Ban the Box Laws that Go Overboard May Hurt Ex-Offenders and the Unemployed in 2015

Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

Ban the Box laws, which protect ex-offenders from an “early knock out” punch in the hiring process based solely on the early disclosure of a criminal record, will quickly reach a tipping point in the U.S. in 2015. However, when these Ban the Box laws go too far the unintended consequence may well be that such laws actually hurt ex-offenders in the job market and can also hurt individuals who have been left unemployed by the recession. This is trend number 1 on the Employment Screening Resources (ESR) 8th Annual ‘ESR Top Ten Background Check Trends for 2015.’ For a list of background check trends, visit https://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

Ban the Box laws seeks to remove the box from job applications that applicants must check if they answer “Yes” to the question asking if they have past criminal records. By delaying this question until later in the hiring process, reformed ex-offenders can be judged first on their knowledge, skills, abilities, and qualifications to do the job. ESR supports Ban the Box and even offers a Ban the Box Information Page that contains links to news and resources about the Ban the Box movement. The ESR Ban the Box Page is available at https://www.esrcheck.com/Ban-the-Box/.

Ban the Box laws that remove criminal history questions from job applications are spreading rapidly across the United States and fast becoming a national standard that will soon affect most employers. According to research from the National Employment Law Project (NELP), approximately 70 U.S. cities and counties have passed Ban the Box legislation. Major U.S. cities with Ban the Box laws include: Atlanta, GA; Boston, MA; Chicago, IL; Philadelphia, PA; New Orleans, LA; New York, NY; San Francisco, CA; Seattle, WA; and Washington, DC. In addition, 13 states – California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, and Rhode Island – have Ban the Box restrictions in place. More information about Ban the Box from NELP is available at http://www.nelp.org/page/content/banthebox/.

The Ban the Box movement arose due to the large number of job seekers with some form of criminal record for arrests or convictions. A 2011 study by NELP called “65 Million Need Not Apply” found that nearly 65 million people in the U.S. – more than one in four adults – were estimated to have criminal records. NELP has since revised that number up to approximately 70 million U.S. adults. The report is at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1.

In 2014 alone several cities and counties passed Ban the Box legislation that removes the box applicants are asked to check on job applications if they have a criminal history and delays that question until later in the hiring process, usually until after the initial interview. These cities and counties include: Atlanta, GA; Montgomery County, MD; Roanoke, VA; Rochester, NY; St. Louis, MO; St. Petersburg, FL; and Washington D.C. Many of these local laws then go on to also regulate what criminal matters an employer who hires in that City in that city or county can consider.

Along with cities and counties, several states also joined the Ban the Box movement in some way in 2014. California put in place new job applications to comply with Assembly Bill 218 (AB 218) which took effect July 1, 2014. Illinois approved House Bill 5701, The Job Opportunities for Qualified Applicants Act that will take effect January 1, 2015. New Jersey passed (S2124) “The Opportunity to Compete Act” that will take effect March 1, 2015. Delaware passed House Bill 167. Some laws apply only to public employees in the states while other earlier laws apply to both public and private employees.

However, some “Ban the Box” laws go beyond the application process by regulating what criminal matters may be used in the background screening process. Some of these laws go beyond simply 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.  For example, such laws may also impose limitations on the type, nature, and age of criminal records employers may consider once the applicant is in the background check stage.

Unfortunately, such efforts may have the unintended consequence of hurting ex-offenders.  Another possible outcome is that such laws may hurt the employment prospects of individuals left unemployed for periods of time by the recession through no fault of their own. For example, the San Francisco Fair Chance Ordinance (FCO) – also known as the Ban the Box Ordinance – that took effect August 13, 2014 prohibits employers in the City and County of San Francisco with 20 or more employees from considering a conviction that is older than seven (7) years old.  Why this is critical is that San Francisco defines the seven year period starting from the date of sentencing.  The other 57 counties in California operate on a rule that a person needs be custody free for seven (7) years before a conviction becomes too old for a background check firm to report.  As a result, the San Francisco look back period is seven years even if a person has been in custody during those seven years.

The reason this is critical is because a person could have been convicted seven years and one day ago for a serious  offense, and then the day after they get out of custody, an employer would  not be legally able to consider such an offense , For example, a person convicted of a violent sexual offense could apply to work in a woman’s  shelter or child care center the  day after they are released from  prison  and an employer could not legally inquire about, discover or use the offense to protect a population at risk. Such a law potentially puts certain groups at great risk, such as the young, aged, infirmed, or challenged.  It could take just one “Willy Horton” type incident that receives national attention to set back the cause of “Ban the Box” nationwide.

