J E S S I C A S . H E N R YA S S O C I A T E P R O F E S S O R O F J U S T I C E S T U D I E S

M O N T C L A I R S T A T E U N I V E R S I T Y

BAN THE BOX

THE BIG PICTURE

• 2.3 million people incarcerated in prisons and jails in the United States (roughly 1 in 100 American adults)

• 5.1 million people are supervised on parole and probation.

• Roughly 700,000 individuals are released from prison or jail each year.

• The Center for Economic Policy and Research estimates that, in 2008, there were between 12 and 14 million ex-offenders of working age. (Schmitt and Warner, 2010)

• Because unemployed persons with a criminal history have higher recidivism rates than their employed counterparts, policies that promote employment among ex-offenders also promote public safety.

BARRIERS TO REENTRY

• Incarceration reduces social capital in the forms of education, work experience, training, “soft skills,” and social networks that promote employment.

• Employment discrimination against ex-offenders.• Employment limitations including licensing

prohibitions and preclusions from certain positions. • Statutory bars to public housing, public assistance

and educational grants, which vary within jurisdictions and depending upon conviction.

UNEMPLOYMENT AMONG EX-OFFENDERS

• No official data about unemployment among ex-offenders.

• One study found that “employment rates of formerly incarcerated men are about 6% points lower than for similar men who have not been incarcerated.” (Geller, et. al. 2006)

• Another study found that about 60% of ex-offenders in New York state were unemployed one year of their release. (Independent Committee on Reentry and Employment, 2009)

• Higher unemployment among black and latino ex-offenders.

DISCRIMINATION AGAINST PEOPLE WITH CRIMINAL HISTORIES

1) Criminal record is a significant barrier to employment, an effect that is amplified by race (Pager, 2004)

2) Over 60% of 600 surveyed employers in Los Angeles said they would “probably not” or “definitely not” hire an applicant with a criminal record (Holzer, et. al. 2002)

3) Only 14 states prohibit employment discrimination against ex-offenders – but even that protection is somewhat limited. (Love, 2007)

4) Ex-offender status is not protected under Title VII of the Civil Rights Act.

5) Perception that any person with a criminal conviction is untrustworthy and dangerous.

WHAT IS BAN THE BOX

• To enable individuals with criminal records to obtain access to employment opportunities, some states and major cities, have prohibited inquiry into criminal history on written employment applications and, in some instances, in the initial interview.

• Some jurisdictions have extended this requirement to private employers.

• No jurisdiction has entirely prohibited inquiry into criminal history.

RATIONALE FOR BANNING THE BOX

1) Presence of criminal history question could deter individuals from applying for work in the first instance

2) Absence of criminal history in initial application could reduce up-front employment discrimination against ex-offenders by leveling the playing field, and enabling qualified individuals to obtain interviews for positions.

APPROACHES TO BTB

BTB policies vary considerably:-- which employers (public, private who contract with public, all)?-- which positions?-- what aspect of criminal history (arrests, convictions, time limitations)?-- when is background check permitted (after initial interview, upon conditional offer)?

BTB THROUGHOUT THE U.S.

• Statewide BTB legislation: Connecticut, Hawaii, Minnesota, Massachusetts, and New Mexico.• Hawaii and Massachusetts extend ban to private

employers.• Dozens of cities and counties, including most

recently: • Cleveland (2011)• Washington D.C. (2011)• New York City (2011) • Philadelphia (2011)

MASSACHUSETTS, SAN FRANCISCO, PHILADELPHIA

IN FOCUS

MASSACHUSETTS STATEWIDE BTB G.L., CH. 151B, SEC. 4, 9 ½ (2010)

• Employers can not ask about criminal history on an initial written employment application, unless otherwise required by statute.

• Applies to ANY employer who does business in Massachusetts and takes application in Massachusetts.

• National and international employers can use standard employment forms but must contain a disclaimer in bold that employers in Massachusetts may not inquire about criminal history on an initial application

MASSACHUSETTS STATEWIDE BTB G.L., CH. 151B, SEC. 4, 9 ½ (2010)

• Employers cannot in writing or orally ask about:• A prior arrest, detention, or disposition that did not result in a

conviction • A prior first conviction for information relating to the

misdemeanor crimes of drunkenness, simple assault, speeding, minor traffic violations or disturbance of the peace

• A misdemeanor conviction that occurred more than 5 years prior, any sealed record or juvenile offense.

Can conduct employment check later in process, but only with regard to felony convictions and misdemeanor convictions from the last five years.

• Employer is required to share criminal history information with applicant

SAN FRANCISCO, CA (RES. 764-05)

• Initial application form alerts applicants that they will be required to complete a separate Criminal History Form (CHF) at some time in the application process.

• Some municipal positions require applicants to file the CHF at the same time as their initial application.

• Employers can consider arrests, and all convictions (including certain convictions for which a pardon was issued).

PHILADELPHIA (CH. 9-3000)

• Applies to public employers and private employers with 10 or more employees.

• May not inquire into criminal history or require disclosure of criminal history during the application process and the initial interview process.

• Inquiry excludes arrests or non-pending criminal accusations that did not result in conviction.

LIMITATIONS OF BTB

1. Where BTB is limited to public employers, law will have limited impact

2. BTB laws have significant exclusions, and scope of permissible inquiry varies between jurisdictions

3. Enforcement issuesa) private background checks b) pretextual reasons for not hiring c) oversight and data collectiond) accuracy of criminal history

4. Other licensing and employment limitations5. Fear of negligent hiring lawsuits

DATA**

• Very limited Minneapolis – BTB implemented in 2007 – background checks are only conducted after conditional employment offer is madeBetween 2007 and July 3, 2008:

• 47 applicants considered for positions presented conviction concerns

• 27 were hired (57.4%)• 13 were rejected because of conviction (27.7%)

**Data provided by NELP

DATA COLLECTION CHALLENGES

• How to require employers – particularly private employers – to collect data

• How to ensure that employers do not tailor data to comply with regulations

• How to account for impact of economic downtown on overall hiring practices

CONCLUSIONS

Limited empirical basis for the proposition that BTB promotes ex-offender employment, but initial data is promising – more research is needed

Is a cost-effective policy that may level the playing field for ex-offenders – but enforcement will be difficult

Does not address other significant statutory limitations that create barriers to ex-offender employment