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Jun 02, 2014

Ban the Box? Why?

By: Paul Ebeltoft

It has been said that one in four Americans have some sort of criminal record. More conservative numbers peg the statistic at 70 million job-worthy adults. Does a criminal record affect one’s ability to find work? You bet.

A 2009 study conducted by Alfred Blumstein and Kiminori Nakamura for the H. John Heinz III College of the Carnegie Mellon University and published in the annals of the American Society of Criminology found evidence that the concept of redemption, ingrained in most religions, is being undermined by the ubiquity of criminal backgrounds checks. According to a Society for Human Resource Management, in 2010 93% of all employers surveyed conducted criminal background checks in the hiring process.

HR Professionals know that Title VII of the Civil Rights Act of 1964 prohibits employment practices that use the mere existence of a criminal record as the basis for rejection of an applicant. HR Professionals also know that the Fair Credit Reporting Act places burdens on both the employers who request criminal background checks and on the firms that provide them to be up front and accurate about what each does. The problem appears to be that HR Professionals also know ways to take someone out of the running for a job without identifying the real reason for the rejection – the criminal history disclosed by the job-seeker on the application form. Rather than redemption, those with a bad background are experiencing rejection.

Ban the Box? What is it?

A criminal record has become such a stumbling block to employment that many cities, counties and states are passing ordinances to remove questions about the job-seeker’s criminal background from application forms. The movement, called “ban the box” started among the states in Hawaii in 1998 and has since spread to eleven additional states and the District of Columbia. Somewhat kindred states, Minnesota and Nebraska, are among them. According to an article published a few weeks ago by the Pew Charitable Trust, four states have extended the ban to private employers.

Ban the box legislation does not, according to the Pew Charitable Trust, require an employer to hire anyone, regardless of criminal history. The legislation is intended to supplement the requirements of Title VII by pushing back, usually to post-offer, the time for a criminal check. By then, it is felt, applicants who have a story to tell about their criminal background will be able to do so without risk of an automatic “do not interview” sticker being attached to their file. The legislation is also intended to leapfrog regulations announced by the U.S. Equal Employment Opportunity Commission in 2012, updating guidelines for hiring people with criminal records but which stopped short of banning the box.

Ban the Box? Do you wish to do it?

Is the legislation sensible? The Blumstein and Nakamura study suggests that it is, particularly if an offense is old, finding that people with a criminal record are at no greater criminal risk after they’ve been clean seven to 10 years than those with no record. Anecdotal evidence also shows that big employers are joining in the ban the box movement without legislative nudging. Walmart, Fed Ex and Target, to name just three, have voluntarily removed questions about prior arrests on its job applications.

In today’s tough hiring climate in North Dakota a significant part of your job pool is undoubtedly checking the “do you have a criminal record” box on your application. Perhaps it is time for your company to consider “banning the box”, allowing the issue of past criminality, the nature and gravity of the offense and how much time has passed since it occurred to be brought up in natural and potentially more job-friendly ways.

Where are we anyway?

Long-time readers of the column know that Ebeltoft . Sickler . Lawyers is at home and very comfortable in its beautiful (if we say so ourselves) new building at 2272 Eighth Street West, Dickinson, ND 58601. We are all excited about our prairie style building with wide eaves, strong horizontal lines and open air patio spaces. You will like its sleek, modern interior, too. Please visit us. I would love to show you around.

The address is a little deceiving and it is not yet on Google Maps. You can find us at the corner of Fairway Street and 23rd Avenue West, Dickinson, across the street from the West River Community Center and kitty-corner to the new St. Joseph’s hospital. The beautiful landscaping will not be done until the weather makes a decided turn for the better.

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I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the June, 2014 Southwest Area Human Resource Association newsletter.