According to the National Institute of Justice, selecting “yes” on a job application that asks “Have you ever been convicted of a misdemeanor or felony?” decreases the likelihood of securing a job by 50 percent. For Blacks, the figure is 65 percent.
In California, effective July 1, 2014, this may be less of a problem. That is because the legislature adopted a “Ban the Box” policy, which requires state and local government agencies to remove questions about conviction history from their job applications.
Under this law, which was approved by both the Assembly and Senate and signed by Gov. Jerry Brown on Oct. 10, 2013, public entities may only ask applicants about their criminal record, after determining if an individual meets the qualifications for a position.
Then officials can consider the applicant’s criminal convictions. This means potential employers cannot ask about criminal history on an application, but they can ask during an interview.
These provisions afford individuals with criminal records a fairer opportunity to rebuild their lives, support their families, and become productive members of their communities, says the National Employment Law Project (NELP), which was part of the coalition that helped push the California law.
An estimated 70 million Americans have criminal records, consequently with Ban the Box (formally called Assembly Bill 218), advocates say these individuals gain a chance to return to society to earn a consistent income and finally leave their criminal past behind. And with approximately two-thirds of ex-offenders getting rearrested within three years of release, supporters say employment can make re-entry into the justice system less likely.
Advocates believe Ban the Box also gives applicants a means to fight back when they have not been adequately considered for a position. According to Tiffany Johnson, a community organizer at A New Way of Life, advocates are also working on legislation that would prohibit questions being asked about criminal history until a conditional job offer has been made. Rather than simply pushing the question of criminal history back, such a law can ensure that applicants are adequately assessed.
But meanwhile, Ban the Box enables applicants to sue, if they suspect discrimination. Potential employers have to release reasoning for not hiring an applicant, accordingly to Johnson
In fact, just this year Intellicorp, a company that provides background checks on prospective workers, agreed to pay a settlement of $18.6 million in a class action lawsuit that accused the companies of violating the federal Fair Credit Reporting Act (FCRA). The settlement covers people who were not mailed a notification that their criminal history was shared, and the fact that inaccurate reports on those histories were shared, says Top Class Actions, a leading source of class action lawsuit news.
Often perspective employers ask for permission to check an individual’s background, and federal law allows for notification of this action.
The Ban the Box campaign began in 2004 by All of Us or None, a grassroots civil rights organization of formerly incarcerated people and their families, and has since spread internationally to countries such as the United Kingdom. The campaign inspired creation of AB 218, authored by Assemblymember Roger Dickinson.
The legislation has spread across different institutions, including public housing and to city contractors. And although public institutions were targeted by Ban the Box, private businesses have also been encouraged to follow the policy as well.
In response, retailer Target has removed the question from its job applications, even though it funds privately owned prisons. No other private businesses as of yet have willingly banned the box.
On Aug. 11, New Jersey Gov. Chris Christie signed the Opportunity to Compete Act that applies to both public and private institutions and will go into effect next year. The law states that employers cannot ask applicants about criminal history on an application nor during the first interview, however, they can ask after that point. This legislation goes into affect Mar. 1, 2015.
Additionally, as of Aug. 13, San Francisco barred most private employers from asking about a person’s criminal history on job applications.
In all, 10 states have enacted Ban the Box laws, but according to David B. Weisenfeld, Legal Editor at XpertHR, the following four states are the only ones whose laws apply to both public and private employers—Hawaii, Massachusetts, Minnesota, and Rhode Island.
The Federal Equal Employment Opportunity Commission (EEOC) has taken the position that no employer should ask about criminal history on job applications. The EEOC also made clear in an April 2012 Enforcement Guidance that before any employer precludes an applicant from employment because of a criminal record, the company should conduct an individualized assessment to give the applicant a chance to explain the circumstances and why he or she should not be excluded from employment.
The California legislation also benefits people living with a mental illness because about 40 percent of this population have (at some point in their lives) spent some time either in jail, prison, or community correction facilities, according to the Treatment Advocacy Center.
This legislation gets even more complex when considering the benefits for drug users, who are considered to have a mental illness, according to the organization Add Us In.
Individuals with a conviction for drug use are prohibited from receiving any public assistance, including welfare, subsidized federal housing, and social security benefits. These restrictions make employment even more necessary as income options decrease. Advocates feel that qualified applicants (including those with a drug history) have a better chance of obtaining employment with the more restricted ability to inquire about past convictions in place.
