“Ban the Box” Movement Spreads Nationwide

by Joe Watson

Prisoner advocacy groups are hailing recent successes in “Ban the Box” campaigns to remove questions related to criminal records from employment applications, and say they hope to expand the movement even further as momentum grows to help ex-offenders find jobs.

San Francisco became the first city in the nation to adopt a Ban the Box policy that includes private employers and affordable housing, when Mayor Ed Lee signed the Fair Chance Ordinance on March 4, 2014. The law bars private companies with more than 20 employees, contractors that hold city contracts worth more than $5,000 and any residential building that has received city funding from asking about a potential applicant’s criminal history prior to conducting a job interview or reviewing a housing application.

“Ban the Box” is the catchphrase coined by All of Us or None, a San Francisco-based advocacy organization composed of formerly-incarcerated people and their families, founded in 2003. It refers to the question on job applications, usually accompanied by a check-box, that asks whether an applicant has a criminal history.

Employers can still ask about convictions later in the hiring process and deny job offers based on criminal records, but removing the question from job applications allows ex-prisoners to get their foot in the employment door. During subsequent interviews they can explain their criminal history, how they have changed and why they should be hired.

Under San Francisco’s new law, employers are also required to consider whether a job applicant’s conviction is relevant to the position they are seeking, how long ago the conviction occurred and any evidence the applicant can provide of rehabilitation.

“San Francisco now has the distinguished honor of being the first legislative body in the country to protect its citizens from discrimination based on their conviction history in both private employment and affordable housing,” wrote attorney Noah Frigault, with the San Francisco Human Rights Commission.

In passing the ordinance, the city’s Board of Supervisors demonstrated its determination to deal with what it saw as a worsening issue. “In San Francisco, as across the country, individuals are often plagued by old or minor arrest or conviction records.... The problems presented by employers and housing providers who use a person’s criminal history to deny that person employment or housing opportunities are growing rather than diminishing,” the Board stated.

The Fair Chance Ordinance came on the heels of a law signed by California Governor Jerry Brown that prohibits taxpayer-funded public employers in the state from rejecting prospective job-seekers who have criminal records without first considering the applicants’ qualifications for the position.

Effective July 1, 2014, California Assembly Bill 218 requires more than 6,000 local and regional public agencies – all local governments in the state – to remove the check-box question on job applications that asks “Have you ever been convicted of a felony?” The National Employment Law Project (NELP), an advocacy group for low-wage workers, estimates that about 7 million people in California have an arrest or conviction record.

“The Legislature finds and declares,” states the bill, written by Assemblyman Roger Dickinson, “that reducing barriers to employment for people who have previously offended, and decreasing unemployment in communities with concentrated numbers of people who have previously offended, are matters of statewide concern.”

Exempting public safety jobs, such as law enforcement officers, AB 218 also requires government agencies to delay criminal background checks until after determining that an applicant meets the job qualification requirements.

“The problem of people with criminal records is at a critical point,” said Michelle Rodriguez, a staff attorney with NELP. “We have huge numbers of people who can’t get work and at the same time more and more people who have gone through the criminal justice system.”

Having AB 218 signed into law “was really huge for us, an extremely important victory,” stated Dorsey Nunn, director of the San Francisco-based Legal Services for Prisoners with Children, and co-founder of All of Us or None. “At issue is the question of ‘how do formerly incarcerated people get back into society?’ For someone who is a former prisoner, the law has said it is okay to be three-quarters of a human being once you’ve been convicted of a crime. We’re asking for equal access. For fairness.”

Rodriguez hopes the Ban the Box movement will grow through the rest of 2014 and beyond. “This issue has really resonated with so many groups on the ground across a wide spectrum – it’s absolutely magnetic,” she said.

“This year, we’ll focus on what else we can do to build on the momentum,” Rodriquez added. “How can we rope in private employers in California, and identify other opportunities? Unions, for instance, were a huge part of this effort, and there are a lot of other criminal justice workforce-related issues they can be helpful with.”

AB 218 codifies an executive order establishing the new hiring practices that was first issued by former Governor Arnold Schwarzenegger in 2010. According to NELP, 13 states and almost 70 cities and counties have enacted similar legislation as of September 2014, including Hawaii, which adopted the first Ban the Box law 16 years ago. [See: PLN, Sept. 2011, p.32].

In May 2013, Minnesota Governor Mark Dayton signed into law a statute prohibiting private as well as public employers from asking about job-seekers’ criminal records until the first interview. The state of Maryland adopted similar legislation in May 2013, and the governor of Illinois, Pat Quinn, issued an executive order removing the question concerning background checks from applications for state employment.

