As many as 70 million Americans have criminal or arrest records. According to a piece in Law360, that statistic has helped give rise to so-called "ban the box" laws, or regulations prohibiting employers from asking about criminal records on job applications. On June 10, the article explained, the New York City Council passed a bill requiring "private employers to delay asking job applicants about convictions until after a conditional offer of employment," joining six states, Washington, D.C. and 11 cities and counties in passing a law of this nature.
Since these laws are being passed on a local level, Dan Prokott, Faegre Baker Daniels partner, said it would be wise for national employers to eliminate the question—at least within the application itself—to avoid legal ramifications in jurisdictions that have banned it.
"I don't think it's a good idea to be asking employees' criminal history at the applicant phase," Prokott said.
The article noted that Target, Wal-Mart, and Koch Industries, Inc. have already moved criminal history questions to a later stage in the hiring process. Prokott said that was a prudent choice.
“The safest course of action is to develop a practice across states where you don’t ask [about criminal history] until the conditional offer of employment is made,” he said.