Ban the Box Will Become More the Rule than Exception when Background Screening Workers

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Written By ESR News Blog Editor Thomas Ahearn

The Ban the Box movement that works to prevent employers from asking job applicants about their criminal history on the initial applications is spreading rapidly across the United States, with 24 states and over 150 cities and counties having such laws. The fact that Ban the Box laws will become more the rule than the exception when background screening potential employees is Trend Number 1 in the Employment Screening Resources® (ESR) 10th annual ‘ESR Top Ten Background Check Trends’ for 2017.

“Ban the Box seeks to remove the question from either written or electronic job applications that applicants are asked to check if they need to answer ‘Yes’ to the question asking if they have a criminal past to help remove barriers to employment for qualified workers with criminal records so they can be judged first on their knowledge, skills, abilities, and qualifications to do the job. However, if Ban the Box laws go too far they could inadvertently harm the very people they are trying to protect,” says ESR founder and CEO Attorney Lester Rosen. The list featuring emerging and influential trends in the background check industry for 2017 will be available at www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

The box in “Ban the Box” is a shorthand reference to a paper application that many employers used in the past that asked about a criminal conviction at the time of application, providing a check box for the applicant to answer “yes” or “no.” As a practical matter, ex-offenders could safely assume that most employers would automatically reject them, meaning ex-offenders may be “chilled” or deterred from even applying for jobs in the first place because the odds were stacked against them.

In the soon to be released 3rd edition of The Safe Hiring Manual, Rosen explains how the “issue of whether employers can use a job application to ask about an applicant’s criminal record is becoming more complicated.”  The purpose is to give those applicants with criminal pasts a fair shot at obtaining employment. By removing this question, supporters claim job applicants can be sure that they will not be automatically excluded from consideration for a job because of their past mistakes.

Rosen adds: However, ban-the-box does NOT mean there can never be a criminal background check. A Ban the Box approach prevents an early knock-out punch before ex-offenders even have the opportunity to be considered on their individual merits.  The concern is that their employment application will be automatically rejected just based upon their status as ex-offenders as opposed to what they can offer an employer.  That does not mean that a background check will not be conducted or that an employer cannot exercise appropriate due diligence, but just that it is delayed until later in the process.

According to the National Employment Law Project (NELP), 24 states representing nearly every region of the country that have adopted some form of Ban the Box policies. The states with Ban the Box laws are California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and Wisconsin. In addition, major U.S. cities with Ban the Box laws include: Atlanta, GA; Boston, MA; Charlotte, NC; Detroit, MI; Los Angeles, CA; New Orleans, LA; New York, NY; Philadelphia, PA; Pittsburgh, PA; Portland, OR; San Francisco, CA; Seattle, WA; St. Louis, MO; and Washington, DC.

The U.S. Equal Employment Opportunity Commission (EEOC) – the agency responsible for enforcing federal laws prohibiting employment discrimination – also endorsed a Ban the Box approach for private employers, although it was not a mandatory rule.  On April 25, 2012, the EEOC issued updated   ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ that contained the following statement about Ban the Box:

Some states require employers to wait until late in the selection process to ask about convictions. The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience. As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

According to NELP, which works to strengthen protections and support for low-wage workers and the unemployed, an estimated 70 million people in the United States – or nearly 1 in 3 U.S. adults – have a prior arrest or conviction record. NELP estimates that there are now over 206 million people in the United States – almost two-thirds of the U.S. population – that live in an area with some form of Ban the Box policy.  Learn more at www.nelp.org/campaign/ensuring-fair-chance-to-work/.

In December 2016, ESR News reported that the Los Angeles City Council voted to pass a ‘Fair Chance Initiative’ ordinance to “Ban the Box” from job applications and prevent public and private employers with 10 or more employees from asking applicants about criminal records while delaying background checks until conditional job offers. Mayor Eric Garcetti signed the Fair Chance Initiative into a law which will take effect January 22, 2017.

