Ban the Box

“Ban the box” is not a backlash against Home Depot and Target and stores of their bulk. It is a campaign against the question on employment applications about being convicted of a crime. A previous similar campaign made sure no question asked about arrests – remember, in America we are innocent until proven guilty. Now there are those, including Massachusetts Senator Elizabeth Warren, who want to prohibit employers from requiring job applicants disclose their credit history. I get it. It wasn’t that long ago that a bad credit history meant you were a lazy slob who didn’t care about your responsibilities and would probably sleep on the job, if not rob the boss blind. After 2008 that changed. Besides the real part of the recession, where millions of people lost their jobs, we’ve learned that (many) banks ripped us off, forcing us into bankruptcies. Can we really rely on credit checks as a barometer of one’s character anymore? But I want to point out another issue at play here, as well: a discrimination issue that the EEOC (Equal Employment Opportunity Commission) has been cracking down on, called “disparate impact.” Remember, in human resources intention does not matter. Motivation does not matter. Impact matters. Disparate impact discrimination starts out neutral: we run a credit check on all job applicants. But ends up with an “unjustified adverse impact on members of a protected class”. Per the EEOC, “minorities and women are disproportionately disadvantaged”, and therefore, the use of credit reports disproportionately affects those groups’ employment opportunities. Similarly we know that some racial minorities are disproportionately [over-] represented in our jails and prisons, so it follows that when they are released and looking for work, a criminal background check will disproportionately [negatively] impact their chance of employment. Again, disparate impact. Hence the nationwide movement to “ban the box”, either removing the question about previous criminal convictions from the job application or delaying the background check until later in the hiring process, even eliminate the use of background checks at all. As of November, 2013, over 50 cities and counties have taken the step, citing it as critical to “removing an unfair barrier to employment” to those caught up in “America’s mass incarceration”. Those behind the movement cite the need to ensure “we’re maximizing job opportunities for everyone” and educating the community about the real consequences to our society of depriving millions of Americans with past convictions of economic stability. But what about we employers who feel we have the right to know if the person we hire to run the cash register has been convicted of theft or has huge credit card debt? The EEOC says we should not bother running a check on such a low level employee. On the CFO? Of course. Otherwise we run the risk of exposure to disparate impact claims. Wow. Right now California applications can ask if the applicant has been convicted of a crime, and then tell the applicant to not disclose an arrest or detention that did not result in a conviction, any conviction for which the record has been judicially expunged, sealed, or eradicated, any misdemeanor conviction for which probation has been completed and the case has been judicially dismissed, any arrest for which a pretrial diversion program has been successfully completed in accordance with Penal Code Sections 1000.5 and 1001.5, and any convictions for marijuana-related offenses that are more than two years old. The existence of a criminal record does not constitute an automatic bar to employment. I think as long as employers use this discretion wisely we’ll be OK. Don’t hire a guy with a DUI to deliver pizzas. Unless it is 10 years ago and he has been spotless ever since and tells you how it was a watershed in his life. Talk about it! Then make up your mind. My suggestions are three: review your background check procedure to be sure it is consistent; run it by your employment law attorney; and then do whatever you can to support the reentry training programs being implemented at your local county jail for the inmates incarcerated there as a result of the prison realignment (AB 109). Because California prisons are so overcrowded, our jails are now housing non-violent offenders for a longer period of time. AB 109 has provided funding for programs to help these people prepare to reenter society with a much higher chance of success. That is great news for all of us – employers, coworkers, neighbors, and former inmates alike. To find out more about these issues contact Restorative Partners at www.restorativepartners.org ; go to www.nelp.org for the Statewide Ban the Box report by the National Employment Law Project; and www.eeoc.gov for their guidance on background checks.