Ban the Box and the Federal Fair Chance Act for Job Seekers

The National Defense Authorization Act for fiscal year 2020 was a vast document. It created the Space Force, set pay raises for troops and authorized hundreds of billions of dollars in military spending, and President Trump signed it on December 20, 2019, with the usual ceremony for a must-pass bill. Tucked inside it, in a section that had nothing to do with weapons or bases, was a short law with a long history behind it: the Fair Chance to Compete for Jobs Act. It told federal agencies, and companies doing business with the federal government, to stop asking job applicants about their criminal records until after making a conditional job offer. The provision had been pushed for years by a coalition that ranged from civil-rights groups to conservative criminal justice reformers, and its path into law tells you something about how Congress actually works: when a reform cannot pass on its own, it sometimes hitches a ride on the one bill lawmakers always pass. The idea behind it began with formerly incarcerated organizers in California who gave the movement its name.

In short: Ban-the-box laws remove the criminal-history question from job applications and delay background checks until later in hiring, so applicants are judged on their qualifications first. The federal Fair Chance Act, which took effect in December 2021, applies this to federal agencies and contractors; many states and cities have similar rules, some covering private employers, and research shows both benefits and some unintended effects.

The box, and the people who named it

For decades, most job applications in the United States included a question that looked something like this: "Have you ever been convicted of a crime?" Next to it was a box to check. People who checked it often found their applications quietly discarded, no matter how long ago the conviction was, what it was for, or what kind of job they were applying for.

The phrase "ban the box" came from All of Us or None, a group of formerly incarcerated people and their families founded in California in the early 2000s. Their argument was straightforward. People leaving prison need jobs to stay out of trouble, pay rent and support families. If the checkbox ended their chances before anyone met them, the system was setting them up to fail.

They were not starting from nothing. Hawaii had passed a law in 1998 limiting when employers could ask about convictions, which is usually cited as the first statewide fair-chance hiring law. But the organized ban-the-box movement spread city by city and state by state in the 2000s and 2010s. San Francisco, Boston, Philadelphia and many other cities adopted policies for public jobs. States followed, some for government employment only, others extending the rule to private employers. Today a majority of states have some kind of fair-chance hiring policy, and many cities and counties have their own.

Washington moved too. Under President Obama, the Office of Personnel Management adopted a rule in 2016 delaying criminal-history inquiries for most federal civil-service jobs until later in the hiring process. The Fair Chance Act wrote that into statute, extended it to more of the federal workforce and, importantly, extended it to federal contractors.

What the Fair Chance Act requires

The law took effect two years after it was signed, in December 2021, to give agencies and contractors time to adjust. Its core rule is simple.

• Federal agencies cannot ask an applicant about arrests or convictions, orally or in writing, or run a background check that would reveal them, until the agency has made a conditional offer of employment.
• Federal contractors cannot ask about criminal history before a conditional offer for positions related to work under a federal contract.

There are exceptions. The law does not apply to positions that require access to classified information, law enforcement jobs, positions where a criminal-history check is required by another law, and certain other roles the government designates for national security or similar reasons. After a conditional offer, employers can still run background checks and can still decide not to hire someone based on what they find, subject to other laws.

Applicants who believe an agency or contractor violated the rule can file a complaint. For agencies, the Office of Personnel Management handles complaints and can impose penalties on employees who violate the law. For contractors, the agency that awarded the contract handles complaints, and repeated violations can bring escalating penalties, including suspension of payments under the contract.

The law, in other words, does not require anyone to hire a person with a record. It changes the order of the questions. The applicant gets to be evaluated on skills, experience and interviews first.

Why the order of the questions matters

Psychologists and hiring managers will tell you that first impressions are hard to shake. If the first thing a manager learns about an applicant is a conviction, the rest of the application is read through that lens. If the manager first learns that the applicant has a commercial driver's license, five years of steady work and a strong interview, the conviction becomes one fact among many.

Delaying the question also gives the employer a chance to think about the record in context. The Equal Employment Opportunity Commission, in guidance it issued in 2012, said that blanket bans on hiring anyone with a conviction can violate Title VII of the Civil Rights Act because they disproportionately exclude Black and Latino applicants, who are arrested and convicted at higher rates. The commission said employers should consider the nature and seriousness of the offense, the time that has passed since it, and the nature of the job, a set of factors drawn from a 1975 federal appeals court case. A conviction for embezzlement is relevant to a bookkeeping job; a fifteen-year-old drug possession conviction is probably not relevant to a warehouse position.

Fair-chance hiring laws often require exactly that kind of individualized look. Some state and local laws go further, requiring employers to explain in writing why a record disqualifies an applicant and giving the applicant a chance to respond or correct errors before a final decision.

The research, including the uncomfortable part

Ban-the-box policies have been studied heavily, and the results are mixed in ways that matter.

Some studies found that public-sector ban-the-box policies increased the chance that people with records were hired for government jobs. Interviews with employers suggest that many who meet applicants first come away more willing to hire them.

