Wall Street Journal: "'Ban the Box' Laws Make Criminal Pasts Off-Limits"

August 3, 2013

By: William Harless

RICHMOND, California - City officials in this San Francisco suburb passed an ordinance this past week prohibiting city contractors from ever inquiring about many job applicants' criminal histories.

The move in this city of 100,000 people, which is troubled by crime and high unemployment, is part of a growing national trend that supporters say is designed to improve the community's employment prospects amid wider incarceration.

Under the ordinance, approved by the City Council in a 6-1 vote and set to take effect in September, private companies that have city contracts and that employ more than nine people won't be able to ask anything about an applicant's criminal record; otherwise they would lose their city contracts. The ordinance is one of the nation's strictest "ban-the-box" laws, which are so called because many job applications contain a box to check if one has a criminal record.

"Once we pay our debt, I think the playing field should be fair," said Andres Abarra of Richmond, who was released from San Quentin State Prison in 2006 after serving 16 months for selling heroin. Mr. Abarra, 60 years old, said he lost his first job out of prison, at a warehouse, about a month after a temporary agency hired him. The agency ran a background check and "let me go on the spot," he said. He now works for an advocacy group called Safe Return that campaigned for the ordinance.

Others say the laws potentially endanger both employers and the public. "We have a responsibility to protect our customers, protect other employees and then the company itself" from potential crime, said Kelly Knott, senior director for government relations of the National Retail Federation, an industry group in Washington, D.C., which hasn't taken a position on ban-the-box laws but has cautioned against federal guidance that could limit how employers use background checks.

Richmond, with a population of about 100,000, joins 51 other municipalities that have passed similar ordinances, many in the past five years. Last year, Newark, N.J., barred private employers and the city government from inquiring into a job applicant's criminal history until they have made a conditional offer of employment, and employers can only take into consideration certain offenses committed within the past five to eight years. Murder, voluntary manslaughter and sex offenses requiring registry can be inquired about no matter how much time has passed.

Ten states also have enacted ban-the-box legislation, according to the National Employment Law Project, a nonprofit group that advocates for the laws. Many of those laws don't apply to job applications for "sensitive" positions, such as those involving work with children.

Michelle Rodriguez, a NELP staff attorney, said tougher sentencing laws in recent decades, particularly for drug crimes, have sent more people to prison, making post-incarceration unemployment a broader problem. "It really could be anybody who has a criminal record now--your co-worker, your neighbor," Ms. Rodriguez said. "And it doesn't mean they're a criminal. It means they had a run-in with the law."

According to a report by the Sentencing Project, a group that promotes changes in prison and sentencing policy, the U.S. prison population rose nearly fivefold between 1980 and 2011.

Last year, the U.S. Equal Employment Opportunity Commission issued guidance that doesn't bar the use of criminal checks but that urges employers to consider the crime, its relation to an applicant's potential job, and how much time has passed since the conviction. In June, the EEOC sued two large employers, alleging they used criminal background checks in ways that could disproportionately affect African-Americans.

In 2010, one in every 12 black men aged 18-64 in the U.S. was incarcerated, versus one in every 87 white men, according to a study by the Pew Charitable Trusts, a public-policy nonprofit. Nearly 27% of the population in Richmond is black, according to a 2012 U.S. Census estimate.

In Michigan, where a ban-the-box law has been proposed, the state's Chamber of Commerce is concerned businesses could face liability lawsuits after hiring ex-convicts if they end up hurting someone, said Wendy Block, a spokeswoman. "We feel the [existing federal] provisions are sufficient in terms of trying to prohibit job discrimination against former felons," Ms. Block said.

In Richmond, which had an unemployment rate of 11.9% in June, according to the U.S. Bureau of Labor Statistics, the city's Chamber of Commerce didn't take a position on the measure. But Chamber President and CEO Judith Morgan said the city's businesses "understand the need here to put people back to work and give people second chances." Ms. Morgan cautioned, however, that it is "nebulous" how the city will enforce the measure.

The Richmond ordinance also makes exceptions for jobs the city deems "sensitive," and it allows criminal background checks for positions, like police-department and schoolteacher jobs, for which federal or state law requires them.

Tamisha Walker, a 32-year-old college student who spent six months in prison for arson in 2009, campaigned for the new ordinance and said she hopes it can help Richmond be a place where people believe they can live successfully. She said a lot of people in Richmond want to "get out of Richmond and never come back. And it's sad, because we lose a lot of talent that way."

Copyright 2013 Dow Jones & Company, Inc.