“Ban the Box” What Can You Ask Applicants About Criminal History?


By: Meaghan Petetti Londergan

There is a growing national trend to “ban the box” by removing any consideration of an applicant’s criminal history from the initial hiring process. “Ban the box” laws prohibit an employer from asking about an applicant’s criminal history until a certain later point in the hiring process. As such, many “ban the box” laws prohibit such inquiries on the application or during initial contacts regarding potential employment. So far, nineteen states, including the District of Columbia and over 100 localities have implemented some form of a “ban the box” law. In November 2015 President Obama announced an order requiring federal employers to delay any inquiries about an applicant’s criminal history until later in the hiring process.

Recently, the Pennsylvania Commonwealth Court unanimously declared facially unconstitutional the “lifetime ban” imposed by §503(a) of the Older Adults Protective Services Act (“Act”). The “lifetime ban” disqualifies individuals convicted of certain offenses, such as murder or drug possession, from obtaining or continuing employment at a facility charged with the supervision and care of senior citizens, regardless of the date of conviction.  The ban rests on an irrefutable presumption that an individual who, at any point in time, was convicted of a listed offense will forever pose a threat to older adults.

The court declared that, under Pennsylvania law, such a presumption is unnecessarily broad, and that while the General Assembly has the power to limit the rights of citizens to protect the public health, safety, and welfare, “the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.”

In addition, Philadelphia recently passed new amendments to Philadelphia’s Fair Criminal Records Screening Standards, effective March 14, 2016, to place restrictions the use of criminal histories and ensure that both public and private employers consider relevant work qualifications in employment decisions. While the law prohibits criminal history inquiries on the job application, it does not 1) prevent an employer from ever inquiring about an applicant’s criminal history, 2) guarantee that an individual with a criminal history will receive employment, 3) apply to certain exempted roles within prisons, courts, and police departments, or 4) prevent an employer from making any inquiries specifically required by state or federal law. However, after the effective date, all employers must wait until after extending a conditional offer of employment prior to ordering a criminal background check, and an employer may only consider an applicant’s criminal history within seven years of the background check.

Given the momentum behind “banning the box” employers should consider assessing company practices including:
1) Provide relevant training and information to hiring professionals on national trends and the applicable federal, state and local requirements;
2) Review current application procedures for any impermissible inquiries into an applicant’s criminal history; and
3) Review the current hiring process to ensure proper timing of criminal background checks and other relevant inquiries into the applicant’s criminal history.

Evaluating company practices now minimizes the possibility of facing hefty fines or liability resulting from any non-compliance.