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By Chris Opfer
Jan. 21 — Businesses and the labor and employment bar appear to be warming up to the idea of “banning the box” on job applications, even if congressional Republicans are not fully on board.
The sponsors of a bipartisan bill (S. 2021, H.R. 3470) to limit criminal history inquiries in the hiring process see an opportunity in the growing interest in criminal justice reform on both sides of the aisle. Although Republican supporters told Bloomberg BNA they're unlikely to expand the measure beyond covering government agencies and contractors, employer groups and lawyers said a blanket ban on the box might not be such a big deal.
That's because many employers already are complying with a myriad of city and state ban-the-box laws and related Equal Employment Opportunity Commission guidance. Stakeholders told Bloomberg BNA that they're concerned about blanket mandates—including on small businesses and those required by law to perform background checks on employees—but that some restrictions could be workable.
“I do think that most employers have changed their practices because of the EEOC guidance and because of the ban the box laws,” Pamela Devata, a partner in Seyfarth Shaw's labor and employment practice group, told Bloomberg BNA Jan. 21.
In his recent State of the Union address, President Barack Obama listed criminal justice reform as one of the few areas for potential bipartisan action in the coming year (8 DLR A-9, 1/13/16).
Reform efforts thus far have focused largely on revamping federal sentencing guidelines for nonviolent offenders. A varied group of lawmakers, business leaders and civil rights advocates also are backing moves to make it easier for ex-cons to find work.
The bipartisan Fair Chance Act would require federal government agencies and contractors to make a conditional job offer before asking an applicant about his criminal history. In November, Obama instructed agencies to similarly delay those inquiries (195 DLR AA-1, 10/8/15).
“As a federal government, if we're talking about those particular jobs, we need to make sure that we're being fair to everyone,” Sen. Joni Ernst (R-Iowa) told Bloomberg BNA Jan. 21. “Those that have repaid their debt to society, we want to make sure that they're given an opportunity.”
Ernst is part of an eclectic group of bill sponsors that includes Reps. Elijah Cummings (D-Md.) and Darrell Issa (R-Calif.). The duo is best known for their fiery exchanges on the House Oversight and Government Reform Committee.
A total of 19 states and more than 100 counties and cities currently have ban the box—or “fair chance”—laws on the books, according to the National Employment Law Project. The EEOC guidance, which was last updated in 2012, warns employers that the use of criminal background checks may run afoul of federal discrimination law if it disproportionately impacts workers based on race, national origin or another protected status (80 DLR A-1, 4/25/12).
In a 2012 Society for Human Resource Management survey, 62 percent of businesses said they don't ask applicants about criminal history until after they've made a conditional employment offer. Big-name businesses have unveiled similar policies in recent years, including Wal-Mart Stores Inc., Target Corp., Home Depot Inc. and Koch Industries Inc., the Kansas-based chemical and biofuel refining conglomerate whose co–owners—Charles and David Koch—have been major players in funding Republican presidential races.
Koch Industries General Counsel Mark Holden told Bloomberg BNA Jan. 21 that the company has been able to widen its available talent pool by holding off on asking about criminal histories up front. He said managers prefer to “get to know the whole person” through the application process instead of making a knee jerk reaction about charges and convictions.
“We are a global employer and we've seen firsthand over the years the imperfections in our criminal justice system,” Holden said. “A criminal history doesn't mean you're a bad person, just that you may have made a mistake.”
SHRM is still evaluating the Fair Chance Act and hasn't taken a position on the bill, government relations advisor Kelly Hastings told Bloomberg BNA Jan. 21.
Just because many employers are already banning the box, doesn't mean they want the federal government to force them to do it.
Sen. Ron Johnson (R-Wis.) is a lead sponsor of the Fair Chance Act, along with Sen. Cory Booker (D-N.J.). Johnson told Bloomberg BNA Jan. 20 that it should be up to individual states to decide whether to require private employers generally to delay criminal background inquiries.
“What we're trying to do is ban the box as it relates to federal employees and contractors, to set an example,” Johnson said. “That's as far I'd want to go with that right now.”
Small businesses and those required to do background checks on their workers—such as child care providers—are likely to raise the strongest arguments against a federal ban on the box. National Small Business Association spokeswoman Molly Ball told Bloomberg BNA that the legislation poses significant costs for these employers by forcing them to consider applicants who they're barred from hiring or whose criminal history makes them unfit for the job.
“It's a pretty significant time drain and it can be a talent drain as well,” Ball said Jan. 21. She added that employers may have to restart the hiring process completely if they make a conditional offer to an applicant who is later eliminated from the hiring process based on criminal history.
On the other hand, some businesses may not have much of a choice when it comes to hiring workers with some marks on their records.
“There are a lot of entry level positions in our industry,” Angelo Amador, the National Restaurant Association's vice president of labor and workforce policy, told Bloomberg BNA Jan. 20. “We're known for giving people second chances and helping them get back in the workforce.”
Amador said it's important that restaurants have the ability to do background checks at some point in the process, but he said it “makes sense” to push the timing back to the offer stage. Koch Industries' Holden agreed, stopping short of calling for a national ban on the box.
“It works for us and we think it can work for other people,” Holden said of the company's hiring process. “But other businesses should be able to make their own decisions.”
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