Beyond “Ban the Box”: Four Steps to Build on Fair Chance Hiring

Ban the Box, also referred to as fair chance hiring, is catching on as more and more jurisdictions adopt legislation applying to public agencies, private companies, or both. But is Banning the Box enough to secure a second chance for millions of workers with criminal records? LAC’s Senior Criminal Justice Policy Associate Mark O’Brien explores recent fair hiring developments and recommends four steps that should be taken to support second chances for workers with criminal records.

Legal Action Center recently celebrated implementation of the Fair Chance Act in New York City and the announcement by President Obama that his Administration would adopt fair hiring practices for federal employees. Ban the Box, also called fair chance hiring, refers to policies that prohibit inquiries into a job applicant’s criminal record until they have an opportunity to introduce themselves and their qualifications for the job. “Applicants get reviewed on their merits before the employer considers their background,” said Anita Marton, LAC’s Deputy Director and Vice President. “It’s a huge step forward for workers who might otherwise be shut out completely.”Emp App stock photo

At the same time, we must do more to eliminate discrimination that makes it hard for workers with criminal records to find a job, even after they get a chance to make a first impression. “A chance to present your qualifications is a critical step,” said LAC Director and President Paul Samuels. “But Ban the Box is not enough when thousands of laws bar people from jobs, and employers reject people because of unfounded fears or inaccurate background screens.”

So what else should we do to make sure workers with criminal records really have a fair chance? Here are four steps for going Beyond Ban the Box to expand opportunities for people with criminal records to work and succeed.

1) Eliminate unreasonable legal restrictions on employment

Thousands of federal and state laws and regulations limit the ability of people with criminal records to work in certain fields. For example, if you have ever worked any job in a health facility- doctor, nurse, lab technician, food service, or janitor to name a few- and are convicted of a drug felony, you will be barred from further work in the health care industry for a minimum of five years and possibly more.

Policymakers must tailor employment restrictions like these to reduce actual risks. Employment restrictions should apply only to crimes that relate to the type of work regulated. They should be limited in time and provide every individual with a chance to receive an exception based on evidence of rehabilitation. They must balance the need for safety with the reality that 70 million Americans with criminal records deserve a chance to work and that we are all better off when everyone gets a fair chance to compete.

2) Improve background checking systems and processes

Workers are subjected to criminal record searches that rely on notoriously inaccurate criminal record information. Problems like mismatched identities, inaccurate information, and reports that contain sealed or expunged records are common. The recent U.S. Consumer Financial Protection Bureau enforcement action against General Information Services and e-Background-checks.com for $13 million provides an example of how these companies can violate workers’ rights.

Government records are no better. The FBI background check system contains records that are about half inaccurate or incomplete, and when LAC looked at New York state RAP sheets, we found they were about 30% inaccurate.

Congress and the states should clean up their own records and aggressively enforce laws like the Fair Credit Reporting Act that protect people from some of the worst private background screening practices.

Employers and background screening companies should follow our Best Practices Standards: The Proper Use of Criminal Records in Hiring. LAC’s National H.I.R.E. Network and its partners developed the standards to “help businesses comply with the law and implement fair practices that safely give them access to the large pool of workers with criminal records,” said National H.I.R.E. Network Director Roberta Meyers.

 “A chance to present your qualifications is a critical step,” said LAC Director and President Paul Samuels. “But Ban the Box is not enough when thousands of laws bar people from jobs, and employers reject people because of unfounded fears or inaccurate background screens.”

3) Provide strong anti-discrimination protections for workers with criminal records

Workers with criminal records face discrimination in employment that can be as extreme as equating any criminal record with a high risk of dangerous or harmful workplace behavior or negligent hiring liability. In some places, workers receive very little protection from discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance under Title VII of the Civil Rights Act limiting the use of criminal records and enforced the law against large employers like Pepsi who have unfairly used criminal records to exclude people from work.

New York’s Human Rights Law and Article 23-A of the state’s Correction Law provide the best available model for state laws protecting workers from criminal record discrimination. Employers may not consider arrests that did not lead to a conviction, and they can consider only convictions with a direct relationship to the job or reflecting an unreasonable risk to people or property. Employers must consider a number of other factors in addition to the criminal record, including the seriousness of the offense, how long ago it occurred and how old the person was at that time, and evidence of rehabilitation. They must also notify workers of their rights under the law.

The EEOC should expand its aggressive efforts to enforce Title VII of the Civil Rights Act. Congress and the states should follow New York’s lead and pass laws that protect workers from discrimination.

4) Limit negligent hiring liability for employers who follow fair hiring practices

Employers are understandably concerned that hiring a worker with a criminal record could result in negligent hiring liability for their business if the worker commits a crime on the job. These cases are exceedingly rare, and employers who follow fair background screening procedures like those in the Best Practice Standards are unlikely to confront this type of liability.

Still, states should follow the lead of New York and Florida by providing explicit protections from negligent hiring liability for employers who follow the law and make reasonable judgments about a worker’s character based on criminal history and other relevant information.

[Policymakers] must balance the need for safety with the reality that 70 million Americans with criminal records deserve a chance to work and that we are all better off when everyone gets a fair chance to compete.

Conclusion

Every jurisdiction should Ban the Box as one step toward ensuring workers with criminal records have a chance to show their qualifications. But that is not enough.

People who have paid their debt to society must have a real chance to compete for jobs, and employers must have greater protections when doing the right thing by giving qualified workers with criminal histories a fair chance to work. Going Beyond Ban the Box with these four steps would be a boon to workers, employers, families, and communities.

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