Are Employers Making an End Run Around Ban-the-Box Laws?

Today, you need a computer to apply for most jobs. Gone are the days when you could apply in person for a job. For anyone with a criminal background, applying for a job on-line is discouraging. Fortunately, more than half of U.S. states today have leveled the playing field by adopting Ban-the-Box laws to help ex-offenders better compete for jobs.

While these laws don't stop employers from inquiring about someone's criminal history, employers can no longer ask the question on an initial job application. Since 2010, 28 out of 29 states have added Ban-the-Box protections. Since 2015, Illinois prohibits public and private employers from putting a criminal history question on a job application.

Are Ban-the-Box Protections Being Ignored?

Recently, I learned that some on-line job applications ask applicants to give the employer permission to check their background. If the applicant does not check the “yes” box, he/she isn't allowed to complete the application or submit it.

Most employers today hire an outside company to perform their background checks. Before employers can perform a background check the Fair Credit Reporting Act requires:

  • Inform applicant he/she will undergo a background check, and
  • Obtain applicant’s written permission to perform a background check.

Most employers wait until they make a job offer before conducting a background check. Not surprisingly, employers frequently withdraw a job offer if an applicant's background report does not come back clean.

The state's Department of Labor is responsible for enforcing Illinois' Ban-the-Box law. Recently, I contacted Paul Kersey, the person responsible at the department for enforcing the law. I asked Mr. Kersey if he thought the practice of requiring job applicants to consent to a background check violates Illinois law. He stated that he thought that it would. To date, however, no one has filed a complaint about this practice.

What You Can Do to Help Illinois Employers Comply with Ban-the-Box

Are Illinois employers illegally performing background checks on job applicants during the applicant-screening phase, which appears to violate the state's Ban-the-Box law? I don't know the answer to this question. That said, the possibility for abuse certainly exists.

We all can play a role in making sure employers in Illinois comply with the law. In the event you come across a job application asking you to consent to a criminal background check, please let the Department of Labor know by filing a complaint using this link.