This is a continuation of How Will ‘Ban the Box’ Trends Change Recruitment Traffic: Part I of II from Monday, January 12, 2015.

Will the Ban the Box Laws Help the Employer or Candidate?

While it is obvious that those candidates with a criminal history may benefit from the Ban the Box laws that are trending in the United States, the benefits to employers are less clear. Most States implementing a Ban the Box law do not require employers to forego the criminal background check. Instead, they require the background check to be pushed later in the hiring process. Typically after a conditional offer has been made. New Jersey’s Opportunity to Compete Act specifically states “that many individuals with prior criminal histories pose no greater risk of future criminality than do people with no criminal history and are equally qualified, reliable, and trustworthy candidates for employment.” If employers follow this advice, it would suggest that employers would have a larger pool of candidates from which to select from and hire.

For Employers that currently conduct criminal background checks prior to making a job offer, limiting criminal background checks to candidates who have received and accepted offers of employment will reduce spending on criminal background checks.   However these savings will be more than offset by the increased number of interviews and job offers that will need to be rescinded as a result of applicants who become disqualified based on their criminal histories. Employers will also see increased costs in complying with these regulations since many states, like New Jersey, provide specific rules, procedures and forms that must be followed and completed in order to rescind an offer of employment based on a criminal background check. Although not required under the NJ Law, many employers may choose to delay filling an open position with another qualified candidate who has passed the background check until the initial candidate has had the requisite time provided under the law to respond and challenge the employer’s decision to rescind their employment offer.

Can An Employer Withdraw an Offer After the Criminal Background Check?

Yes. Employers are not required to hire someone who is no longer qualified as a result of their criminal history. It is important to note that if an employer wants to rescind an offer to an individual after the criminal background check has been completed, employers must follow the guidelines provided by the respective governing authority, whether Federal, State and/or Municipality. Each governing authority is going to have its own set of procedures and rules for an employer to follow. For instance, in New Jersey, a candidate must receive written notice of an offer withdrawal from the employer and be provided ten days to respond with any additional information or evidence. A specific form is provided for employers to use.

State and local legislation does not override any existing federal employment laws. State and local laws complement Federal laws. Thus, if you are an employer in a state or municipality that does not have a “Ban the Box” law, you still need to follow Federal laws regarding rescinding offers of employment.

 What should Employers do to Comply with “Ban the Box” laws?

  • Review your State and Local laws requiring the use of criminal historyinformation for the purpose of making a decision to hire or not hire.
  • Eliminate language in your job ads that suggests aperson with one or more crimes, or who has been arrested, is not eligible for your job.
  • Eliminate questions regarding convictions, arrests and crimes from your job application.
  • Train hiring managers and recruiters to avoid asking about applicants’ criminal histories until an offer of employment is made.
  • Review your policies regarding how offers of employment will be rescinded and ensure you have clear guidelines as to how felonies and misdemeanors will be evaluated in order to determine if they are permissible or disqualifiers for each unique job.
  • When in doubt consult your labor attorney before acting.

For recruitment assistance and help in ensuring a positive candidate experience for the truly qualified please contact us at

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