Second Chances

04.17.14

No, You Can’t Check if That Job Applicant Has a Criminal History

A job hopeful might have an arrest record, but employers can’t find out until after making a job offer. It’s just one of many bills nationwide rolling back criminal background checks.

Wantwaz Davis served 19 years in prison for second-degree murder after shooting someone who he says raped his mother and threatened to do so again.

When Davis got out in 2010, he couldn’t find steady employment. He began advocating for the rights of ex-felons before the City Council in his hometown of Flint, Michigan, and found his first real job since being locked up at 17 when he won election to the council last November.

Now Davis is helping lead an effort in Michigan to make it easier for those with a criminal history to find work by making it more difficult for employers to find out about their past.

So-called Ban the Box legislation has passed or is poised to pass in dozens of states and municipalities. Not hiring a person solely based on his or her arrest history unless that history is relevant to the job is against guidelines laid out by the Equal Employment Opportunity Commission. But it still happens, and the new legislation would keep “Have you been convicted of a crime?” off job applications so that answers in the affirmative do not immediately consign the job-seeker to the reject pile.

“Men and women are being incarcerated at enormous rates, and being sent home where there is no support system in place. You send them home and there is no possibility of them having a better life,” said Davis. “Corporations, the private sector, the public sector, all discriminate against these men for no reason, just because they have a criminal record. It is not based on whether or not they have the skills to do the job.”

One bill the Nebraska legislature seems set to pass would prohibit public employers from asking about a job hopeful’s criminal history on an application.

Another measure, in Baltimore, would require that private sector employers not inquire about an arrest history or run a criminal background check until they make a job offer to an applicant. Employers who violate the restriction and run a criminal background check ahead of time would face criminal charges themselves.

“If you try to get work in a factory, how is your 10-year-old DUI relevant to that, if you are not driving a forklift?”

Donald Fry, the president of the Greater Baltimore Committee, a business lobby, said the bill hurts employers. Making an offer only to find out that the recent hire’s arrest history is disqualifying, he said, would mean having turned down other applicants, who would likely have accepted other offers in the meantime. For an applicant to be offered a job only to have that job offer revoked because of a previous arrest also would likely open the business up to an investigation by the Equal Employment Opportunity Commission, as the employer would be forced to explain why the arrest was relevant to the job.

“There is certainly a need to reduce recidivism in the country and in metropolitan areas such as Baltimore, and business has a role in that, but this seems exceptionally stringent,” Fry said.

Businesses say they support the idea of giving one-time offenders a second chance but that the patchwork of legislation makes knowing how to comply difficult, especially as many companies operate across city and state lines. Ten states now have some form of Ban the Box policies, as well as 50 city and counties, and many more are considering some kind of shift in policy. Some of the laws guide how the government can conduct background checks when it hires, and some extend to how government contractors or vendors can check criminal history. The laws also vary on when an employer can check criminal history—after the first interview in some cases, later in the process in others—and what factors employers may consider if they deny an applicant based on criminal history, e.g., what the arrest was for, how long ago it was, and whether the offender went to rehabilitation.

“The movement itself is coming from a really good place. They want ex-offenders to get back to work, and we agree that is a good thing,” said Angela Preston, vice president of compliance at Employee Screen IQ, which conducts background checks. “Our position is that ‘Ban the Box’ is not a bad thing but businesses are saying, ‘We need clarity.’ When you have 10 different state laws and 55 different local and county laws, it just confuses the issue. Businesses are saying, ‘Tell us what the rules are.’”

Madeline Neighly, an attorney with the National Employment Law Project, said the recent spate of legislation is a result of the winding down of the drug war and a rethinking of the way criminal justice has been practiced in the United States, now that one in four Americans has some kind of arrest record.

If employers are forced to wait until they have met with or interviewed applicants, would-be employees are more likely to be given a chance to explain their criminal past and be given a second chance; if applicants just check a box that says they have been arrested for a crime, they are more likely not even to get an interview, she said.

“If you try to get work in a factory, how is your 10-year-old DUI relevant to that, if you are not driving a forklift?” she said.

As for Davis, it remains to be seen what his work on the Michigan version of the law will come to. Harvey Santana, a state lawmaker from Detroit and a Democrat, pointed to a recent case in which two employees at a Family Dollar in nearby Dearborn were murdered by a co-worker who had a criminal record. Family Dollar, like other big box chains such as Target and Walmart, does not have a felony check box on its applications.

“As a parent, I have the right to know if my daughter is working in a safe environment,” he said. “We have to do our due diligence.”

But for Davis, even Ban the Box legislation does not go far enough.

“Even banning the box doesn’t mean they can’t go on a computer and look you up,” he said. “These men and women need to be placed on solid ground.”