Thursday, January 9, 2014

Should We Ban the Box?



Recently, retailer Target joined 10 states and 50 cities that have adopted policies that prohibit job applications from asking about criminal convictions or arrests. Target said it will remove questions about prior arrests on its job applications. At this time, many of these city and state laws pertain to public employers or government contractors; however Minnesota (where Target is based), has expanded its law to private employers.

Employers covered under many ban-the-box laws cannot ask applicants about criminal convictions until an interview or even after they’ve made a conditional offer of employment. The belief is that ex-offenders will have a better chance at getting a job if they’re not eliminated in the application phase.
 
In a recent NPR interview, Madeline Neighly, a staff attorney for the National Employment Law Project, or NELP, spoke for many proponents of this practice, explaining that "This is an opportunity for folks to put their qualifications forward and to be judged on those first. This is merely to give all folks the opportunity to describe themselves and their qualifications and be judged on those first. And then later in the process, if the employer does the criminal background check at that time, they're much more likely to comply with the guidance set out by the Equal Employment Opportunity Commission that explains how employers need to take this information into account. Looking at, is it job related? You know, what's the conviction? How is that related to the job in question, instead of just disqualifying folks first off."

This reasoning assumes, and I believe wrongly, that many employers have a blanket policy of not hiring those with any criminal conviction, and wouldn’t take into consideration the type of offense, when it occurred, and its relevance to the specific job. Just as "one size fits all" does not work with such a blanket policy, nor does one size fits all work in applying such laws. It also assumes, that for some reason, having interviewed someone before finding out he/she has a criminal background, the hiring authority will be more likely to comply with the EEOC’s guidelines. I see no basis in reality for that assumption. In fact, I see very little evidence in reality that most employers don’t already employ a decision making process that takes these factors into consideration.

In some industries businesses simply cannot consider individuals with certain criminal convictions. Employers providing services such as childcare, health care, or transportation for example are required by law to perform a criminal background check and are prohibited from hiring people with certain convictions. Certain jobs require licenses, bonding or insurance that may be hindered by a criminal record. It is a safety measure. Do we want a child molester working at the community rec center? How about the embezzler handling your customers’ money or having access to enough information to commit identity theft? Asking about an applicant’s criminal background history is a valid question that has direct bearing on whether or not an otherwise qualified person can or should be hired. Unfortunately, as I’ve covered in an earlier post, the EEOC is nearly disregarding that fact in its guidance, leaving businesses in a no-win situation.

What I believe this whole argument is lacking is an element of honesty and disclosure, on both sides. Is it better for an applicant to know up front that his criminal history will bar him from certain jobs, or should he expend the time and energy in the application process only to find out later that he cannot be hired, or find out even after he’s actually been hired? Should businesses be forced to expend that same time, energy and cost upfront before finding out they cannot hire that candidate?

Smart employers consider the whole applicant. That includes skills, knowledge, and level of experience. Character, attitude and demeanor are often included in this mix. I may have an applicant with all the right experience, but a lousy attitude or who just may be a bad fit. I’m not going to let his experience overshadow those deficiencies.

Criminal history is a relevant factor in judging a candidate’s character, reliability and trustworthiness. Ban the box laws have the potential to endanger both employers and the public. We have a responsibility to protect our customers, other employees and our business. There is little doubt that when someone commits a crime in the course of or related to employment, the employer is often held responsible. "What? You knew this person had a record? You allowed him to have access to [insert victim or stolen property here]?" Yes, this happens. If we’re forced to ban the box, will the liability be removed as well? I doubt it.

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