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Kansas Agencies Ban-the-Box

A growing number of employers have voluntarily decided to eliminate questions about criminal convictions and arrests from their employment applications. Koch Industries, a Kansas-based company and one of the country’s largest private employers, has been on the leading edge of the movement. Now, Kansas Governor Jeff Colyer is joining the movement with a recent executive order. 

What is the “ban-the-box” movement?
“Ban-the-box” refers to the box that has historically appeared on many job applications asking the applicant whether he or she has ever been arrested or convicted of a crime. The “ban-the-box” movement has been an effort organized by civil rights organizations composed primarily of formerly incarcerated people and their families. Statistics show that lack of employment makes it more likely that ex-offenders will re-offend, so those supporting this movement argue that employing more individuals with criminal convictions will have a positive impact on society. In essence, supporters of the movement advocate for enabling people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.
Is it legal to ask applicants about their criminal history on the application?
Maybe; maybe not. Currently, 31 states and more than 150 cities and counties have adopted laws or policies “banning” the box for government positions. In other words, public-sector employers in these states and cities cannot include inquiries on application forms that would require the applicant to disclose arrest and conviction information. Eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington) have extended this prohibition to private employers. In Kansas, and prior to Governor Colyer’s executive order, three cities and one county had already passed ban-the-box measures, including Johnson County, Kansas City, Wichita, and Topeka.
But even for states that haven’t officially banned the box for public and private employers, the EEOC has had guidance in place since 2012 that not only recommends banning the box on applications, but makes many additional recommendations regarding how to fairly use criminal history information. According to the EEOC, for too long, the use of criminal history information on employment applications and in the hiring process has led to unnecessary barriers and a disparate impact for minorities, and particularly for black and Hispanic men.  
Governor Colyer’s Executive Order
With Governor Colyer’s Executive Order 18-12, Kansas joins the other 31 states in banning the box for state agency employment positions. In the order, the Governor recognized that thousands of Kansans who have served criminal penalties have paid their debts to society and deserve a second chance, including job opportunities. The order requires all state Executive Branch departments, agencies, boards and commissions under the Office of Governor to takes steps to ensure that, during the initial stage of the application process, job applicants for public employment positions will not be asked whether they have a criminal record. In addition, the order stipulates that a criminal record cannot automatically disqualify an applicant from receiving an interview.
The Executive Order does carve out exceptions where a criminal record would render an applicant ineligible for the position at issue. For example, certain public jobs are governed by regulations that prohibit a person with criminal convictions from holding that particular job. Those regulations would remain in place and would not be subject to the Executive Order.
In addition, the Executive order makes clear that public employers may still conduct criminal background checks as a condition of employment. The effect of the Order, however, is that these background checks would occur at a later stage in the hiring process, rather than screening applicants for criminal histories at the initial application stage.
When he issued the Executive Order in early May, the Governor stated, “[s]tudies have shown that gainful employment is a major factor in reducing recidivism rate among former offenders. This is simply about treating people as individuals and allowing them to explain their circumstances at a later point in the process.”
Who else should get on board the ban-the-box movement?
We often encourage employers to revisit their employment applications from time to time to evaluate whether the application seeks information that they actually need at that early stage to determine whether to invite the applicant for an interview. For example, do you really need the applicant’s date of birth or citizenship on the application in order to make a decision whether to advance the applicant to the next stage of the process? Or do you simply need to know if the applicant is 18 or older and authorized to work in the United States? More likely, it’s the latter.
The same is true with regard to criminal history inquiries on employment applications. Is it necessary to include a box on your application questioning whether an applicant has had any arrests or convictions? If the answer is, “no, we would individually analyze each applicant’s circumstances at the post-offer criminal background check stage,” then you should consider whether banning the box on the application is the right thing to do now.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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