State Ban-the-Box Laws
Each year employers must navigate an ever-growing field of labor and employment-related laws to ensure compliance. In recent years, the presence of statewide “ban-the-box” legislation has grown significantly. These “fair chance” laws provide applicants a fair chance at being considered for a job by prohibiting questions about the applicant’s conviction history on the job application and delaying the background check until later in the hiring process.
Currently, there are 19 states that have adopted fair chance policies prohibiting public employers from asking about an applicant’s criminal history on job applications — California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, and Virginia. Seven of these states – Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island – extend fair chance requirements to private employers.
City and County Laws
There are also over 100 cities and counties that have adopted fair chance hiring laws. Of these, currently 14 localities – Baltimore, Buffalo, Chicago (also statewide), Columbia (MO), Montgomery County (MD), New York City, Newark (also statewide), Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, and Washington D.C. – extend fair chance policies to private employers.
State and Local Law Overlap
Not surprisingly, some employers may face different obligations under state and local law. For example, Newark’s ban-the-box law has been superseded by New Jersey’s statewide ban-the–box law. Yet, in Illinois and Oregon private employers need to consider both state and local law in addressing the issue of criminal background checks.
A key difference between Illinois and Chicago ban-the-box laws is that Illinois law only applies to employers with 15 or more employees. Chicago’s ban-the-box ordinance extends the state’s restrictions to all employers that operate in the city regardless of size.
By comparison, Oregon’s ban-the-box law that goes into effect January 1, 2016, applies to all employers regardless of size. Portland’s ordinance, which also goes into effect January 1, 2016, applies to employers with six or more employees. The key difference is that Portland law prohibits covered employers from considering a job applicant’s criminal history prior to a conditional offer of employment. State law only prohibits employers from requiring disclosure of criminal convictions prior to an initial interview.
It is likely that other states and municipalities will continue to pass overlapping ban-the-box laws. Where state law preemption is not made clear, covered employers should consider compliance with the more restrictive law, even if it is on the local level.