Growing 'Ban the Box' Movement Impacts Hiring Practices

When it comes to finding jobs, convicted criminals are behind the eight ball. In an effort to give them a fair chance at landing work, many states have begun enacting "Ban the Box" legislation. The goal of the campaign is to get employers to remove the question on their employment applications that asks whether a candidate has been convicted of a crime.

Jesse Stout, policy director at San Francisco-based Legal Services for Prisoners with Children, which supports the box-banning campaign, said the legislation is designed to give formerly incarcerated and convicted people the same chance at landing a job as anyone else being considered for the role.

"The idea is that someone is able to have a holistic first encounter, where someone who sits down for an interview is not judged based on their convictions," Stout told Business News Daily.

The Ban the Box campaign was started in 2004 by All of Us or None, a national civil rights movement of formerly incarcerated people and their families. The campaign was launched after a series of meetings that identified job and housing discrimination as huge barriers to convicted criminals' successful return to their communities after serving time in jail or prison.

While some form of Ban the Box legislation has been enacted in 12 states for public employers, it is quickly expanding to private businesses. Stout said five states now have Ban the Box laws that apply to private employers. [Life After Prison: Would You Hire an Ex-Con?]

Lester Rosen, founder and CEO of Employment Screening Resources, said it's clear that Ban the Box is becoming a national trend and one that will soon affect all types and sizes of employers.

"It is clear we are near a tipping point," Rosen said. "The best advice is to adjust to it and move forward."

Rosen believes the law is not only good social policy, but also makes practical sense. In his eyes, eliminating convicted criminals from the outset doesn't necessarily benefit employers.

"Why bother even having a box when, most of the time, you are going to find out [if a candidate is a convicted criminal] through your normal screening process?" Rosen said. "The only thing you save is maybe a little bit of time."

Rosen said Ban the Box laws don't mean that businesses have to hire convicted criminals, or that they can't ask about a candidate's criminal history or conduct background checks on potential hires. Rather, it just means they can't ask about it up front.

"The best practice is to not ask about a criminal record until after the interview," Rosen said. "That means the person got to the interview process fair and square."

Attorney Mark Waterfill, a partner at the Indianapolis office of business law firm Benesch and an expert in workplace issues, said that by not banning the box, employers are opening themselves up to legal risks.

"Employers who have a blanket policy against hiring anyone with a felony conviction may face liability and a lawsuit from the [United States Equal Employment Opportunity Commission]," Waterfill said.

Besides the legal risks they are taking, Waterfill thinks having a complete ban on hiring anyone who has ever had a criminal conviction isn't good business sense for employers.

"For example, a person with a marijuana conviction from 25 years ago should not be barred from ever working," Waterfill said. "The hiring process should be more flexible and consider the circumstances involved and whether the former conviction relates to the job being applied for."

In addition to helping convicted criminals find work and stay out of trouble, banning the box could lead to a number of benefits to society as a whole, Stout said. For instance, people who are able to get back to work will have a better chance at becoming productive members of society who pay taxes and support other local businesses and institutions, rather than just recidivating, returning to jail or prison, and ultimately costing the taxpayers tens of thousands of dollars in correctional fees, he said.

Stout also believes that not eliminating convicted criminals from job opportunities can also have a positive impact on public safety.

"[Convicted criminals that have a job] are much less likely to commit a new crime, which means we will have lower crime rates and more safe neighborhoods and communities," Stout said.

While Waterfill does think the Ban the Box legislation is good for employers, he cautions businesses to make sure they have all their bases covered when implementing it.

"An employer could be liable for negligent hiring in that they failed to take precautions before hiring a dangerous person," Waterfill said.

One group opposed to the proposed Ban the Box legislation is the National Federation of Independent Business (NFIB). In Louisiana, the NFIB led efforts to kill Ban-the-Box legislation that would have prohibited employers from asking about someone's criminal history on the initial job application.

"We believe this would be a burden of added expense and time to employers when trying to hire as well as open them up to potential liability," NFIB/Louisiana State Director Dawn Starns told the House and Government Affairs Committee, in May.

In a study conducted in April by the NFIB, 88 percent of Michigan small business owners were opposed to the state's Ban the Box proposal.

“A person’s criminal history is part of the public record and that information is used by school districts, government agencies, lenders, land lords and even Little Leagues to get a general sense of an applicant’s character,” NFIB Michigan State Director Charlie Owens said in an April statement.  “Small business owners take all the risk and they are entitled to publicly available information about the people whom they’re hiring.”

Rosen said there are aspects of the law that concern him, as well. Specifically, San Francisco passed new Ban the Box legislation earlier this year that, among other things, mandates that, while employers can check on a candidate's criminal history after they conduct a first interview, they cannot inquire about or consider convictions that are more than seven years old.

Rosen said this will likely cause employers to take a much closer look at unexplained employment gaps as a means of protecting their organization, which has the potential to negatively impact both ex-offenders and the chronically unemployed.

"My concern is if it goes overboard, there will be unintended consequences," Rosen said. "That is banning the box going too far."

Despite those concerns, Rosen is in favor of all employers moving forward with eliminating questions about criminal convictions from their applications, regardless of whether their state has passed official Ban the Box legislation. Rosen said that since criminal history will likely be discovered at some point during the hiring process, there really is no reason to rule out people with a criminal history right away.

"Some of these folks with a criminal record should get hired," Rosen said. "The person could be the answer to your needs."

Originally published on Business News Daily.