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Thinking Outside the Box: Eliminating the Criminal Conviction Box from Employment Applications

As most employees and employers are aware, a standard employment application normally includes a box or line item for the applicant to document whether he/she has ever been convicted of a crime. In the employment relations realm, however, there exists a growing initiative to “ban-the-box” – meaning that job applications no longer ask about one’s criminal history.

Nearly ten states have adopted ban-the-box policies; among these, five states instituted the law in 2013.[1] Each state’s laws vary. For example, some ban-the-box policies apply only to public employers, while others apply to both public and private employers. Recently, Target announced that it will eliminate the box from its applications nation-wide in 2014. Wal-Mart removed its box in 2010. At the federal level, the Equal Employment Opportunity Commission (EEOC) announced the following in a 2012 Enforcement Guidance Memorandum: “As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Ban-the-box proponents believe that individuals with a criminal history have a better chance to attain employment if not eliminated immediately from the pool based solely on the application. By removing the box, these individuals may apply for positions which they would not normally consider because of their past, and may have more confidence in an interview setting. Additionally,ban-the-box proponents assert that by excluding those with a criminal history from the hiring process, employers may be unconsciously excluding certain populations at a disproportional rate. According to ban-the-box proponents, the elimination of the criminal history box or line encourages individuals to get their foot in the employment door, and helps alleviate the public stigma against criminal offenders.

Should other employers follow Wal-Mart and Target’s lead to ban-the-box? Check back next week for more on this topic.

[1] Statewide Ban the Box: Reducing Unfair Barriers to Employment of People with Criminal Records, National Employment Law Project, November 2013.

© 2020 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.


About this Author

Brittany Blackburn Koch, McBrayer Law Firm, Litigation Family Attorney

Brittany Blackburn Koch is a member of the firm's litigation group. Her practice is diverse, with a primary focus on civil litigation and family law. Her civil litigation practice includes the areas of contract disputes, personal injury, and employment law, which consists of representing employers in state and federal trial courts for issues associated with the enforcement of no-compete agreements, the investigation and defense of discrimination claims, and the negotiation and enforcement of severance agreements.

Ms. Koch provides a variety of family law services ranging from the...