Although it may well be understandable that less serious and non-violent offenders are given protection before the seven years has elapsed, the San Francisco law makes no exception for offenders just released for violent crimes or serious sexual assaults or jobs where there may be a bonafide reasons to disallow workers with certain types of convictions.

In reviewing the situation with employers it is clear that employer have arrived at a solution that will enable them to comply with the letter of the law as well as protect their organization and its client.  Since a serous barrier has been placed on their ability to obtain or use relevant criminal records, employers appear to be poised to utilize an applicant’s employment history as a leading barometer of safety.  The idea is that if an applicant has a documented employment history without significant interruptions, then an employer can have some degree of confidence that the person has probably not spent time in custody for a serious matter. Unfortunately, by forcing employers to rely more heavily on employment history, the San Francisco law also punishes individuals with no criminal record but who had difficulties maintaining a consistent employment record during the recession.

By over regulating the use of criminal records, second chance, worker rights and civil rights organizations will arguably make the situation for ex-offenders worse by encouraging employers to rely increasing on a solid and uninterrupted job history.  There is very little that can be done if employment history becomes the surrogate way to keep people with criminal records out of the workforce. Although there has been some effort to prevent discrimination against the currently unemployed, it is unlikely that any law can ever prohibit employers from asking about applicant credentials, including employment and education.

These types of local laws that go beyond the purpose of “Ban the Box” underscores the need for model legislation to help develop a workable national solution.  When individual counties or cities start passing laws that go beyond the core concept  and attempt to impose local rules on employers as a matter of social policy, such as occurred in San Francisco, it can create confusion and uncertainly  for employers, the public, and ex-offenders. It also creates the possibility that the public is placed in danger and that ex-offenders are hurt more than they are helped. In addition, when “second chance” laws are imposed on the local level, there is no ability to give employers any type of legislative protection from negligent hiring allegations. That can only be done on the state level.

In addition, without model rules, passionate and well-meaning advocacy groups in a city or county may be able to pass their “wish list” of changes without regard to the unintended consequences.  In addition, county or city government relying upon advocacy groups may not understand the consequences of the laws they are passing.   Having model legislation would give city and county officials a point of reference in reviewing proposed legislation. For more information, see trend number 3 on the ‘ESR Top Ten Background Check Trends for 2015’ about the ramifications of the localization of employment laws at https://www.esrcheck.com/wordpress/2014/12/22/employment-laws-will-become-fragmented-cities-states-pass-hiring-laws-2015/.

Although ESR is a longtime supporter of Ban the Box, ESR is also concerned those unchecked efforts that go too far will end up hurting ex-offenders as well as the unemployed. ESR has created a San Francisco Ban the Box Information Page and a San Francisco Ban the Box Ordinance “Cheat Sheet” Infographic to help San Francisco City and County employers quickly and easily understand the Fair Chance Ordinance. The page is at https://www.esrcheck.com/San-Francisco-Ban-the-Box-Ordinance/index.php. The “Cheat Sheet” Infographic is at https://www.esrcheck.com/San-Francisco-Ban-the-Box-Ordinance/BTB2/.  ESR also presented a webinar titled “Ban the Box – What Employers Need to Know” in November 2014 to show how Ban the Box laws that remove questions about criminal records of applicants from job applications are fast becoming a national standard that will soon affect all employers. To view a recording of the webinar, please visit https://attendee.gotowebinar.com/recording/430445970585554945.

ESR was involved with a group of national civil and workers’ rights organizations in writing a report titled ‘Best Practice Standards: The Proper Use of Criminal Records in Hiring’ that addressed the use of criminal records of job applicants by employers during employment background checks. The organizations preparing the report include the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute. The full report is available at https://www.esrcheck.com/file/Best-Practice-Standards-Criminal-Records.pdf.

ESR TOP TEN BACKGROUND CHECK TRENDS FOR 2015 WEBINAR

Employment Screening Resources® (ESR) will present a complimentary webinar hosted by ESR Founder and CEO Attorney Lester Rosen titled ‘ESR Top Ten Background Check Trends for 2015’ on Wednesday, January 21, 2015 from 11:00 AM to 12:00 PM Noon Pacific Time. To register for this webinar, please visit the registration link at https://attendee.gotowebinar.com/register/3656006267617568513.