Ban the Box Case Raises Background Check Compliance Questions
A New Mexico newspaper's hiring of a convicted sex offender highlights common confusion over what ban the box laws actually require of employers.
A newspaper in New Mexico hired a convicted sex offender to report on local schools. When it was reported that the employee was on the sex offender registry, the paper stated that he had failed to self-disclose that information. The employer then pointed to New Mexico's recently passed ban the box regulations to explain why they hadn't run a background check during the hiring process. These laws, which have been enacted in over 35 states and 150 cities and counties, mandate that employers not require candidates to self-disclose their criminal history during the initial job application.
Does this mean background checks cannot be run in states, cities, or counties that have passed ban the box regulations? No. Best practice is to wait until after a conditional offer of employment has been made to ask about criminal history. The candidate then has an opportunity to self-disclose their criminal history, and a background check can be conducted at that time. Additionally, employers may want to confer with legal counsel prior to making changes to their screening policies, since misinterpreting the law can result in situations like this one.
Note: This case reflects ban the box regulations and hiring practices as they stood in 2019; the number of jurisdictions with ban the box laws has continued to grow since then.
Please contact CRC if you have any questions about Ban the Box and how it affects your organization, or to learn more about our background screening services.
