The Business Case for Asking Applicants About Criminal History

Some states and cities want to to use "ban the box" legislation to stop employers from screening job applicants with criminal records. Here's why some businesses oppose such measures and how some lawmakers eased their concerns.
by | April 16, 2014 AT 10:00 AM
The CEO and manager of a Fresno, Calif.-based business, right, discuss why their company hires ex-offenders.
The CEO and manager of a Fresno, Calif.-based business, right, discuss why their company hires ex-offenders. John Walker/Fresno Bee/MCT

As cities and states consider whether to prevent employers from screening job applicants with a criminal history, many local businesses are trying to limit the proposed bills. While public officials hope that a small change in hiring policies will keep ex-offenders out of prison, businesses complain of new costs and legal risks. Yet in some places, the public and private sectors have reached a middle ground that other localities might mimic.

“This will just add a significant layer of business regulation that threatens economic growth and private-sector job creation in the city,” wrote Donald Fry, president and CEO of the Greater Baltimore Committee, a regional business group, in a March newspaper column. Fry argued that the “unintended consequences of the well-meaning bill … would be to inhibit job creation in the city, not enhance it.” Fry’s comments reflect the positions of most local chambers when cities or states consider banning the box.

The proposal in Baltimore is part of a wave of local “ban-the-box” legislation appearing before state legislatures and city councils in 2014. Because the bills would prevent employers from asking applicants to check a box about criminal history, proponents call the policy banning the box. As the nation’s incarceration rate grew in the last decade, public officials have looked for ways to help ex-offenders find jobs and re-integrate into their communities. Research by Princeton sociologist Devah Pager suggests that employers are less likely to call back job candidates who indicate a criminal history, especially if they are black. That's a concern in many large metro areas, including Baltimore, with large black populations and a growing number of ex-prisoners who are looking for work. At least 10 states and almost 60 municipalities have some kind of ban-the-box law, according to the National Employment Law Project, a group in support of the policy.

The Baltimore city council is scheduled to take a final vote April 28 on a bill that would prevent employers from asking about criminal history on initial job applications. In some ways, the Baltimore proposal is more stringent than elsewhere. For example, businesses would have to wait until they extend a conditional job offer to ask about criminal history. The policy applies to private employers -- not just city agencies or their private contractors -- and it includes criminal penalties if a business violates the law.

At least five cities currently prohibit private employers from asking about criminal history early in the application process: Newark, N.J., San Francisco, Buffalo, Philadelphia, and Seattle. Another few cities have a policy that applies to companies that contract with the city government, such as Boston, Detroit and Pittsburgh.

A ban-the-box law is scheduled to go into effect in Indianapolis in May that prohibits city and county agencies and their contractors from asking about prior convictions on job applications or in first-round interviews. An early version of the proposal raised concerns for the Indianapolis chamber because it created the potential for wasted staff time in considering applicants who would ultimately be disqualified by their status as ex-offenders, said Angela Jones, the chamber’s director of public policy. Employers interview candidates anywhere from two to seven times, Jones said. Members didn't want to go through all those steps just to learn that the candidates couldn’t be hired.

Eventually, modifications to the proposal assuaged business concerns. First, the council added an exemption for positions where criminal convictions are a bar to employment under state or federal law. In practice, that meant that someone with a prior record of money laundering couldn't be hired as a bank teller and, more importantly, businesses could ask about criminal history upfront for that position. Second, the council changed the timing of the ban, so employers could ask about criminal history before making a job offer, but only after the initial application and first interview. In the end, the chamber still didn’t support the bill, but it didn’t actively oppose it either. Now Jones is working to educate local businesses about the law with a colorful infographic and one-page summary of its provisions on the chamber website.

Businesses also worry about overlooking top candidates in favor of applicants who can’t take the job, said Jim Lazarus, senior vice president of public policy for the San Francisco Chamber of Commerce. He outlined a hypothetical scenario that had his members worried: An applicant pool is winnowed down to three final candidates. The process of offering the job to the best of the three candidates takes several weeks. Then the employer finds out that the top choice is disqualified because of a criminal record. “The problem is that you may not have the other candidates anymore,” Lazarus said. “You may have lost them.”

Despite those concerns, the San Francisco chamber ended up supporting the ban-the-box law. That’s because the bill’s sponsors approached the chamber ahead of time and modified their proposal. As in Indianapolis, the amended requirement called for waiting until after the first interview to ask about criminal history, which still allowed applicants to make a good first impression. Baltimore Councilman Nick Mosby, the lead sponsor of a ban-the-box bill, said that a San Francisco-type compromise wouldn’t be sufficient in his city. “You still have implicit bias in the interview process,” he said. “I want to remove any implicit biases out of the process.”