In March 2016, ESR News reported that an update to the Philadelphia, Pennsylvania Ban the Box legislation signed into law by Mayor Michael A. Nutter – Bill No. 150815 – An Ordinance Amending Chapter 9-3500 of The Philadelphia Code entitled “Fair Criminal Records Screening Standards” – would take effect on Monday, March 14, 2016, and help strengthen anti-discrimination protections for ex-offenders seeking employment in the City.

ESR News also reported that the Ban the Box movement reached the White House. On August 16, 2016, the White House announced a new round of signers of the Obama administration’s Fair Chance Business Pledge that includes Walmart – the largest private employer in the world – to bring the total number of companies and organizations pledging to “Ban the Box” and help job candidates with criminal histories to return to the workforce to 185 employers.

According to the ‘FACT SHEET: White House Announces New Commitments to the Fair Chance Business Pledge,’ companies and organizations that pledged to Ban the Box collectively employ over 3 million Americans. By signing the Fair Chance Business Pledge, these companies demonstrate a commitment to reduce barriers to jobs for the approximately 70 million Americans with some type of criminal record by:

  • Using practices such as “Ban the Box” to delay criminal history questions until later in the hiring process;
  • Ensuring that information regarding an applicant’s criminal record is considered in proper context; and
  • Engaging in hiring practices that do not unnecessarily place jobs out of reach for those with criminal records.

The White House FACT SHEET explains that the Obama Administration is committed to reducing barriers facing individuals with criminal records trying to reenter society. Over 2.2 million individuals are incarcerated in American prisons and jails and the majority of them will return to their communities. Improving education and job opportunities for these individuals reduces crime and helps communities.

Larger U.S. employers who have taken the White House Fair Chance Business Pledge to Ban the Box include American Airlines, Best Buy, Coca-Cola, Dropbox, Facebook, Google, Hersheys, Johns Hopkins Medical Center, Kellogg Company, Koch Industries, Lyft, Microsoft, Oklahoma City Thunder, PepsiCo, Prudential, Staples, Starbucks, Uber, UnderArmour, University of Pennsylvania, Walmart, and Xerox.

The White House launched the Fair Chance Business Pledge in April 2016 to encourage U.S. companies to ensure that all Americans – including individuals with a criminal record – have the opportunity to succeed by eliminating barriers for those job seekers with a criminal record. A full list of employers taking the Ban the Box pledge is at www.whitehouse.gov/issues/criminal-justice/fair-chance-pledge.

Employers can be punished for not following Ban the Box laws. In January 2016, ESR News reported that New York State Attorney General Eric T. Schneiderman announced settlements totaling $195,000 with two major national retailers – Big Lots Stores and Marshalls – over violations of a Ban the Box law that prohibits employers from enquiring about the criminal history of job applicants on initial employment applications at their Buffalo stores.

Schools are also deciding to Ban the Box. ESR News reported that, starting in the Fall of 2017, the University of Minnesota will adopt a Ban the Box rule on student admission applications and applicants to the school will no longer have to answer questions about past felony convictions or pending criminal charges. ESR News also reported that the State University of New York (SUNY) voted to pass a Ban the Box resolution policy that will eliminate questions about criminal records on applications filled out by students wishing to attend any of the SUNY schools in New York, according to a memorandum to Members of the SUNY Board of Trustees. The effective date will be July 1, 2017.

However, ESR News has reported that the Ban the Box movement does have some critics. A study issued in July 2016 – Does “Ban the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden – claimed Ban the Box policies decreased the probability of being employed by 5.1 percent for young, low-skilled African-American men, and by 2.9 percent for young, low-skilled Hispanic men.

The joint study uncovered some negative effects of Ban the Box: We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men. These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.

While Ban the Box is meant to help minority job seekers, the study found “removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable.” The study by Jennifer L. Doleac and Benjamin Hansen is available at www.nber.org/papers/w22469.

ESR News also reported that study released in June 2016 – Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment – found that white job applicants were four times more likely to receive a call back from an employer for employment than black job applicants after Ban the Box policies were implemented, compared to only slightly more likely before any Ban the Box policy.

