More than one in four adults has a criminal record, according to the National Employment Law Project (NELP). For a number of public-sector positions across the country, job applications with the criminal history box checked are automatically screened out before ever being thoroughly reviewed by someone. But during the past decade, a movement has been growing to encourage state and local governments to defer questions about criminal history until later in the hiring process.
Criminal history takes into account anything that's led to a conviction -- from a simple misdemeanor to a felony charge resulting in jail time. In the job market, this can mean that the majority of those 65 million American adults with a criminal record (many of whom have never served time in prison or jail, according to Cornell William Brooks of the New Jersey Institute for Social Justice) are being excluded from potential employment. Overlooking otherwise qualified candidates not only hurts employers' drive to hire the best and brightest but it also hurts recidivism rates because gainful employment is considered one of the best ways to keep people from returning to prison or jail.
As of mid-2013, more than 50 municipal governments and 10 state governments have passed varying degrees of so-called "ban-the-box" legislation, according to NELP. Some defer questions about criminal history until a candidate's qualifications have been reviewed or until a conditional offer of employment has been made and a background check ordered. Law enforcement and jobs in which employees work directly with children and the elderly, though, are often excluded. Most federal agencies have banned the box for several years now, and the Equal Employment Opportunity Commission considers such measures a best practice in hiring.
If ban the box is beneficial from a workforce point of view, why aren't more government entities enacting such policies?
Brooks says it's partially because of the myths surrounding hiring ex-offenders. Many employers believe that if they hire someone with a criminal history and that person engages in any unlawful activity on the job, the employer might find itself facing a lawsuit. In some instances, that might be the case. But according to Pamela Paulk, the senior vice president of human resources at Johns Hopkins Health System, some of her best employees are those with criminal records because of the difficulty they experience finding and keeping employment. Their absenteeism is lower, and they generally stay in their jobs longer.
The approach being used by Johns Hopkins is one touted by the organizations that support ban-the-box legislation. Advocates say such reforms allow applicants to explain their conviction and any rehabilitation that's occurred, giving potential employees the opportunity to be judged on merit instead of old convictions that may be unrelated to the job.
"People with criminal records who are allowed to interview and can demonstrate that they have some rehabilitation with a letter from AA or a probation officer or a clergy person are much more viable," Brooks says. "[Should] the 35-year-old who has gone back to school, improved his skills and economic viability [but] committed a minor, nonviolent drug possession crime eight years ago be excluded from every job in the public sector? Is that even economically rational?" He adds: Should the arrest record brought on by a frat-house prank keep a young college graduate out of the workforce?
Criminal history questions on job applications are also a racially charged issue. Devah Pager, a sociologist at Princeton University, conducted a study in 2003 that compared prospective job applicants who had identical qualifications but some had criminal records. A white male without a criminal record had a 34 percent chance of receiving a callback, while a white male with a criminal record had a 17 percent chance. For African American males, these numbers dropped to 14 percent and 5 percent, respectively. Pager concluded, based on these figures, that "the effect of a criminal record is thus 40 percent larger for blacks than for whites."
Last month, California became the latest state to enact a ban-the-box law, which it extended to both state and municipal employers. Other states that have enacted such legislation include Connecticut, Hawaii, Maryland, Minnesota and Rhode Island. It also appears likely that New Jersey's legislature will pass similar legislation before the current session closes. Cities adhering to these measures span the country and include Austin, Texas; Chicago; Cleveland; Newark, N.J.; San Francisco; Seattle and Washington, D.C.
And as the ban-the-box trend spreads, it's also expanding its reach. Some states and municipalities are now requiring contractors to adhere to ban-the-box hiring practices, while others, such as Minnesota, are expanding the law to include private employers as well as public.
But first, advocates have their eye on spreading the reforms to every state.
"If our country is safe and secure, if our government is running relatively efficiently, and we're operating with the best talent in the world in government service, it seems to me [that] if the federal government can do it and 10 states can do it, certainly other states can do it as well," says Brooks.