In December 2012, Pittsburgh, Pennsylvania and Wilmington, Delaware became the latest U.S. cities to join the growing “ban the box” movement when the City Council passed legislation that eliminated the check box asking about criminal history from job applications for the city. Pittsburgh joined other U.S. cities such as Boston, Chicago, Detroit, Philadelphia, San Francisco, Seattle, and Washington DC in banning the box. Reports from the National Employment Law Project (NELP) reveal more than 40 cities and counties and seven states have adopted “ban the box” policies that remove questions about criminal history from job application forms and delay them until later in the hiring process to ensure that qualified job applicants with arrest or conviction records are not unfairly shut out from employment opportunities. This growing trend is Number 3 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.
The “box” referred to by the “ban the box” approach is the standard question in almost every employment application asking if a person has a criminal record, and a box to indicate “yes” or “no.” Proponents of the “ban the box” approach note that ex-offenders have a difficult time obtaining employment, even if their criminal matter is old or unrelated, and that the question can result in an applicant being eliminated based upon their status as an ex-offender without any consideration of their abilities or qualifications. The “ban the box” approach does not mean that sex-offenders will supervise playgrounds or bank robbers will have access to cash. Under the “ban the box” approach, appropriate background checks can still be conducted prior to employment, but ex-offenders are not chilled or deterred from applying in the first place due to a fear of automatic rejection. The argument is also made that giving ex-offenders a “second chance” has great economic benefit, in that less money is spent on prisons, law enforcement, and social services when ex-offenders are able to get back into the workforce.
In 2012, several cities joined the “ban the box” movement, most recently; Pittsburgh, Pennsylvania; Wilmington, Delaware; Newark, New Jersey, and; Detroit, Michigan:
- On December 17, 2012, the City Council of Pittsburgh, Pennsylvania passed two ordinances – Ordinance 2012-0013 and Ordinance 2012-1015 – that “ban the box” asking about criminal history on employment applications. Ordinance 2012-0013 applies to all employment with the City of Pittsburgh except for public safety sensitive positions and prohibits inquiries into a job applicant’s criminal history until a conditional offer of employment. Private employers are not affected. In addition, the City must provide applicants with criminal histories that may impact employment with an opportunity to provide “clarifying information” before a final decision is made. Ordinance 2012-1015 applies to all contractors doing business with the City of Pittsburgh, subject to certain exceptions, and contracts will contain a provision requiring the contractor and all subcontractors to comply with Ordinance 2012-0013. The full text of the Ordinances is available here ‘Ordinance 2012-0013’ and here ‘Ordinance 2012-1015.’
- On December 6, 2012, the City Council of Wilmington, Delaware passed Resolution 12-086 to encourage “ban the box” policies on all City employment applications. Mayor James Baker then signed Executive Order 2012-3 on December 10, 2012 mandating the so-called Ban the Box ordinance and removing the criminal history inquiry on all non-uniformed employment applications for the City. Applicants receiving a conditional offer of employment will be asked to consent to a criminal background check. The City’s Department of Human Resources will weigh certain factors if applicants have criminal histories, including the nature and severity of the crime committed, time passed since the offense occurred, and evidence of rehabilitation. The Resolution and Executive Order do not apply to private employers. Resolution 12-086 is available at: http://www.ci.wilmington.de.us/docs/1406/3768.pdf. Executive Order 2012-3 is available at: http://www.ci.wilmington.de.us/news/news.php?newsID=640.
- The City of Newark, New Jersey passed Ordinance 12-1630 that took effect November 18, 2012 and banned the box on job applications asking applicants about criminal records until they have been deemed qualified and eligible for employment and after a conditional job offer, thus restricting the ability of employers in the city with five or more employees to run criminal background checks. Ordinance 12-1630 prohibits employers from performing “pre-application” criminal background checks and denying employment based on background check results conducted post-offer without an individualized analysis of the criminal background using factors listed in the Ordinance. The text of Ordinance 12-1630 is available at http://www.esrcheck.com/file/NewarkOrdinance12-1630Text.pdf.
- Since July 1, 2012, in an effort to give ex-convicts a second chance for employment, a Ban the Box ordinance in the City of Detroit has implemented a new hiring policy that requires business vendors and contractors to remove the criminal record question on job applications to qualify for future contracts. Members of the ‘Ban the Box’ Coalition had persuaded the Detroit City Council in September 2010 to bar the question on city employment applications asking candidates to check a box if they had any convictions and asked the City to extend the ban on inquiring about criminal records to city vendors and contractors. More information is available at http://www.detroitmi.gov/Portals/0/docs/legislative/kenyatta/Ordinances/BantheBoxOrdFinal9-14-10.pdf.
