Ban the Box / Fair Chance Hiring

Many employment applications ask job applicants to check a box to indicate if they have a criminal record. “Ban the box” policies prohibit this practice, so employers look at a job candidate’s qualifications first and only ask about criminal history later in the process, if necessary. These policies can eliminate one of the many barriers to economic security faced by people with criminal records. The United States has the highest incarceration rate in the world; the vast majority of those incarcerated are nonviolent offenders, and Black, Latinx, and Native American people are highly overrepresented in the jail and prison population. This system is a major structural barrier to racial and economic inclusion because a criminal record can hinder employment for formerly incarcerated people. Previous incarceration is associated with a more than 40 percent reduction in annual earnings, reduced wages, and higher rates of unemployment.

Holding a steady job reduces recidivism and makes it easier for formerly incarcerated people to successfully return to society and make positive contributions to their communities. Critics have suggested that banning the box could unintentionally increase racial discrimination among employers, but evidence shows that ban the box policies do increase employment among people with criminal records and serve as an essential strategy to address the long-term inequities of racial bias in the criminal justice system. One study found that putting 100 formerly incarcerated people back to work would increase their tax contributions by $1.9 million and boost sales tax revenue by $770,000 over their lifetimes. Ban the box works: in the first three years after Durham, North Carolina, banned the box for public employment applicants, the share of new hires with criminal records increased dramatically, from about 2 percent to more than 15 percent.

In addition to the PolicyLink resources listed on the right, see the National Employment Law Project, All of Us or None / Legal Services for Prisoners with Children, and Ban the Box Campaign for more resources related to ban the box policies.

• Elected officials and government agency staff can enact ban the box policies through an ordinance, resolution, administrative memorandum, or executive order. Several states have also passed statewide legislation.
   
• Business leaders can pledge to remove barriers to employment for formerly incarcerated people in their hiring processes.
   
• Residents and community-based organizations can organize advocacy campaigns to urge policymakers and business leaders to ban the box.

Fair-chance hiring policies that ban the box on employment applications should include robust enforcement mechanisms and are most effective in concert with a suite of reentry supports for formerly incarcerated people. Cities considering these policies should consult with those returning to the communities and voice their concerns and experiences while considering related legal and logistical issues.

• Scope of coverage: Most fair chance policies apply only to public employment, some extend to government contractors, and in nine states and 15 cities and counties also include private employers. The strongest policies apply to all employers. Several large private companies have independently banned the box as a matter of corporate policy.
   
• Choosing an approach: City policies might be enacted through an administrative order, ordinance, or resolution (although policies passed by resolution or administrative order might cover government employees only).
   
• Maximizing impact: Banning the box removes the question about criminal convictions from job applications, therefore delaying employer inquiries about an applicant’s record. Fair-chance policies could include local and targeted hiring provisions to positively connect job seekers with opportunities.
   
• Transparency: Some ban the box laws affect more than the application form. They may require employers to notify applicants about their decisions in adverse action letters and give applicants time to respond. Employers might also be required to specify whether a criminal history will be reviewed and for what purpose.
   
• Complementary efforts to facilitate reentry: Securing employment is one of many issues facing people with criminal records. Fair-chance policies should be paired with restorative justice efforts, workforce training, job placement and retention assistance, other support services, and voting rights for citizens with felony convictions to fully participate and contribute to their communities.

More than 150 cities and counties, along with 37 states and the federal government, have adopted ban the box policies in recognition of the disastrous effects that systematically excluding formerly incarcerated people can have on their families, communities, and the economy. At the Federal level, The Fair Chance to Compete for Jobs Act or Fair Chance Act of 2019 prohibits federal agencies and contractors from requesting a criminal background check from a job applicant before extending the applicant a conditional offer.

• In 1998 Hawaii was the first state to pass ban the box policies. In 2020 the state further refined the legislation to limit the scope of inquiry that employers can pursue to a person’s record within the past ten years.
   
• In 2016 the State of Louisiana passed a Ban the Box Act that applied to state government hiring practices – this is especially significant given that Louisiana has the highest incarceration rate of any state in the country. This was followed by the City of New Orleans, which passed a Ban the Box ordinance for the city hiring process.
   
• The City of Birmingham, Alabama, passed a ban the box ordinance in 2016 to ensure that city job applications do not ask about criminal convictions and to delay any background checks until later in the hiring process. The executive order of the mayor established the policy. Alabama has one of the highest incarceration rates in the nation, and local advocates noted that barriers to employment increase the likelihood that formerly incarcerated people will return to prison, to the detriment of local economies and local communities.
   
• A San Francisco policy bans discrimination in public and private employment and affordable housing. All of Us or None (AOUON), a national civil rights organization of formerly incarcerated people and their families, started the first ban the box campaign as a statewide effort in California. Members identified job and housing discrimination as barriers to successfully returning to their communities after incarceration. The campaign initially focused on hiring practices at government agencies, and their advocacy resulted in the passage of California legislation that bans the box for public-sector employers. San Francisco’s Fair Chance Ordinance is one model of a comprehensive fair chance policy that requires private employers, city contractors, and some housing providers to consider applicants based on their merits first, not on their past mistakes.