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Do 'Ban-the-Box' Laws Help Expand Employers' Candidate Pools?

Two experts debate the issue.

A smiling woman in a blue cardigan.
Michelle Natividad Rodriguez

When employers look past the stigma of a criminal record, they find highly-qualified and motivated workers.

The best argument for why companies should support “ban-the-box” laws comes from the leaders who have given job applicants with arrest or conviction records a fair chance at employment.

“In my experience, people with criminal records are often model employees,” says one restaurant executive who employs hundreds of workers in Ohio and Florida. “They are frequently the most dedicated and conscientious. A lot of doors are shut to them, so when someone gives them an opportunity, they make the most of it.” 

Another executive, the founder of a Denver-based telecommunications company, says, “Of all the groups we targeted, [people with criminal records] turned out to be the best employees, in part because they usually have a desire to create a better life for themselves … [and] are often highly motivated.”
These leaders have learned that opening job opportunities to people with criminal histories has actually given their businesses an advantage.

Today, ban-the-box policies are in effect in half the states—both red and blue—and in more than 150 cities and counties around the country. These measures remove the conviction check box from public-sector job applications and defer background checks. A number of jurisdictions have expanded their laws to cover the private sector as well.

Ban-the-box legislation is common sense. It doesn’t tell you who to hire. It simply helps ensure that you don’t screen out people with records en masse. Plus, studies show it works. Research in Durham, N.C., Atlanta and San Francisco—all of which have ban-the-box policies in place—shows increased hiring of people with criminal records.

Companies that want to demonstrate their commitment to diversity and social responsibility are voluntarily banning the box. Three hundred companies—including some of the nation’s most recognizable employers, such as Google, Facebook, Starbucks, PepsiCo and Xerox—have signed the Fair Chance Business Pledge, a nationwide call-to-action to create opportunities for people impacted by the criminal justice system.

Among the leaders of this initiative is the Johns Hopkins Hospital and Health System, which has a long track record of employing people with conviction records. Johns Hopkins executives say banning the box provides them with a pipeline of talented applicants who typically have lower turnover rates. 

Unfortunately, too many employers remain wary of hiring individuals with criminal backgrounds. The stigma associated with having a criminal history negatively impacts employers’ hiring decisions and lingers for decades. The callback rate drops by at least half when a person has a record—which has far-reaching implications for these individuals, and for society, when you consider the following: 

Seventy million people—nearly 1 in 3 U.S. adults—have an arrest or conviction record. That shocking number includes a disproportionate number of people of color, reflecting the legacy of a racially biased criminal justice system. 

As we look to solve these daunting problems, we must recognize that locking people out of the job market is a mistake. Employers can’t afford to miss out on the talents and perspectives of millions of good people who can contribute to a diverse workforce. 

In the end, not only will our local communities benefit from ban-the-box laws, but employers will begin to realize the potential of this vast, untapped pool of men and women who are ready to work.

Michelle Natividad Rodriguez is a senior staff attorney with the National Employment Law Project in New York City and leads fair-chance hiring efforts to expand job opportunities for people with arrest and conviction records. 

 It is simply too soon to tell.

So-called 'ban-the-box' laws, which prohibit employers from asking about criminal history on job applications and dictate when background checks can be completed, have become popular in recent years. Their intent is to give individuals with criminal records the opportunity to show that their positive qualities outweigh any negatives associated with having a criminal history by removing criminal-record questions from job applications or deferring them to later stages of hiring. 

Several studies have found that these laws do aid those with criminal records in securing better employment outcomes. However, such research may simply tell us that those who were already applying are now advancing further in the hiring process. The pertinent question is whether ban-the-box laws have resulted in more people with criminal histories entering the labor pool. That inquiry is difficult to answer. 

Proponents claim that ban-the-box laws will broaden employers’ hiring pools by encouraging job seekers with criminal records to apply for positions that they otherwise would have avoided. But that is not assured.  

For example, while employment discrimination laws prohibiting the blanket exclusion of those with a criminal record have long been in place, research shows that some ex-offenders questioned both whether employers follow such laws and, if not, whether failing to do so would even be enforced. The same may be true with ban-the-box legislation—which would mean that those with criminal records would remain dissuaded from job seeking because they might perceive that criminal-record questions would still be asked. 

Further, since many ban-the-box laws simply defer the criminal-record question to later on in the hiring process, some people with criminal histories may opt to avoid spending time and money to attend initial interviews in the anticipation that they will face rejection in the end. This phenomenon has been identified in previous studies. 

As of now, we simply do not know whether ban-the-box laws increase candidate pools. Research is needed which isolates the effects of ban-the-box laws from other factors that influence candidate pools.  

Until we can firmly establish what effect these policies have on candidate pools, a prudent approach would be to use other mechanisms in combination with ban-the-box laws. This is wise for two reasons. 

First, several studies have found that ban-the-box laws increase employment discrimination for those without criminal records. Why? Because in the absence of information about a person’s criminal record, employers are more likely to guess which job seekers have criminal backgrounds. And such assumptions disproportionately affect minority applicants. Other research indicates that companies in ban-the-box jurisdictions “game the system” by raising the bar on other requirements such as experience or skill level—attributes that people with criminal records are more likely to fall short on. 

Second, there are alternatives to ban-the-box laws, such as certificates of employability that are designed to demonstrate an individual’s rehabilitation, remove automatic licensing bars and immunize businesses from negligent hiring claims (a potentially attractive advantage for employers). 

Early tests have shown that such certificates dramatically improve the ability of an individual with a criminal record to earn an interview. Further, such documentation also provides those with criminal histories a stamp of good character, which can help reinforce their membership in the community and potentially encourage their participation in the workforce. 

Peter Leasure is a Ph.D. candidate in the department of criminology and criminal justice at the University of South Carolina in Columbia, S.C.

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