Boxed In by Good Intentions
By Pan Demetrakakes
The drive to limit how and when employers can ask about the criminal history of job applicants could have profound, and not necessarily positive, implications for both employers and applicants, according to legal and industry experts.
These measures are commonly called “Ban the Box” laws, after the box on an employment application that job seekers are commonly asked to check if they have ever been convicted of a crime. Ban the Box laws that apply to all employment, both public and private, have been adopted by nine states and 13 local jurisdictions (counties and municipalities), according to the National Employment Law Project. (Twelve other states and about 100 local jurisdictions have Ban the Box laws that apply only to public employment.) Similar measures are being pushed across the country.
Ban the Box laws seek to remove inquiries into criminal histories from job applications, but after that, they vary in the restrictions they place on employers, says Rod Fliegel, co-chair of the background check and privacy practice group at Littler, a labor law firm.
“The least restrictive tend to be more true to the name ‘Ban the Box,’ where the law simply says you cannot ask on your job application about prior criminal records,” Fliegel says. All the laws allow employers to find out about a potential employee’s criminal conviction at some point, but they vary as to what that point is—and what they have to do afterward.
Perhaps the most restrictive Ban the Box measure is the ordinance New York City passed in June 2015. “What New York City requires is, if you are going to potentially disqualify an applicant because of a criminal record, you have to basically provide them with a notice that shows how you as the employer work through eight factors that legally you must consider in assessing the significance of the criminal record to the particular job the individual has applied for,” Fliegel says. These factors include the date and severity of the offense.
In the end, no matter how many hoops they have to jump through, employers ultimately have the right to reject applicants with criminal histories if that’s what they want. However, it’s conceivable that doing so wholesale, indiscriminately, might open them up to legal trouble, Fliegel says. Precluding applicants with recent and/or serious crimes in their past probably wouldn’t be a problem, he says, but “a pattern of rejecting ex-offenders even with very old convictions, for less serious types of crimes—that may attract the attention of the EEOC [Equal Employment Opportunity Commission] or state regulators.”
Another difficulty may be what happens if an ex-offender is hired and proceeds to commit a crime on the job, like attacking a customer or stealing her identity. In such a case, the victim could sue and allege that the employer failed to do due diligence into the employee’s background.
“That’s the rock and the hard place for the employer,” Fliegel says.
On the other hand, two recent studies show that Ban the Box laws may have a quite unintended, and chilling, effect: precluding minorities from being considered at all.
In one study, researchers from Princeton and the University of Michigan submitted thousands of fictitious job applications to employers in New York City and New Jersey, randomly assigning racial and (before Ban the Box) criminal backgrounds among them. It found that before Ban the Box, purportedly white applicants reporting no criminal backgrounds were called back 7 percent more often than black ones; after Ban the Box laws were put into effect and potential criminal backgrounds were not disclosed, the racial callback gap soared to 45 percent.
In the other study, researchers from the University of Virginia and the University of Oregon examined employment data for young, low-skilled minority men before and after Ban the Box in jurisdictions across the country. They found that employment declined 5.1 percent for blacks, 2.9 percent for Hispanics. (Of course, outright hiring discrimination by race is illegal, but it’s difficult to prove and rarely enforced, labor law experts say.)