Ban the Box and Stop Over-Use of Criminal Background Checks

Move conviction questions from the start to the end of the job application process

1 out of 4 U.S. adults has an arrest or criminal history that shows up in criminal background checks. Of those who are incarcerated, 95% will be released back into the community. ~54% of those released will return to jail.

The biggest reason people end up back in jail is because they cannot get jobs.  The biggest reason they cannot get jobs is because most initial job applications now have a yes/no check-box (or question) about convictions.  A “yes” answer usually means instant disqualification at the start.  The applicant is denied–even if they are a highly qualified and motivated worker, even if their crime was many years ago or has nothing to do with the job they seek, even if they have turned their life around.  With no job, people can’t provide for themselves and their families. They end up on public support, desperately poor, and often back in jail.  Their children suffer from this instability and poverty; many end up in foster care or in jail as well. All this is a waste of taxpayers’ money and human lives.

Ban the Box initiatives simply move the criminal history question from the start to the end of the job application process.  When criminal background checks are done later, qualified applicants can respond and explain during interviews (or later).  After that conversation, the employer can decide whether or not to deny the job based on the criminal record.[3]

Ban the Box won’t:

  • Override laws that prevent people with relevant convictions from certain jobs such as working with children or vulnerable people, or with money, etc.
  • Take final hiring decisions away from employers, or force them to hire any individual
  • Prevent employers from asking for a criminal background check

Ban the Box will:

  • Make our communities safer by reducing recidivism [4]
  • Let more people contribute to the economy and pay taxes, which benefits us all.
  • Provide more stability and income for the children of formerly incarcerated people
  • Give employers access to qualified applicants and workers
  • Restore hope, dignity, and justice for all

Ban the Box policies have been implemented in Minnesota, Michigan, Illinois, and 8 other states, and more than 56 large U.S. cities and counties.[5] It makes sense, it works well, it’s easy to do, and it’s the fair thing to do.  Please support Ban the Box initiatives in your area.

Stop Over-Use of Criminal Background Checks

“An employer cannot, legally, make a rule that no persons with conviction records will be employed. Each job and record must be considered individually.”

WI DWD/Equal Rights Division, pub. #7609

 Over-use of criminal background checks creates wasteful barriers to employment for many U.S. workers, and especially for people of color.  Federal Equal Employment Opportunity Commission (EEOC) Guidance advises that overly broad criminal history screening practices “may disproportionately impact some individuals protected under Title VII [Civil Rights Act of 1964], and may violate the law if not job related and consistent with business necessity.” [6]

Wisconsin statutes state that employment can be denied only for convictions that “substantially relate[s]” to the circumstances of the particular job.[7]

Both agencies advise employers to instead use a 2-step process starting with a targeted screen that considers the nature of the crime, time elapsed since, and the nature of the specific job.  The 2nd step is to allow qualified applicants with relevant convictions to explain and correct errors in the record (which are very common).[8]  Below are key points from these agencies:

  • Remove questions about criminal records from initial employment applications.

These questions are usually overly broad and wrongly block applicants from being evaluated based on their qualifications.  Instead, let all qualified applicants have equal opportunity to be interviewed, and obtain criminal background checks at that later stage.

  • Consider convictions only when they directly relate to the position being sought.

Federal and state laws require this.  Also, employer liability for negligent hiring has been defined very narrowly: Employers are not liable for a hire that creates no more risk than the person simply being present in the community or in any other job.

  • Develop policies that are tailored to assess for unacceptable risk for specific positions, consistent with the evidence, and for a limited time period.

Only adult convictions should be considered—not arrests only; not dismissals, stays of adjudication, or juvenile adjudications; and not expunged or pardoned convictions.[9]

  • Give the applicant a chance to explain, and consider evidence of rehabilitation.

If a conviction does directly relate to the position sought, the applicant must have the opportunity to show evidence of sufficient rehabilitation and fitness to perform the duties of the position, and the opportunity to identify inaccuracies in the criminal record.

  • Develop clear and narrowly tailored policies to comply with state and federal laws.

Train staff and managers in proper procedures. Inquire only about job-related convictions.  Keep all information about criminal records confidential. See references below and on other side for further guidance and model practices.

 


[1]  “65 Million Need Not Apply,”  Michelle N. Rodgrigues, M. Emsellem. National Employment Law Project (NELP), March 2011.  www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf  (p. 27, n 2.)

[2] “State of Recidivism: The Revolving Door of America’s Prisons. PEW Center on the States, April 2011.

[3] See other side for more detailed guidance for employers.

[4] An Illinois study showed that employment reduced the recidivism rate from 54% to 6%. (Art Lurigio, Safer Foundation Recidivism Study, 135thCongress of American Correctional Assoc., Aug. 8, 2005).

[5] www.nelp.org  (National Employment Law Project)

[6]  “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”  EEOC Policy 915.002, April 5, 2012. www.eeoc.gov/laws/guidance/arrest_conviction.cfm

[7]  Wisconsin Statutes §§ 111.321, 111.322 prohibit employment discrimination in both public and private sectors on the basis of either an arrest or conviction record (1981).

[8]  “In Search of a Job: Criminal Records as Barriers to Employment.” Amy L. Solomon, National Institute of Justice Journal No. 270. www.nij.gov/journals/270/pages/criminal-records.aspx

[9]  EEOC Policy 915.002, April 2012, and “What You Should Know: EEOC’s Response to Letter from State Attorneys General on Use of Criminal Background Checks in Employment.” Aug. 29, 2013. EEOC website

3 replies
  1. Donna Simms
    Donna Simms says:

    Many of these people refused a job are young men and women who made a mistake and paid for it by serving their time in prison. In other words they have paid back society and when you pay for a mistake it should go away. I never realized the minor infractions that create that dreaded title “felony”. If you think it means you have hurt someone, robbed someone or been active in the drug trade – then you are wrong. Check out the minor offence that creates the title. Take the box off applications and allow the prospective employee to tell you about his past. There is no way to check out an illegal immigrant’s past but they get hired anyway. Sometimes I think society wants them to commit another crime which happens when they get hungry and can find a job – back to prison and we have to support them. .

    Reply
  2. Sandra
    Sandra says:

    You have definitely hit a good shot that we have to develop policies that are tailored to assess for unacceptable risk for specific positions, one of the best points you highlighted here!

    Reply
  3. Jennifer Benn
    Jennifer Benn says:

    Ban-the-box is definitely a good policy and it would empower the job seekers who have criminal records but are highly educated and worthy for the position. It will not be a problem if the background check is done at the final round of employment. It will serve the same purpose and not harass these candidates. Background check should be done on those employees who are already selected just to check whatever they have told is correct or not.

    Reply

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