October 20, 2015

Almost one in three adults in the United States has a criminal record that will show up on a routine criminal background check.  Many believe this creates a serious barrier to employment for millions of workers.

Nationwide, states and cities have been implementing “ban the box” policies to help people with records overcome the barrier to employment of having to “check the box” about a past felony conviction on a job application.  Eighteen states and over 100 cities and counties have adopted “ban the box” and other fair chance hiring reforms, often in tandem with other criminal justice reform initiatives. In addition, several major corporations have embraced fair chance hiring as well, including Walmart, Target, Home Depot, and Bed Bath & Beyond. Currently Idaho does not have such a law.  

The idea is that employers consider a job candidate’s qualifications first, without the stigma of a conviction record. Background checks are still allowed — they just come later in the process — so there is no loss of information for employers.  All “ban the box” does is make sure that employers form their initial impressions about candidates based on their skills, qualifications, and interviews instead of something they might or might not have done in the past.

The Equal Employment Opportunity Commission (EEOC) recommended removing the box from job applications as a best practice back in 2012. Federal legislation has recently been introduced – titled “The Fair Chance Act.” The purpose of the legislation is to give formerly incarcerated people a fair chance at securing employment by prohibiting federal contractors and federal agencies from asking about the criminal history of a job applicant until an applicant receives a conditional offer of employment.

Activists argue the federal legislation is not perfect. They would like to see clearer mechanisms for enforcement. The bill also carves out exceptions for sensitive positions (e.g., law enforcement and national security).  If the federal legislation passes, then more states may also enact similar legislation.  With record number of prisoners being released, “ban the box” initiatives may be necessary to assist them with becoming contributing members of society.


  • Keep an eye on federal, state and local legislation to ensure your job application is in compliance.
  • Consider weighing the costs versus the benefits of removing the “box” from your job applications.


Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.