The study found that before any Ban the Box policies took effect that white job applicants were only slightly more likely to receive a call back from an employer for jobs than black job applicants. However, after Ban the Box policies were implemented, white job applicants were four times more likely to receive a call back from an employer for employment than black job applicants. The study by Amanda Y. Agan and Sonja B. Starr is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795795.

ESR News reported that in August 2016 – to counter studies critical of Ban the Box – NELP released a policy brief entitled Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies that was critical of two studies that claim Ban the Box policies meant to help applicants with criminal records find work could do “more harm than good” by unintentionally harming minority job seekers. NELP believes these Ban the Box studies reach “the wrong conclusion.”

According to the Ban the Box policy brief from NELP: Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record.  One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion.

The policy brief written by Maurice Emsellem and Beth Avery argues that Ban the Box studies “require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.” In reviewing these Ban the Box studies, NELP concludes:

  • The core problem raised by the studies is not Ban the Box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.”
  • Ban the Box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records.
  • When closely scrutinized, the new studies do not support the conclusion that Ban the Box policies are responsible for the depressed hiring of African Americans.
  • The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of Ban the Box laws.

The policy brief from NELP describes Ban the Box in the following manner: “Ban the box”—the policy reform typically associated with delaying background check inquiries—was not intended as the silver bullet to a racially biased criminal justice system.  The rallying cry of ban-the-box raised consciousness; it elevated the plight of millions of people struggling to gain a foothold because of a past record. 

NELP concludes that “the studies focus their criticism on the Ban the Box policy—not the racism that the policy exposes.” The policy brief about the Ban the Box studies from NELP, a national advocacy organization for employment rights of lower-wage workers, is available for download at www.nelp.org/publication/racial-profiling-in-hiring-a-critique-of-new-ban-the-box-studies/.

However, Rosen has also warned that Ban the Box could also inadvertently do more harm than good. “Unfortunately, some Ban the Box laws go beyond the application process by regulating what criminal matters may be used in the background screening process,” Rosen says. “Some of these laws go beyond giving ex-offenders the chance to compete on an even playing field for jobs and include regulation of what criminal matters an employer can consider after a job offer and even imposing limitations on the type, nature, and age of criminal records employers may consider for a background check of applicant.”

Rosen says some Ban the Box efforts may have the unintended consequence of hurting ex-offenders.  The San Francisco Fair Chance Ordinance (FCO) that took effect August 13, 2014 is an example of a Ban the Box law that may go too far. The San Francisco FCO prohibits affected employers in the City and County of San Francisco from considering a conviction older than seven (7) years.  Rosen says that Ban the Box laws such as the San Francisco FCO may force employers to find another solution that may negatively affect ex-offenders while enabling employers to comply with the letter of the law and protect their organizations. For example, employers may turn to employment history, on the basis that uninterrupted employment may be a better tool to avoid risk.  The downside is that not only ex-offenders may be penalized, but individuals with an interruption in their job history can also suffer negative consequences. To read an article on how the over regulation of criminal records can have the unintended consequence of hurting ex-offenders, visit www.esrcheck.com/wordpress/2015/08/13/san-francisco-ban-the-box-ordinance-may-hurt-ex-offenders-the-law-was-meant-to-help/.

Employment Screening Resources® (ESR) – a global provider of background checks – offers employers a Ban the Box Information Page with breaking news and legal updates about the Ban the Box movement concerning states, cities and counties, and resources. The ESR Ban the Box Information Page is available at www.esrcheck.com/Ban-the-Box/.

ESR Top Ten Background Check Trends for 2017 Webinar

Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen will host a live complimentary webinar entitled ‘ESR Top Ten Background Check Trends for 2017’ on Wednesday, January 18, 2017, from 11:00 AM to 12:00 PM Noon Pacific Time. To register for the free webinar, please visit https://attendee.gotowebinar.com/register/733293271056375556.

The webinar is approved for 1.0 (HR (General)) recertification credit hours toward PHR, SPHR, and GPHR recertification through the HR Certification Institute (HRCI). The webinar is worth 1.0 Professional Development Credit (PDC) from the Society for Human Resource Management (SHRM) for the SHRM Certified Professional (SHRM-CP™) and SHRM Senior Certified Professional (SHRM-SCP™).

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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