Over the last several years, the “ban the box” movement has gained an impressive amount of momentum and support from lawmakers and activists across the nation. With an aim to provide job applicants a chance to obtain employment without the stigma of a conviction or arrest, “ban the box” laws require employers to consider an applicant’s qualifications before inquiring into or considering their criminal record. While employers may still consider an applicant’s criminal record, they generally must wait until after the applicant’s initial interview or until they extend a conditional job offer, depending on the laws of the particular jurisdiction.

At this time, 35 states and over 150 municipalities have “banned the box” for public employers, while 32 municipalities have extended their policies to government contractors. Perhaps most notably, the following 13 states have “banned the box” for private employers:

• California
• Colorado
• Connecticut
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• New Jersey
• New Mexico
• Oregon
• Rhode Island
• Vermont
• Washington

18 municipalities have followed suit.

In addition to delaying any inquiry into an applicant’s criminal history, several jurisdictions have incorporated the EEOC’s guidance on the use of arrest and conviction records in employment decisions, which generally advises employers to make individualized assessments of potential employees. In other words, such jurisdictions require employers to consider the time elapsed since commission of the criminal offense and its relevance to the job when making hiring decisions.

The EEOC’s role in enforcing its own guidance, however, may be limited. The United States Court of Appeals for the Fifth Circuit recently barred the EEOC from enforcing its guidance in connection with a Texas state hiring policy. See Texas v. EEOC, 933 F.3d 433 (5th Cir. 2019). That policy bars some felons from holding certain state jobs. In Texas v. EEOC, the Fifth Circuit ruled that the EEOC stepped outside its statutory authority by issuing arrest and conviction records guidance that amounted to a “substantive rule.” At the same time, the court dismissed Texas’s request for a judgment declaring it has the right to bar felons from holding certain state jobs.

Although the EEOC’s guidance on the use of arrest and conviction records is not binding, employers should still review their hiring policies and practices in jurisdictions with “ban the box” laws.