So I guess introducing a federal “Ban the Box” bill in the U.S. House of Representatives is a one way ticket home. Just one week after Congressman Hansen Clarke (D-MI) drafted a bill to stop employers from asking job candidates if they have ever been convicted of a crime on their employment application, he lost his district’s primary election. Of course, one probably had nothing to do with the other, but the introduction of such a law is noteworthy for employers.
The proposed HR 6220, or “Ban the Box Act,” would only allow for an inquiry or criminal background check after a conditional offer for employment is extended to an applicant; or where there is an “unreasonable risk” to individual or public safety.
The freshman Congressman said in a statement: “By making it incredibly difficult for people with conviction records to find jobs, current employment practices lead to hopelessness and result in more poverty and crime,” and “This legislation is aimed at empowering people to take responsibility for their communities and their lives.” Clarke is running for his second term in a hotly contested race in a district that was redrawn this year.
The bill is patterned after similar laws in Minnesota, Massachusetts and the city of Philadelphia, to name a few. Essentially, it removes the little checkbox on the application that reads “Have you been convicted of a crime?” While the intent is to get ex-cons back to work, one problem with this bill is that it ties the hands of employers until too late in the game. Employers cannot reasonably determine a candidate’s suitability for a job until countless hours and resources have been spent reviewing applications, conducting interviews, and negotiating employment terms. Have you ever been under pressure to fill a position, only to find out in the eleventh hour that there is something about the candidate that makes them ineligible for hire? Starting over is costly—in terms of both time and money.
Another concern is that this bill does not take into account the employer’s liability for negligent hiring or retention. By limiting the employer’s ability to conduct criminal background checks until the last step, a legitimate concern is the potential chilling effect on conducting criminal background checks altogether. This bill would codify a public policy that discourages employers from looking into a criminal’s past. What if you have several finalists, and you want to screen all of them before making an offer? There is no provision for this scenario, nor is there a safe harbor or exemption for employers who are required by state law to conduct background checks—only a very amorphous exclusion for an “unreasonable risk” to public safety.
The pay-off is to discourage and prevent discrimination against ex-offenders, which is a worthy goal. But why not focus on policies and programs that give employers incentives to hire ex-cons? There are tax credits, re-entry programs, rehabilitation policies that are all geared at getting people back to work. I realize that this all might sound self-serving coming from a person who works for a company that is paid to do criminal background checks. So don’t let me have the final word—what do you think?
Editor’s Note: Congressman Clarke lost his democratic primary a week after this bill was introduced. And while someone else can pick up the effort, it looks like this is a dead issue for now.