Why ‘ban the box’ rules are becoming more popular 

Last year the City of Columbia passed an ordinance that prevents employers who do business with the city from asking job applicants if they have a criminal history. Richland and York counties passed similar policies covering applicants for county jobs. So-called “ban the box” laws have been passed in 35 states and the District of Columbia, and 150 counties and municipalities nationwide have adopted similar ordinances.

Some versions of the ordinance prevent employers from conducting background checks on candidates unless there is a good faith determination that the relevant position requires a background check. Although most of the laws passed apply strictly to public employees or municipal contractors, some employment attorneys anticipate that the rules could eventually be passed to apply to private sector employers.

“It’s a national trend,” said David Dubberly of Nexsen Pruet in Columbia. “And the idea is, if somebody has already served their time, they’ve paid their debt to society. So you don’t want to ask them up front on the application about their criminal convictions. You want to let them get a little farther through the application process before that issue comes up.”

Dubberly said criminal background checks are still being done on candidates, just not through the job application.

“All of these public employers in South Carolina are doing a criminal background check. The ones that have enacted these ordinances, they’re just not doing it at the beginning of the application process. They’re doing it a little bit later in the application process,” he said.

To avoid violations, employers need to be consistent with their application process. Internal policies must be consistent for every applicant to avoid accusations of discrimination, either inquiring about criminal or salary history. If an applicant’s criminal history is important for the job, employers shouldn’t ask about it until an offer of employment is ready to be extended.

“We advise regularly on ban the box issues, including whether an employer should adopt a one-size-fits all, lowest common denominator approach, which, if you want to do that and you’re a nationwide employer, then you have to wait to ask about criminal history until after the conditional offer,” said Stephen Woods of Ogletree Deakins in Greenville and chair of the firm’s national background check practice group.

Restrictions on asking applicants to reveal previous salary history are also becoming more common, and employment attorneys are watching the spread of both ban-the-box and salary history prohibition rules. 

Christy Rogers, also with Nexsen Pruet, said momentum for such rules is growing nationwide and bipartisan in nature. A bill that would ban the box in South Carolina for public employment or licensing for occupations is in the Committee on Labor, Commerce and Industry, but is unlikely to advance before this legislative session is over.

Rogers said employment attorneys should be aware of the existence of these ordinances if they represent companies who operate in multiple states and jurisdictions. Companies who use one job application for candidates nationwide should review their procedures.

“We already see that there are some things that are happening that are creating some obligations for some employers, even if they are private employers.  The Fair Chance Act that President Trump signed into law in December applies to all federal contractors,” Rogers said. “So there are already some things that are being enacted to create some additional restrictions.”

The question of criminal history on job applications can be used as a “truth barometer,” Rogers called it, as a way for companies to test applicants on their honesty, which can be important to some workforce cultures. If the applicant doesn’t answer the question about their criminal history honestly, the truth will come out when a background check is done.

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