Lawmakers Introduce National ‘Ban-the-Box’ Bill

Roy Maurer By Roy Maurer March 15, 2021
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US capitol

​New legislation would encourage states to implement "ban-the-box" policies that prohibit employers from asking job applicants about their criminal history before an offer of employment is made.

Reps. Maxine Waters, D-Calif., and David Trone, D-Md., introduced the Workforce Justice Act on March 3. It would give states three years to remove from private-sector employment applications the question that asks job seekers to disclose criminal history; noncompliant states would stand to lose criminal justice funding.

The aim of the proposal is to provide job applicants with criminal records a better chance at competing in the labor market. Studies show that people with criminal histories face very high unemployment rates and risk for recidivism. Up to 75 percent of people who were incarcerated remain unemployed one year after release, according to the Center for American Progress, a Washington, D.C.-based think tank.

"For previously incarcerated men and women who are doing their part to reintegrate into society, the job application process is often stressful and debilitating, due to the rate at which they are denied consideration for employment because of the fact that they have served time," Waters said. "By prohibiting private employers from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment, like my state of California has already done, job applicants with a criminal history will be evaluated based on their qualifications alone and have a fair shot at rebuilding and reclaiming their lives."

Trone added, "Banning the box results in higher retention rates and more dependable employees, and it's just the right thing to do. Right now, and especially during this economic crisis, we should ensure that all Americans, regardless of their criminal history, have access to good, well-paying jobs."

Washington, D.C., 36 states and over 150 cities and counties have adopted ban-the-box policies, according to the National Employment Law Project. Fourteen states and 20 cities and counties have extended these policies to private employment. The federal government also enacted a ban-the-box policy for federal agencies and contractors in 2019. The new legislation is aimed at all employers within each state.

"The time has come to ban the box on all job applications," Trone said. He added that when his family's company, Total Wine & More, removed the criminal-history question from job applications, 500 ex-offenders were hired, leading to "a higher retention rate and more dependable employees."

Building a 'First-Chance Movement'

Employment-screening expert and attorney Les Rosen pointed out that the recent emphasis on second-chance hiring has resulted in various ban-the-box and fair-chance hiring laws across the country that regulate how criminal-history screening is handled in the hiring process.

In 2012, the U.S. Equal Employment Opportunity Commission issued guidance making it clear that a criminal record cannot be used to automatically exclude an applicant for employment. 

"Certainly ban-the-box and fair-chance hiring laws are critical, and there is no question that employment is the most effective means to combat recidivism, but that is just one part of the solution," said Rosen, the CEO of Employment Screening Resources, a background-screening firm in Novato, Calif. "Unfortunately, even though numerous laws regulate an employer's use of criminal records, there are very few states with laws that protect the employer that takes a chance, hires a former offender, and then finds their company in hot water if that person re-offends. The issue will not be solved by making employers bear the brunt of the effort to give people a second chance."

Rosen said that ban-the-box legislation would have much greater impact if it also urged jurisdictions to give employers some protection in the event they follow ban-the-box rules, hire a job candidate with a criminal record, and then get sued for negligent hiring. "It would also be much more impactful if it recognized the need for programs and policies that diverted people from the criminal justice system in the first place," he said.

The Workforce Justice Act is "a potentially useful piece of legislation, but until underlying issues are addressed and employers receive some protection, it is not nearly as useful as it sounds," Rosen said. "Focusing on post-conviction employment misses the opportunity to significantly attack the problem earlier in the process. By focusing time, attention and resources on a first-chance movement to create an early intervention, numerous people could stay out of the criminal system or custody in the first place."

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