Ban the Box – The Fair Chance Initiative

What does it mean to “ban the box”? The term refers to the box or question on an employment application asking if a candidate has ever been convicted of a crime. Ban the box laws and policies require employers to avoid inquiring about a candidate’s criminal convictions until after an interview or when the employer extends a conditional job offer.

Why should an employer ban the box? The theory behind banning the box is that an employer has an opportunity to form an initial impression of an applicant’s character before reacting to their criminal history. In addition to this theory, the United States Equal Employment Opportunity Commission (EEOC) has issued guidelines urging employers to consider such factors as the crime committed and how it may relate to the job the employee will be performing. For example, an employee convicted of embezzlement would probably not be a good candidate for city treasurer. In addition, the EEOC advises that an employer consider how much time has elapsed since the conviction. The EEOC has taken a very aggressive stance against employers that use conviction records against an employee without justification, and when the use of such records could be viewed as discriminatory in nature under Title VII, and as such, are based on race, color, religion, sex, or national origin. The easiest way to avoid such discrimination is to “ban the box” on all applications for employment and within the interview process.

Public employers in Kentucky are also required to follow KRS 335B.020(1), which states: “[n]o person shall be disqualified from public employment…solely because of a prior conviction of a crime, unless the crime for which convicted directly relates to the position of employment sought.” KRS 335B.020(2) establishes three factors for a potential employer to consider: “(a) The nature and seriousness of the crime for which the individual was convicted, and the passage of time since its commission; (b) The relationship of the crime to the purposes of regulating the position of public employment sought…; (c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment.” If a public employer is considering using a criminal conviction as a reason for denial, it should include its agency attorney in the final decision and be certain to follow the Federal Credit Reporting Act requirements, as well as the notification and hearing requirements in KRS 335B.030.

Legal requirements are not the only issue of concern. Many citizens within our cities have some criminal record, and many times a job opportunity can be the one thing that can turn someone’s life around. The job opportunity can impact the person, their family, and the community.

Currently, 34 states have ban the box laws or policies. In 2017, Gov. Matt Bevin issued the “Fair Chance Employment Initiative” executive order. The order removed the question of whether an applicant has been convicted of a felony from employment applications for certain jobs at the state level. Various city and county ban the box laws around the country apply to private and public employers. Louisville is currently the only city in Kentucky that has a ban the box ordinance in effect at the local level. The ordinance bans the Louisville Metro Council, contractors, and vendors doing business with Louisville Metro from inquiring about an applicant's criminal background on the employment application. Louisville Metro only performs a background check for otherwise qualified applicants and incorporates EEOC criteria in the assessment of applicants. The ordinance states that the city prefers to do business with vendors and contractors that have adopted policies consistent with the city. The City of Hopkinsville has also decided to remove the question regarding criminal convictions from its employment applications. The city will still do background checks, but they will occur later in the hiring process.

What does “ban the box” not do? It does not require that you hire employees with criminal convictions. Many employers think ban the box laws and policies will prevent them from doing background checks altogether. That is not the case. Ban the box language still allows, and should even require, an employer to do the criminal background check, but only after the interview process, or more preferably as a conditional offer of employment, and based on specific criteria related to the position.

It is important to note that employers must consider criminal backgrounds when hiring police and law enforcement telecommunicators under KRS 15.382, KRS 15.391, KRS 61.300, and KRS 15.540. These statutes state that a person may not be convicted of a felony; a misdemeanor under KRS 510.120, 510.130, or 510.140; a second or subsequent offense under KRS 510.148; or a criminal attempt, conspiracy, facilitation, or solicitation to commit any degree of rape, sodomy, sexual abuse, or sexual misconduct. Further, peace officers may not be convicted of a crime involving moral turpitude. In addition to law enforcement, employers must consider criminal backgrounds when hiring firefighters, including volunteers, ambulance workers, and rescue squad workers under KRS 17.167, 202 KAR 7:301, 202 KAR 7:201, 202 KAR 7:401.

After Governor Bevin signed the executive order, he stated, "I want to specifically challenge each and every private employer in this state to think about doing the exact same thing." The Kentucky League of Cities would like to add public employers to this “ban the box” challenge and continue to encourage fair hiring practices. If you would like more information, a sample policy, notification letters, or an ordinance, contact the KLC Municipal Law Department.