Other states with Ban the Box statutes include Colorado, Connecticut, Delaware, Massachusetts, Nebraska, New Mexico and Rhode Island. Some states extend Ban the Box to private employers, while in others the law only applies to government agencies.

Most recently, New Jersey enacted the Opportunity to Compete Act on August 11, 2014, which will become effective in March 2015. The law applies to businesses with 15 or more employees, and places restrictions on when employers can ask about job applicants’ criminal records, such as on job applications and during an initial interview. Employers that violate the law are subject to civil penalties.

Various versions of Ban the Box legislation were unsuccessfully introduced in 2013 and 2014 in ten other states, including Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio, South Carolina, Virginia and Washington.

Cities that have enacted Ban the Box policies include Philadelphia, Baltimore, Seattle, Memphis, Cleveland, New York City, Minneapolis, Detroit, Boston, Chicago, New Orleans, Tampa, Newark, Portland and most recently Washington, D.C. in September 2014.

Advocates believe the Ban the Box movement can also prompt private companies to change their hiring practices with respect to ex-offenders. As examples they point to the nation’s largest retailer, Wal-Mart, which removed questions about criminal history from initial job applications in 2010, and Minneapolis-based retailer Target, which adopted a Ban the Box policy effective January 2014.

“Target is finally doing the right thing by reforming its hiring policies so that qualified job applicants aren’t automatically screened out simply because they have an arrest or conviction from the past,” said NELP executive director Christine Owens. “Other large retailers around the nation need to follow suit, because their hiring policies send a strong message about whether they are committed to the communities that support their business.”

According to the Star Tribune, Greta Bergstrom, communications director for TakeAction Minnesota, noted that Target had changed its hiring policy following “a 200-person public action in the lobby of Target’s headquarters, a hundred individuals with past records filing job applications at Target and being rejected, a visit to Target’s shareholder meeting and numerous meetings, e-mails and phone calls with Target executives.”

“That’s why they decided to make this change,” she said.

Groups that advocate for former prisoners believe that eliminating questions about criminal records – or pushing background checks until later in the hiring process – are essential to helping people released from prisons and jails succeed in reintegrating into society, thereby reducing recidivism rates. Little research exists as to the results of implementing Ban the Box policies, though there are anecdotal examples of the positive effects.

“There are many employers who knowingly will not hire someone with a criminal record,” noted Walter Boyd, executive director of St. Leonard’s Ministries in Chicago, a re-entry program that provides released prisoners with free counseling, food, housing and classes.

Victor Gaskins, St. Leonard’s program director, agreed. “You fill out that application, you get that box, and if you check it: ‘Yes, I’ve been arrested, or incarcerated,’ the person doing the hiring for the job, as soon as he sees that check, he throws [your application] in the garbage.”

Advocates acknowledge that extending Ban the Box to other states and cities will take time, and caution against expecting too much too soon. “Our work isn’t a sprint, it’s a long haul fight,” Dorsey Nunn admitted. “Limiting access to jobs and housing not only victimizes formerly incarcerated people, but also generations and generations of children and grandchildren. We don’t have the luxury of stopping.”

Currently, there are efforts to get the federal government to Ban the Box on initial job applications for federal employment; the U.S. government has around 2.7 million employees, excluding the military – about 2% of the nation’s workforce. President Obama has the authority to change federal hiring policies through an executive order.

PLN has previously reported on guidance issued to employers in 2012 by the Equal Employment Opportunity Commission in regard to job applicants with criminal records and criminal background checks. [See: PLN, Feb. 2014, p.40; June 2012, p.20].

In formal comments submitted to the EEOC, Prison Legal News wrote it is important to “remove barriers to reentry for ex-offenders, including barriers to employment.... [to ensure] that former prisoners do not face discrimination in the job market due solely to the fact of their criminal record alone when that record has no relationship to or bearing on the job position they are seeking.”

Not everyone is in favor of Ban the Box policies, though. “A blanket ban-the-box policy doesn’t make good business sense for small business,” stated Elizabeth Milito with the National Federation of Independent Business, while Chambers of Commerce in some states have expressed concerns about liability risks for businesses that hire former prisoners.

Sources: Sacramento Bee, www.bloomberg.com, www.cctv-america.com, www.cleveland.com, www.prisonerswithchildren.org, Daily Journal San Francisco, www.nelp.org, The New York Times, Star Tribune, www.pewstates.org, Wall Street Journal

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