The newest source of contention this legislative season? Job application forms. More specifically, a single box on said form.

The box in question is the one found on many job applications, asking applicants if they’ve ever been convicted of a crime. Legislators in some states are leading the charge to get that box removed. Dubbed the “Ban-the-Box” movement, the goal is to give those with prior criminal records a better shot at gainful employment. But some small business owners are pushing back against what they see as yet another restriction on the hiring process.

What is Ban-the-Box?

Ban-the-box legislation aims to delay the moment at which a job applicant may be asked about a prior conviction. The idea is that this will help those who have had run-ins with the law sell themselves to potential employers rather than being rejected at the start of the process.

There’s no question that having a steady job is key in keeping previous offenders from returning to prison, according to Jordyn Lexton, founder of Drive Change, a non-profit that works with formerly incarcerated youth. In her former work as a teacher, Lexton found that many of her students that had spent time in jail were trying to find a job and stay off the streets, "but they feel as though their access to opportunity is really limited."

Drive Change operates Snowday, a for-profit food truck that hires formerly incarcerated youth, those between the ages of 16-25. Snowday hires approximately 8 workers for a 6-8 month period, during which time they learn all the skills necessary to run a food truck, including culinary arts, food handling, money management, and social-media branding.

For Lexton, Snowday isn't just about imparting skills. It's also a chance to demonstrate to potential employers the dedicated employees they can gain when they give ex-offenders a second chance. "When you demonstrate respect when creating a positive workforce that others might not have been given access to before, you get that strong sense of loyalty," says Lexton. 

Considering that about 70 million people in the U.S. have been arrested or convicted of a crime, the worry is that some employers are completely ignoring a huge sector of the applicant pool. According to Michelle Natividad Rodriguez, a senior staff attorney with the National Employment Law Project, ban-the-box laws help ensure that “employers are looking at the job applicant on their qualifications first, without stigma.”

Five states and counting

Currently 12 states and almost 70 cities have passed legislation that places some kind of restriction on when employers can ask potential employees about past convictions. However, only four states--Hawaii, Minnesota, Massachusetts, and Rhode Island--have ban-the-box laws that currently affect private employers. They are about to be joined by Illinois, where Governor Pat Quinn on July 19 signed the Job Opportunities for Qualified Applicants act, which takes affect Jan. 1.

How deep ban-the-box laws run varies by state--Hawaii doesn’t allow employers to ask applicants until a conditional offer of employment has been made, while employers inn Washington, D.C. can ask for a background check after the first interview.

While the first type of law to delay background checks in the application process dates back to 1998, the movement has really picked up steam this year, particularly in regards to the private sector. Similar bills to the one passed in Illinois are underway in New York City and New Jersey. 

What does this mean for you?

First, certain industries that are legally required under state or federal law to exclude people with certain criminal convictions still must do so. And many ban-the-box laws only apply to businesses that have more than a certain number of employees--only businesses with 15 employees or more must comply with the new law in Illinois, for example.

Still, Jack Mozloom, senior regional media manager for the National Federation of Independent Businesses, worries about legal liabilities as well as the potential costs, both in terms of time and money.  

“Small business owners, unlike their corporate cousins, don’t have a huge HR staff,” Mozloom says. “This adds additional administrative responsibilities to the employer during the hiring process.”

“I think that it’s actually going to stop small business owners from doing background checks,” adds Christine Cunneen, CEO of Hire Image, a company that provides background screening and other employment verification services for businesses. Her argument is that should an employer conduct a background check and not hire someone, that person may have grounds to claim discrimination if their background includes an arrest that may not seem relevant to the job in question. She favors providing incentives to businesses that have the resources to hire ex-offenders.

Rodriguez belives that ban-the-box laws will encourage companies to become conscious of unintentional discrimination in the hiring process. She says that employers can state in job announcements whether there are specific kinds of convictions that will pose an issue, but adds that most non-violent offenses have no bearing on an applicant's ability to do a job.  “I think it’s really important for the business community to see themselves as large stakeholders in the question of how they can help solve the problem of mass incarceration,” she says.