But two well-known studies raised a serious concern. Economists Jennifer Doleac and Benjamin Hansen found that after ban-the-box policies took effect, young Black men without college degrees were somewhat less likely to be employed. Their explanation was statistical discrimination: when employers cannot see who has a record, some may assume that young Black men are more likely to have one and avoid hiring them altogether. A separate field experiment by Amanda Agan and Sonja Starr sent thousands of fictitious job applications to employers in New Jersey and New York City before and after ban-the-box laws took effect. They found that removing the box did help applicants with records get callbacks from employers that had previously asked, but that the gap in callbacks between white and Black applicants grew.

These findings are real, and supporters of the policy should engage them rather than dismiss them. Some researchers have challenged parts of the methodology, and other studies have found different results. But the core worry, that hiding one piece of information can lead some employers to guess based on race, is consistent with what we know about discrimination.

The policy lesson most researchers draw is not to give up on fair-chance hiring but to pair it with other tools. Strong enforcement of laws against racial discrimination in hiring matters. So does reducing the number of people with records in the first place, through record clearing and sentencing reform. And so does giving employers better information about applicants' qualifications, such as certificates of rehabilitation, job training credentials and references, so they rely less on guesswork.

The case against, fairly stated

Business groups and some employers have opposed fair-chance laws, especially for private employers. Their arguments deserve a fair hearing.

Employers say they have legitimate reasons to know about criminal histories, including liability for negligent hiring if an employee with a relevant record harms a customer. Delaying the question, they argue, wastes everyone's time when a record will ultimately disqualify the applicant, as when a person with a recent theft conviction applies for a cash-handling job. Small businesses in particular worry about complicated rules, paperwork and legal exposure.

The answer to some of this is in the details of the laws. The Fair Chance Act and most state laws keep the employer's right to run a check and to decline to hire based on relevant convictions. They exempt jobs where the law requires background checks. And negligent hiring claims depend on whether an employer acted reasonably, which an individualized assessment is designed to show. The real cost of fair-chance hiring is an extra step in the process. The real cost of excluding people with records from work is paid by families, taxpayers and communities when people who want to work cannot.

There is also an economic argument that appeals across party lines. An estimated tens of millions of Americans have some kind of criminal record. In tight labor markets, employers who screen out all of them are cutting themselves off from a large pool of workers. That is one reason some major companies have adopted fair-chance hiring voluntarily, and why conservative criminal justice groups supported the federal law.

What job seekers should know

If you have a record and are looking for work, here are the practical points.

1. Know which rules apply. If you are applying for a federal job or a job with a federal contractor connected to the contract, the Fair Chance Act generally bars questions about your record before a conditional offer, unless the job falls into an exception. State and local laws may also apply to private employers where you live.
2. Do not lie when you are asked. After a conditional offer, an employer may lawfully ask about your record and run a check. Lying is often grounds for withdrawing the offer even when the record itself would not have been. Know exactly what is on your record before you are asked.
3. Prepare a short, honest explanation. Focus on what you have done since: work, training, treatment, family responsibilities. Bring documentation if you have it.
4. Check the background report for errors. Under the Fair Credit Reporting Act, if an employer uses a background check company and plans to reject you based on the report, it must first give you a copy and a summary of your rights. Dispute anything inaccurate, including records that have been sealed or expunged.
5. Consider clearing your record. Many people are eligible to seal or expunge old records and do not know it. Legal aid groups can help.
6. If you think the law was broken, file a complaint. For federal jobs and contractors, complaints go to the Office of Personnel Management or the contracting agency. For state and local laws, check your state labor department or civil-rights agency.

Federal programs can also help. The Work Opportunity Tax Credit gives employers a tax credit for hiring people from certain groups, including people with felony convictions hired within a year of conviction or release. The Federal Bonding Program provides free fidelity bonds that insure employers against theft by employees with records during the first months of employment. Telling an employer about these programs can make a real difference.

A job is a public safety program

The deeper point of the Fair Chance Act is that work is not a reward given to people after they have proven themselves. It is one of the main ways people prove themselves. Someone with a paycheck, coworkers and a schedule has a stake in staying out of trouble and a community that would notice if they did not.

That idea has crossed party lines more than almost any other criminal justice reform. Organizers who served prison time built the movement; Democrats and Republicans in Congress wrote the federal law; a Republican president signed it as part of a defense bill. It is a modest change in the order of questions on a form. For millions of people, it is the difference between an interview and a rejection letter.

What you can do

• Find out whether your state or city has a fair-chance hiring law that covers private employers, and if not, ask your legislators to pass one. The representatives page gives you your state legislators' and members of Congress's phone numbers and contact forms and shows their latest votes.
• Get free help with record clearing or job readiness. Reentry, legal aid and workforce groups are listed by state in the organizations directory.
• Learn which workplaces are organizing. The labor page shows the newest union elections the NLRB has counted and who won, along with union membership over time; a union contract can give any worker, including one with a record, a grievance process when a firing seems unfair.
• Keep up with workers and unions coverage on hiring, wages and job rights.