Every now and then, you read a news story about an employee who went to a home to clean the carpet and later robbed the place. The perpetrator had a prison record.
That is not only a trauma for the homeowner; it’s a serious problem for the business owner, who probably will be sued. The business owner, you’d think, has a duty to screen his employees and make sure he doesn’t expose customers to the risk of employees with a known criminal history.
This poses a conflict with the “ban the box” movement. A standard practice on job application forms is to ask applicants whether they have ever been convicted of a felony. Check yes or no. The applicant who answers “yes” likely won’t be hired or even get a second look.
Advocates, such as the National Employment Law Project (NELP, nelp.org), want to eliminate that box.
The “ban the box” movement says ex-cons deserve a chance to start fresh. If society won’t let them earn an honest living, the argument goes, they may have no choice but to resume criminal behavior. It’s in society’s interest to help them get back on their feet – but it’s loaded with obstacles.
Currently the New Mexico Corrections Department has about 7300 inmates incarcerated. Most will be back on the street eventually. More than 17,000 are on probation or parole. Where are these folks supposed to work?
New Mexico made life a little easier for former inmates with legislation in 2010 that amended the Criminal Offender Employment Act (New Mexico Statutes Chapter 28, Article 2). The legislation prohibited agencies of New Mexico state and local government from inquiring into an applicant’s conviction history on an initial employment application until an applicant has been “selected as a finalist.” The law permits convictions to be considered when determining eligibility for public employment or licensure, but convictions “may not operate as an automatic bar.”
A bill in 2015 (SB 583, sponsored by Sen. Bill O’Neill, D-Albuquerque) would have extended that requirement to private employers. The bill passed the Senate by a slim margin but went nowhere in the House. It’s not clear whether the bill will be attempted in the 2016 short session.
NELP says seven states now have laws banning the box for private employers.
Turning someone down on the basis of past criminal history is not a legal cause of action, according to the Equal Employment Opportunity Commission (EEOC). The commission’s on-line “guidance,” which is not a rule, says an employer should not treat criminal history information differently for different applicants or employees, based on race or national origin. Employers know the law prohibits discrimination based on those criteria.
Another federal law, the Fair Credit Reporting Act, has several requirements for employers related to the use of background checks.
Human resources professionals say they are very wary of hiring anyone with a criminal history; their duty is to protect the employer from problems.
Some types of business, such as some child care and elder care, or work requiring a security clearance, have specific standards and simply cannot hire felons. One employer told me it would be unkind to raise an applicant’s hopes by letting him past the first hurdle.
A construction industry expert said he’s okay with hiring former felons and believes it’s the right thing to do. Some anecdotal reports say ex-cons may do well at jobs like convenience store clerking, especially in rough neighborhoods, because they are street-smart, and that they work hard because they are grateful for the opportunity.
For appropriate industries, “ban the box” appears to be a reasonable compromise between giving the ex-con a fair chance and protecting the public. There’s wide agreement that felons who get jobs have a much improved chance of staying out of trouble in the future. That’s what we want.