Employer Protection from Lawsuits Critical to Advancing Ban the Box Laws and Second Chance Programs

Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

“Ban the Box” laws and Second Chance Programs aimed at giving ex-offenders a fair chance to find work and reenter the workforce often have a major deficit – employers trying to do the right thing still have substantial legal exposure in many states, according to an article written by background check expert Attorney Lester Rosen, founder and chief executive officer (CEO) of Employment Screening Resources® (ESR).

In his article titled “How a Simple Tort Reform Can Super Charge Fair Chance Hiring Laws and Help Ex-Offenders Obtain a Second Chance – A California Case Study” published on LinkedIn Pulse on February 19, 2020, Rosen used the California Fair Chance Act (FCA) / Assembly Bill 1008 (AB 1008) as a case study to examine how employer tort immunity is the missing element in getting ex-offenders back to work. 

On October 14, 2017, California Governor Jerry Brown signed the FCA (AB 1008) into law to restrict an employer’s ability to make hiring decisions based solely upon a job candidate’s criminal history. The legislation – also known as the “Ban the Box” law – took effect on January 1, 2018, and followed in the footsteps of similar local legislation already on the books in the cities of Los Angeles and San Francisco.

Rosen wrote how the new “Ban the Box” legislation would “provide as level a playing field as possible so that a criminal record does not amount to a perpetual cyclical sentence of further unemployment and recidivism. When ex-offender job applicants are not obstructed by stigma from securing employment for which they are qualified, the applicant, the employer, and the state all stand to benefit.”

  • It is in the ex-offender’s interest – Most directly and clearly, the ability to regain gainful employment is of transformational importance in the life of an ex-offender returning to society. Apart from being crucial to a person seeking to establish an income and to gain a lawful means of meeting his living expenses, the acquisition and holding-down of employment is of critical psychological benefit seeking to rediscover and reclaim a place for himself within society.
  • It is in the employer’s interest – Any employer has an obvious interest in being able to conduct a search for new employees and select its hires from among the most qualified possible set of candidates… When an employer is forced, one way or another, to introduce and consider potentially irrelevant criteria (such as the inflated liability risk of hiring an ex-offender under the current FCA framework), the employer compromises its ability to obtain the best candidate for the job.
  • It is in the state’s interest – First, and perhaps most strikingly, because greater employment for ex-offenders leads to markedly reduced recidivism, the state can expect to benefit by a reduction in the crushing burden of recidivism-associated expenses… Second, when the stigma of conviction no longer prevents ex-offenders from being considered viable and valued members of the workforce, the productive capacity of the state’s workforce swells accordingly.

However, Rosen – author of “The Safe Hiring Manual” – believes the FCA as implemented still suffers from important weaknesses. “Ultimately, under the FCA, an employer making a final decision on an otherwise qualified applicant with a criminal history is still put to the question of whether it wants to consciously accept the risks associated with a known ex-offending employee,” he wrote in his article.

Rosen thinks the solution is a simple one already adopted by some of the many states that have adopted Ban the Box laws. “In light of this shortcoming, many states with Ban-the-Box legislation have already taken the logical next step in achieving the purposes of that legislation: by creating additional legal protections against liability for employers who hire ex-offenders under the Ban the Box framework.”

Rosen continued: “In light of the clear benefits that result when ex-offenders are given a fair seat at the employment table, many forward-thinking state legislatures have already acted to bring in enhanced legislation that seeks to patch the holes in the Ban the Box framework by balancing employers’ hiring incentives and relieving them of the burden of liability risk associated with ex-offenders.”

Rosen concluded that employer protection from lawsuits is critical to advancing the goals of the Ban the Box laws and Second Chance programs. He wrote: “the most promising candidate is a straightforward, appropriately circumscribed immunity for the employer that applies once the employer has performed an appropriate background check and ‘individualized assessment’ in accordance with the FCA.”

The “Ban the Box” movement – which seeks to advance employment opportunities for ex-offenders by eliminating any inquiry into the criminal history of applicants on initial job applications – has spread rapidly in the United States. As of February 2020, 35 states and more than 150 cities and counties in the U.S. have passed Ban the Box laws, according to the National Employment Law Project (NELP).

“Ban the Box” laws and Second Chance programs that help give job applicants with a prior criminal record – an estimated 70 million people or nearly one in three U.S. adults – an opportunity to find work after leaving prison will spread in 2020, according to leading global background check firm Employment Screening Resources® (ESR) that compiled the “ESR Top Ten Background Check Trends” for 2020.

Employment Screening Resources® (ESR) offers two complimentary white papers titled “Ban the Box Now More the Rule than Exception for Employers when Screening” and “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce” along with a Ban the Box Resource Page that contains an interactive map with the latest Ban the Box laws. To learn more about ESR, visit www.esrcheck.com.

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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