Major Cities Moving Toward “Banning the Box” (Employment Questions Regarding Criminal History)

Jan 15, 2009

Some major cities across the U.S. are eliminating questions regarding criminal history from their job applications in order to prevent convicts from being shut out of the workforce. This policy has been termed “banning the box,” in reference to the box that applicants are forced to check when they initially apply for a position. Such changes in hiring procedures are aimed at helping ex-convicts to make a successful transition into society. Cities are coming to realize that one of the most significant barriers to successful reintegration is the inability of these individuals to gain employment. Disclosure of a past offense, regardless of its age or relevance to the position being sought, often functions to automatically shut out an individual from a job they are otherwise qualified for.

These “ban the box” policies came about as a result of the national grassroots campaigning of an organization of formerly incarcerated people and their families called All of Us or None. These individuals, through their first-hand experience of the stigma that comes along with a criminal record, aimed at creating a fair and efficient approach to the consideration of a criminal history that balances public safety concerns with the need to provide opportunities to qualified applicants with prior records. In San Francisco, the proposal was adopted and took effect June 2006, with at least 7 major cities following suit. Oakland is among one of the cities which have adopted the policy and Los Angeles is still considering the proposal.

The primary goal of the “ban the box” policy is to reduce the likelihood that ex-convicts will commit new crimes. Statistics show that the amount of recidivism in the population is dramatic and various experts have recognized the toll it takes on communities, families, and the economy. Proponents of the “ban the box” policy point to a study by the Urban Institute finding that former prisoners that have jobs and earn higher wages are less likely to return to prison.

The new hiring policy only applies to public employment. However, “ban the box” advocates hope that the new policy can still serve as a model to encourage private employers, who are not bound by the new requirements, to hire otherwise qualified and motivated individuals. Also, where federal or state laws expressly bar people with convictions from employment in the public arena, pre-screening for a criminal record is still acceptable.

Even in cities where the “ban the box” policy has been adopted, criminal background checks in the later hiring stages still exist when deemed relevant or necessary to a position. Later checks ensure that those with criminal records are not weeded out of the talent pool before being able to proffer their skills. Cities have standards for determining whether criminal record is relevant to the job. For example, background checks are relevant to sensitive positions such as jobs with law enforcement, schools, and positions involving large amounts of money or unsupervised contact with children, the disabled, or the elderly. When relevant, cities also consider such mitigating circumstances as time elapsed since the conviction and evidence of rehabilitation. Timing of the criminal screening varies from city to city. San Francisco screens when the pool of applicants has been narrowed to the list of finalists and Oakland screens at the interview stage.

The expansion of the “ban the box” policy to other jurisdictions is unknown at this point. Though such proposals are being presented in more cities, many jurisdictions are likely to take the wait-and-see approach to determine how these policies work before taking steps to implement them.

Jayne Law Group, P.C., is a premier criminal defense firm which offers representation for individuals at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Jayne Law Group, P.C., practices criminal defense in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

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