New England “Ban-the-Box” Trend: Navigating Criminal History Checks in the Hiring Process

Many states and localities have been adopting “ban-the-box,” prohibiting employers (including private employers) from asking applicants to disclose information concerning their criminal histories prior to an initial interview or a conditional offer of employment. Currently, all New England states except Maine and New Hampshire have a ban-the-box law that is applicable to private employers. Bills that would have applied ban-the-box to private employers in both Maine and New Hampshire died in last year’s legislative sessions, but there is a good chance that similar legislation will resurface.

Importantly, the ban-the-box law concerns criminal history information requested directly from applicants (and employees under certain state law). Employers may request certain criminal history information from other sources (e.g., federal or state department of criminal justice systems) and/or through a third party vendor (e.g., consumer reporting agency), but there may be separate requirements for criminal background checks under applicable federal and/or state law.

Employers would be wise to review the relevant laws in all jurisdictions in which they do business and monitor further legislative activities on this topic. In light of that information, employers may consider whether application documents, hiring practices, and criminal history check policies need to be updated.

Asking Applicants to Disclose Criminal History Information

The “ban-the-box” laws in Connecticut, Massachusetts, Rhode Island and Vermont impose restrictions on the timing of criminal history inquiries: They prohibit employers from asking an applicant to disclose his or her criminal history information until a specified point in the hiring cycle (e.g., the interview stage or after a conditional offer of employment). FULL ARTICLE