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‘Ban the Box’ Laws Finding Inroads in Red States, Too

Dec. 3, 2019, 10:45 AM

A pending vote in St. Louis to ban questions about criminal records at the start of the hiring process signals a larger shift on criminal justice reforms in red states.

St. Louis is at least the third city in a conservative state to consider such a measure this year, following new laws in Columbia, S.C., and Waterloo, Iowa, that have removed the question of criminal history from job applications. At a time when state and local legislative trends seem to more closely adhere to a political ideology—such as with paid leave or equal pay laws—"ban the box” laws bridge the political gap.

The creep into red territory isn’t just a local phenomenon. A Florida state legislator is hoping to pass a bill that would require private employers to conduct an initial interview before running a criminal background check. The push for a statewide mandate isn’t a pipe dream. Over 40% of Floridians already live in jurisdictions that have banned the box, as several cities and counties in Florida have adopted similar policies, said Beth Avery, a senior staff attorney on the National Employment Law Project’s Work Equity team.

Thirty-five states, spanning “red” and “blue” districts, have some version of a ban the box law. Thirteen of those states, the District of Columbia, and several cities and counties have laws that ban the practice from private sector companies specifically.

In 2019 alone, Colorado, New Mexico, Maine, and North Dakota have passed laws requiring employers to remove from job applications questions pertaining to criminal convictions.

And even where there aren’t laws, some businesses are acting on their own. Koch Industries, Walmart Inc., and Target Corp. have voluntarily removed questions about criminal records from job applications.

Making It Personal

The push to ban the box for public employees in Columbia, S.C., began with Lester Young, who was sentenced to life in prison at 19 for murder. After serving more than 22 years, he now is a community organizer for JustLeadership USA.

Ban the box is helping to build up communities impacted by mass incarceration, Young told Bloomberg Law. And now, these communities are being told, “We see you as an individual that deserves employment,” he said.

Columbia was the first city in South Carolina to pass such a measure. Under the new ordinance, the city can no longer ask questions about a job applicant’s criminal record on an application or during the interview process, and a background check is allowed once a conditional offer of employment has been made.

As the issue of employment post-incarceration moves from urban areas to more rural cities and states, more “liberal” legislation is finding support, said Jonathan Segal, a Duane Morris partner and managing principal. “I think the reason why some of these counties are looking at this kind of legislation as a solution is more personal history with individuals who have been incarcerated.”

Now Young and other advocates are focusing on the state legislature. “That’s going to be a much bigger challenge,” he said. “You have to get people to buy into the concept.”

Earlier this year, Young and his colleagues hosted a workshop for business owners to learn about ban the box and why companies should remove the question from applications. He also canvassed communities that were hit directly by joblessness due to criminal convictions.

“There were representatives on the City Council from these districts,” Young said. “These individuals were not in favor of ban the box, but we went into their districts and collected signatures and petitions. Those were a bargaining tool to get them to represent their constituents.”

Once Young connected constituents with their representative, “that really changed the momentum in Columbia.”

Finding Compromise

Nearly one in three adults in the U.S. has an arrest or conviction record that can show up on an employment background check, according to the National Employment Law Project. That makes the potential impact on the labor market huge for more widespread ban the box measures.

“Ban the box is, by definition, a compromise measure,” said NELP’s Avery. “It’s about delaying when an employer can ask about a person’s record or when a background check on a job applicant can occur. It’s a compromise measure because more stringent policies—such as expungement—would be the ideal situation for people with records to really move on, so this is in the middle.”

Bipartisan agreement on ban the box has even found support in the current administration, based on President Donald Trump’s support for the criminal justice reform bill earlier this year, Segal said. “I think it will become less of a liberal/conservative issue, or a partisan issue, as it has been.”

“Ideally, empathy doesn’t have to come from a personal experience with something, but a personal exposure definitely increases the potential of empathy where it might not have previously existed,” Segal said.

For employers, there’s an “incredible shortage” of talent, and companies should think about whether a conviction really relates to someone’s ability to do the job, Segal said.

“Criminal justice reform is becoming an issue that both the left and the right can agree on,” Avery said. “It’s pretty hard to deny the impacts that mass incarceration have had on our society, particularly on people of color across this country. And it’s not just the sentence that affects them, but the collateral consequences and the stigma that make it harder for people with criminal records to go about their lives and support their families.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com