By Michael Cormier
“There are three kinds of lies: lies, damned lies, and statistics” – Mark Twain
A new phrase is sweeping the country in the debate over hiring people with a criminal past: “Ban the box.”
Ban the box refers to the question on job applications asking if the candidate has ever been convicted of a crime. Most job seekers have been faced with that question at some point. But that’s all changing, due to a firestorm sweeping the country.
It began with some cities and counties, and now nearly a quarter of the states have enacted laws banning that little box and the question beside it. And it doesn’t look like the fire will be contained any time soon, as many other states consider their own laws.
For advocates of equal employment opportunity and privacy, the watchword “ban the box” has become a symbol of fairness in hiring. At the other end of the spectrum are those who feel the employer has a right to know—up front—who exactly they are considering bringing into the company fold.
Both arguments have merit. And both have been heard and taken into consideration, which is why the ban the box movement was able to take root. The legislation being passed in venues all across the country is not an all or nothing proposition. It’s only a limiting law, designed for fairness.
Ban the box refers to banning the question on job applications only. It does not mean an employer can never know whether an applicant has committed crimes in the past. Under most of these new laws, once the applicant has passed the initial application stage, and has been interviewed or made a provisional offer of employment, the hiring manager may then inquire about any past convictions.
This seems to make sense from an equal employment opportunity viewpoint. For many applicants, so the argument goes, a check mark in that little box used to mean the difference between possible further consideration and certain rejection. This put the kibosh on a lot of applicants who were otherwise qualified, and whose criminal past might not have impacted their job performance. Thus an applicant with an old conviction for painting graffiti on a public wall met with the same fate as the applicant who recently completed a prison sentence for armed robbery.
That said, an HR manager faced with a large pool of qualified applicants might feel it’s not in the company’s best interest to bother looking into the circumstances behind criminal records—no matter how qualified these candidates might otherwise be. That’s a persuasive argument, especially for small companies lacking the resources to do the research.
But consider the following: In July, 2014 the National Employment Law Project (NELP) estimated that 70 million Americans – one out of every four adults – has some kind of criminal record. This translates into a quarter of all job applicants having a criminal past (the percentage could be much higher if one takes into account those adults who will never seek employment).
Another argument raised in support of the ban the box laws is the effort to help ex-offenders reenter the job market. Civil rights activists argue that preventing ex-offenders from even being considered for a job is a sure way to force them into repeating. On the other hand, if the ex-offender can get an interview based strictly on his qualifications, and the HR manager likes the candidate well enough, chances are his past behavior will be overlooked, or at least lose out in the balancing of things. That’s the theory, anyway.
Whatever side you take in the debate, it’s clear that criminal checks are not going away altogether. It’s also probable that new restrictions will be considered for all other types of background checks as personal information becomes more accessible in the IT age.
Knowing your state’s hiring laws thoroughly is helpful, but it’s only part of the picture. Procedure, record-keeping, EEOC recommendations, current court opinions —all of these things have to be considered. To be sure your company doesn’t run into trouble, consult a reputable, full-service background investigation firm like Hire Authority at www.hireauth.com or (508) 230-5901, to find out what they can do to protect you.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.