States, Advocates Push Beyond Ban-the-Box for Hiring Ex-Felons

Lawmakers’ efforts to boost the job prospects of people with criminal convictions have begun moving beyond widespread ban-the-box measures, as advocates push for broader fair-chance hiring laws and stronger enforcement by labor agencies.

Ban-the-box laws have been adopted in 17 states plus the District of Columbia, as well as 21 cities and counties. They prohibit public and private employers from inquiring about job applicants’ criminal histories on the initial job application, or sometimes until after the employer has conducted an interview or made a conditional offer of employment, with exceptions for law enforcement and other sensitive positions. Many more states and cities have similar laws covering only public-sector jobs.

Ongoing litigation—some of which resulted in millions of dollars in settlements with companies like DHL Supply Chain, Macy’s Inc., and Target Corp. to resolve bias claims over hiring policies—have exposed the limitations of these measures. While ban-the-box laws have increased callback and hiring rates for people with criminal records, advocates say employers still continue to discriminate at every stage of the hiring process.

But a first-of-its-kind lawsuit brought by California’s Civil Rights Department last month against Ralphs Grocery Company, and legislative developments such as New York’s passage of a “clean slate” law, suggest states could be moving in the direction of enacting and actively enforcing stronger fair-chance hiring policies.

A ban-the-box law doesn’t prevent employers from conducting a background check and denying the applicant later based on its results, said Ken Oliver, executive director of the Checkr Foundation, the advocacy arm of background check technology company Checkr.

“We are making some traction” at moving beyond ban-the-box, said Oliver, who’s also Checkr’s vice president of corporate social responsibility . “It is a law that had great intention, but it simply hasn’t been realized.”

Multiple Approaches Needed

The limitation of ban-the-box is spurring a growing push for broader fair-chance hiring policies such as the Clean Slate Act, which passed in California and more recently New York. This law, though it varies by jurisdiction, generally requires states to automatically seal or expunge a person’s criminal records for certain crimes once a set number of years pass after the completion of their prison term.

Regardless of the laws’ varied impact, both are needed to weed out bias against job seekers with criminal records, said Beth Avery, a senior staff attorney at the National Employment Law Project.

Prohibiting employers from rejecting job applicants with criminal records is a crucial first step to help pull back longstanding collateral consequences of mass incarceration and rebuild lives to avoid the cycle of recidivism, Avery said.

Ban-the-box and clean slate laws “ensure people are able to be judged first by their qualifications,” she said.

Although far from universal, clean slate laws are enjoying growing support from businesses like JPMorgan Chase, in part because of a need to create career pathways for an historically untapped pool of candidates to expand the labor force.

Restrictive hiring policies dating back to the “tough on crime” era and related stigma against hiring formerly incarcerated job seekers have cost the country at least $78 billion in lost gross domestic product, a study by the US Chamber of Commerce found.

State of Play

Legislative efforts to enact clean slate laws have been gaining momentum in recent years. New York late last year joined 11 other states, including Colorado, New Jersey, and Oklahoma, to enact such laws, according to the Clean Slate Initiative, a bipartisan nationwide campaign that supports these measures.

Meanwhile, there are active grassroots efforts in Illinois, Missouri, and a handful of other states.

But the enforcement of ban-the-box and other types of second-chance hiring laws has been sparse, whether by state agencies or private litigation, some advocates said.

They’re hoping that the California Civil Rights Department’s Dec. 21 lawsuit, which accuses Kroger Co. subsidiary Ralphs Grocery Co. of illegally asking job candidates about their conviction history and repeatedly disqualifying applicants based on prior convictions, could inspire more enforcers of state anti-bias workplace laws to step up efforts.

“That’s obviously completely necessary” because relying on private litigation puts too much burden on plaintiffs with criminal records who are already skeptical of the justice system, Avery said. “Asserting your own rights is difficult for any worker. It’s costly, and it’s a burden when you’re worried about retaliation from the employer or other employers.”

People with criminal records “have had a negative and often traumatizing interaction with government, so they’re often not eager to” file a complaint with a state agency or sue in court, Avery said. “So I think it’s important for there to be strong enforcement, agency-directed investigations of these laws like we’re starting to see in California.”

While the Ralphs case is the state agency’s first major litigation under the Fair Chance Act, the Civil Rights Division and its predecessor agency have conducted hundreds of investigations and reached about 70 settlements since the law took effect in 2018, the agency said.

But most states lack active enforcement efforts and don’t follow US Equal Employment Opportunity Commission guidance on the consideration of arrest and conviction records in employment decisions, which may trigger bias claims under local human rights law and Title VII of the 1964 Civil Rights Act, Oliver said.

That was largely the case in California in the recent past despite its six-year-old Fair Chance Act, which broadly bans discrimination related to criminal history, he said. But the state’s Civil Rights Department implemented regulations in July 2023 that strengthened the law, making it more difficult for employers to exclude applicants with past convictions and bringing the state closer in line with EEOC guidance.

“That was kind of the precursor to what ended up being the first major enforcement” via the agency’s lawsuit against Ralphs, Oliver said. “It’s kind of setting the stage, giving what I call a ‘shot fired’ to businesses in California” who discriminate against formerly incarcerated people, he added.

Cultural Shift

Fair-chance hiring laws are proliferating alongside a growing bipartisan and cultural movement toward removing employment barriers for people with criminal backgrounds. As a result, employers could see increasing federal and state enforcement of policies such as ban-the-box, said Emily S. Borna, a management-side labor lawyer at Jackson Lewis PC in Atlanta.

“Probably the best approach to hiring is to evaluate each candidate on his or her merits,” Borna said. “I don’t think you have to throw caution to the wind, but I think you can be selective about when and to what extent you conduct a criminal history check.”

Individualized assessment of applicants aligns with the EEOC’s guidance as well as the policy goals behind many state and local second-chance hiring laws, attorneys said.

When considering a candidate with a past criminal conviction, “employers need to ask themselves” to what “extent does it relate to the essential functions of a job you’re considering somebody for,” Borna added.

EEOC guidance and laws in California and elsewhere instruct employers to consider factors such as the nature and severity of the crime, how long ago it happened, and the nature of the job before rejecting a candidate based on their criminal history.

Even in states that don’t have an explicit ban-the-box or clean slate statute, other laws can limit how employers consider criminal history. In Georgia, judges can grant “first offender status” to certain convictions, and those offenses aren’t supposed to be considered in hiring decisions, Borna said.

Nevertheless, Borna said she’s never personally seen litigation in Georgia to challenge an employment decision related to a “first offender” conviction.

Compliance Approach

The effects of fair-chance hiring laws are even bleeding into jurisdictions that haven’t yet enacted such measures, attorneys said.

To avoid potential liability, many multi-state companies adopt a nationwide compliance approach by defaulting to California’s standard, said Jared Speier of Stradling Yocca Carlson & Rauth LLP, who counsels employers on fair-chance hiring issues.

Under California’s clean slate law, employers can’t check the criminal histories of applicants or current employees until after making a conditional offer of employment. Information about convictions disclosed voluntarily by an applicant can’t be considered before an offer is made.

The Golden State “has the most protective laws for employees,” so this means employers are going to hire people “who they could otherwise legitimately not hire in other states,” he said.