminal background checks on April 25, 2012. Although the EEOC does not regulate the FCRA (Fair Credit Reporting Act – the law that governs employee background checks), the EEOC can initiate an EEOC investigation if they feel that Title VII is being violated, i.e., if your company’s employee background check policy is creating a “disparate impact”, causing discrimination against any protected class. The EEOC guidelines recommend that employers not ask criminal conviction questions on job applications.

In addition to the ban the box states listed above, there are more than 60 cities that have local laws also restricting questions regarding criminal history on initial job applications. Given the growing trend to “ban the box” and the EEOC guidelines, it would seem to be prudent to defer these questions until later, either during the actual interview process or at the time of a job offer. It should be noted that ban the box states (in those jurisdictions that have these laws) do not prevent an employer from performing a background check on an employee applicant. These laws just mandate that the employer not ask any question regarding criminal history on the initial job application, but instead defer those questions to later in the hiring process.

Posted by: Rudy Troisi. President, Reliable Background Screening.