Today, most Americans live in a jurisdiction that has enacted a “ban-the-box” law (also known as a “fair chance” law). Ban-the-box laws restrict employers from inquiring about an applicant’s criminal background at various stages of the hiring process. The purpose of these laws are to enable an ex-offender to display his or her qualifications in the hiring process before he or she must disclose a criminal record. In fact, the origin of the laws’ colloquial name is the “box” that initial job applicants must check if they have a prior conviction. These laws benefit an estimated 70 million people in the United States (or almost one in three U.S. adults) who have prior arrests or convictions.
Currently, there is no federal ban-the-box law generally applicable to private sector employers. However, on December 20, 2019, President Trump signed into law the Fair Chance Act (also known as the Fair Chance to Compete for Jobs Act of 2019) which prohibits federal agencies and government contractors from inquiring about an applicant’s criminal history before making a conditional employment offer, unless a specified exception applies. The law includes exceptions for law enforcement and national security positions that require access to classified information, and where an employer is legally obligated to conduct a criminal background check before making a conditional employment offer.
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