Obama’s ‘Ban-the-Box’ Mandate Has Limited Reach

By Allen Smith Nov 4, 2015
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President Barack Obama’s move to eliminate questions about individuals' criminal history on federal job application forms is a significant first step, but advocates were disappointed the president did not issue an executive order eliminating such questions by federal contractors.

Obama directed the Office of Personnel Management on Nov. 2, 2015, to remove a check box asking about an applicant's criminal history from federal job application forms—a practice that is commonly known as banning the box.

“It’s important that the federal government step up and be a model employer,” said Maurice Emsellem, director of the Access and Opportunity Program for the National Employment Law Project (NELP). NELP advocates on issues affecting low-wage and unemployed workers. But Emsellem said there is more that needs to be done, including expanding ban-the-box requirements to cover federal contractors. Legislation that unanimously passed a Senate subcommittee proposes to do just that.

The congressional proposal to apply ban the box to the private sector has raised concerns among some, however. Rich Brown, executive vice president at Compass Tech International in Dublin, Ohio, said that banning the box raises a “touchy balance of allowing private companies to maintain standards, and have a path to rehabilitation and self-sustaining lives for the ex-con.” Compass Tech International provides staffing and recruitment services and outplacement counseling to HR professionals.

Fair Process

Banning the box—sometimes called fair chance hiring—is “all about a fair process,” Emsellem said. “It does not mean you can’t disqualify someone because of an offense.”

But any disqualification that results from an individual's criminal background history must come after a conditional job offer, he said. At that stage, the employer and job applicant might have a discussion about the circumstances surrounding the conviction and the applicant’s experience since then, before the employer makes its decision.

“The federal government is a big employer,” President Obama said in announcing his call to ban the box for federal jobs. “Like a lot of big employers, on many job applications there’s a box that asks if you have a criminal record. If you answer yes, then a lot of times you’re not getting a call back. We’re going to do our part in changing this. The federal government, I believe, should not use criminal history to screen out applicants before we even look at their qualifications.

“Right now, there are 2.2 million Americans behind bars—2.2 million,” Obama noted. “We incarcerate people at a rate that is unequaled around the world. We account for 5 percent of the world’s population, 25 percent of its inmates. They are disproportionately black and Latino.”

He added, “Around 70 million Americans have some sort of criminal record—70 million. That’s almost one in five of us. Almost one in three Americans of working age.”

Obama urged Congress to pass ban-the-box legislation that would apply to federal contractors.

Existing Bans

Obama noted that some companies, including Wal-Mart, Target, Koch Industries and Home Depot have banned the box, and that 19 states have enacted laws to require private employers doing business in those states to do so, as well.

But Obama’s action may have a limited impact within the federal government, as the White House noted in a fact sheet that most federal agencies already ban the box.

Christine Owens, NELP’s executive director, pointed out in a news release that more than 100 cities and counties have already banned the box. Of these, 26 cities and counties extend their ban-the-box provision to government contractors or private employers. These cities include Baltimore; Buffalo, N.Y.; Chicago; New York City; Newark, N.J.; Philadelphia; San Francisco; Seattle; and Washington, D.C.

“One of the most important next steps should be to extend the reach of any federal ban-the-box policy so that it covers federal contractors, not just government agencies,” Owens said. “That would greatly extend the impact of the federal policy, given that nearly one in four U.S. workers is employed either by a federal contractor, a subcontractor or the federal government.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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