Two recent reports from NELP – a national advocacy organization for employment rights of lower-wage and unemployed workers – reveal more than 40 cities and counties and seven states have adopted “Ban the Box” policies. In an effort to provide fair employment opportunities for ex-convicts, other cities across the country have joined the ‘Ban the Box’ movement. According to the NELP Resource Guide ‘Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records’ updated in November 2012, the following 43 cities and counties have enacted ban the box laws to reduce barriers for applicants with criminal records seeking work in recent years (not counting the recent additions of Pittsburgh, PA and Wilmington, DE):
- Alameda County, CA; Atlantic City, NJ; Austin, TX; Baltimore, MD; Berkeley, CA; Boston, MA; Bridgeport, CT; Cambridge, MA; Carson, CA; Carrboro, NC; Chicago, IL; Cincinnati, OH; Cleveland, OH; Compton, CA; Cumberland County, NC; Detroit, MI; Durham City, NC; Durham County, NC; East Palo Alto, CA; Hartford, CT; Jacksonville, FL; Kalamazoo, MI; Memphis, TN; Minneapolis, MN; Multnomah County, OR; Muskegon County, MI; Newark, NJ; New Haven, CT; New York, NY; Newport News, VA; Norwich, CT; Oakland, CA; Philadelphia, PA; Providence, RI; Richmond, CA; San Francisco, CA; Santa Clara County, CA; Seattle, WA; Spring Lake, NC; St. Paul, MN; Travis County, TX; Washington, DC; Worcester, MA.
The NELP Resource Guide ‘Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records Resource Guide’ is available at: http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1.
According to an August 2012 NELP Briefing Paper ‘States Adopt Fair Hiring Standards: Reducing Barriers to Employment of People with Criminal Records,’ there are currently seven states have adopted ban the box reform (six states with statutes and one state with an administrative directive):
- California State Personnel Board (SPB) Memo administrative directive applies to state employment. See: http://spb.ca.gov/content/pinkies/P100625.pdf.
- Colorado House Bill 1263 applies to state employment and licensing and job-related factors. See: http://www.leg.state.co.us/CLICS/CLICS2012A/csl.nsf/fsbillcont3/58513434CDFA85B087257981007F5AE8?Open&file=1263_enr.pdf.
- Connecticut: House Bill 5207 applies to state employment and licensing, job-related factors, and limits on information. See; http://www.cga.ct.gov/2010/ACT/Pa/pdf/2010PA-00142-R00HB-05207-PA.pdf.
- Hawaii House Bill 3528 applies to public and private employment and limits on information. See: http://dakine.uhwo.hawaii.edu/clear/HRS378.html#S2.
- Massachusetts Senate Bill 2583 applies to public and private employment, limits on information, and negligent hiring. See: http://www.esrcheck.com/file/MA-Background-Check-Law-SB2583.pdf.
- Minnesota House File 1301 applies to public employment, job-related factors, and limits on information. See: https://www.revisor.mn.gov/bin/bldbill.php?bill=H1301.3.html&session=ls86.
- New Mexico Senate Bill 254 applies to public employment and licensing and limits on information. See: http://www.nmlegis.gov/lcs/_session.aspx?Chamber=S&LegType=B&LegNo=254&year=10.
The NELP Briefing Paper ‘States Adopt Fair Hiring Standards: Reducing Barriers to Employment of People with Criminal Records’ is available at: http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1.
Along with states, cities, and counties, the federal government is looking more closely at the use of criminal records by employers for employment decisions. Legislation in the U.S. House of Representatives – H.R. 6220, The “Ban the Box Act” – would prohibit most employers “from inquiring whether an applicant for employment has been convicted of a criminal offense, except in certain circumstances.” H.R. 6220 would allow an employer to inquire whether an applicant has ever been convicted of a criminal offense only “(1) after a conditional offer for employment has been extended to an applicant; or (2) where the granting of employment may involve an unreasonable risk to the safety of specific individuals or to the general public.” The specific jobs that H.R. 6220 decides may involve “unreasonable risk” as well as what factors would constitute an “unreasonable risk” would be determined through the rulemaking process. The text of the bill is available at: http://www.gpo.gov/fdsys/pkg/BILLS-112hr6220ih/pdf/BILLS-112hr6220ih.pdf.
