Administration Weighs Final "Ban-the-Box" Rule as New Report Urges Caution

October 28, 2016

A final rule is likely to be published by the end of the year restricting federal agencies from asking about job applicants’ criminal histories, setting the stage for a future Executive Order applying the same requirements to federal contractors.  The final rule is currently under review at OMB.  Under the proposed rule, federal agencies would be prohibited from asking about criminal histories until a job offer is made but they could seek an exemption based on "legitimate, specifically job-related reasons."  Exemptions may be available for law enforcement jobs, "public trust" positions and those that require significant training and examination before a conditional offer is made.  Separately, a new report from the Hamilton Project concludes that new evidence documenting unintended negative consequences of Ban-the-Box laws that delay employer access to information about applicants should be considered as the policy discussions move forward.  According to the report: 

Unfortunately, when the information is desired by firms, hiding or delaying criminal history information appears to increase, and not decrease, discrimination against individuals without criminal records who belong to groups that are more likely to have recent convictions. In other words, the new research finds that racial discrimination becomes more likely in the wake of policies that make it more difficult for firms that desire criminal record information to obtain it. It is possible that BTB [i.e., Ban the Box] helps those with criminal records, though there is not yet any rigorous evidence that BTB increases employment for this group. However, BTB also negatively impacts racial minorities without a criminal record, and the net effect is a reduction in employment for this already vulnerable population.