In addition, at a meeting on April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – voted 4-1 to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. One of the recommendations of the EEOC Guidance is suggesting “Ban the Box” approach for employers to comply with the nation’s civil rights laws. The new EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Employment Screening Resources (ESR) recommends that private employers redo their application forms and also use a “ban the box” approach when it comes to criminal records even if not required by a state or local law. Asking about criminal records early in the hiring process serves as an early knock-out punch before a candidate has the chance to be considered on his or her qualifications, and unnecessarily exposes employers to allegations they are automatically tossing out applications with a criminal record. An employer is better served using good hiring techniques based upon neutral factors to whittle down the applicant pool. The initial pool of applicants can be reviewed based upon knowledge, skills, abilities and experience. At some appropriate time, such as an interview, when an employer has narrowed the field, an appropriate criminal question can be asked. Asking it early does not accomplish that much and unnecessarily exposes an employer to potential allegations of discrimination. An employer may find that a candidate that would have otherwise been eliminated early due to a criminal record is, in fact, a good candidate for the position. When an employer does ask about a past criminal record, an effort should be made not to ask a broadly worded question that may encompass criminal records that are either too old or irrelevant for the job, since that can have the impact of imposing a lifetime ban on an applicant.
The underlying issue is that the use of criminal records is a difficult issue because it involves important American values that can seem to conflict. On one hand, Americans value public safety and a safe workspace with honest and qualified employees. On the other hand, society has a strong belief in second chances, and that a person’s past should not hold them back forever, particularly for more minor offenses. After all, America is country that prides itself on second chances. The issue is how to draw lines that both protect innocent people and, at the same time, do not burden ex-offenders, their families, and the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, he or she cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.
For more information about Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide screening company accredited by The National Association of Professional Background Screeners (NAPBS®) – visit http://www.esrcheck.com or call Toll Free 888.999.4474. The 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ is at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.
More information about these trends is available in the updated 2nd Edition of “The Safe Hiring Manual” by ESR Founder and CEO Attorney Lester Rosen. For more information, visit http://www.esrcheck.com/SafeHiringManual.php.
Sources: Ordinance 2012-0013: http://pittsburgh.legistar.com/LegislationDetail.aspx?ID=1041754&GUID=1BD33F1A-B062-4A9F-B003-9F51BBBE3D43&Options=ID|Text|&Search= Ordinance 2012-1015: http://pittsburgh.legistar.com/LegislationDetail.aspx?ID=1255090&GUID=838F230C-B8B9-4829-9D06-2D5E2B9AE569&Options=ID|Text|&Search= Resolution 12-086: http://www.ci.wilmington.de.us/docs/1406/3768.pdf Executive Order 2012-3: http://www.ci.wilmington.de.us/news/news.php?newsID=640 Ordinance 12-1630 http://www.esrcheck.com/file/NewarkOrdinance12-1630Text.pdf. City of Detroit Ordinance: http://www.detroitmi.gov/Portals/0/docs/legislative/kenyatta/Ordinances/BantheBoxOrdFinal9-14-10.pdf California State Personnel Board (SPB) Memo: http://spb.ca.gov/content/pinkies/P100625.pdf Colorado House Bill 1263: http://www.leg.state.co.us/CLICS/CLICS2012A/csl.nsf/fsbillcont3/58513434CDFA85B087257981007F5AE8?Open&file=1263_enr.pdf Connecticut: House Bill 5207 http://www.cga.ct.gov/2010/ACT/Pa/pdf/2010PA-00142-R00HB-05207-PA.pdf Hawaii House Bill 3528 http://dakine.uhwo.hawaii.edu/clear/HRS378.html#S2 Massachusetts Senate Bill 2583 http://www.esrcheck.com/file/MA-Background-Check-Law-SB2583.pdf Minnesota House File 1301 https://www.revisor.mn.gov/bin/bldbill.php?bill=H1301.3.html&session=ls86 New Mexico Senate Bill 254 http://www.nmlegis.gov/lcs/_session.aspx?Chamber=S&LegType=B&LegNo=254&year=10 EEOC Guidance http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. H.R. 6220 http://www.gpo.gov/fdsys/pkg/BILLS-112hr6220ih/pdf/BILLS-112hr6220ih.pdf http://www.esrcheck.com/wordpress/2012/11/16/newark-bans-the-box-by-restricting-use-of-criminal-background-checks-by-employers-starting-november-18/ http://www.esrcheck.com/wordpress/2012/10/12/ban-the-box-policies-removing-questions-about-criminal-records-from-job-applications-spreading-in-us/ http://www.esrcheck.com/wordpress/2012/10/12/ban-the-box-policies-removing-questions-about-criminal-records-from-job-applications-spreading-in-us/ http://www.esrcheck.com/wordpress/2012/08/10/ban-the-box-act-would-prohibit-most-employers-from-asking-applicants-about-criminal-records-until-job-offer/
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