Ban-the-box legislation that prohibits employers from including questions about conviction history on employment applications has become prolific over the past 20 years at the state, county, and city levels. It’s not surprising that the federal government has followed suit. “Ban the box” refers to a checkbox on a job application to indicate whether an individual has a record of criminal history. Approximately 15 states have prohibited this practice for private employers, and many municipalities have adopted similar ordinances. Ten years ago, the EEOC issued guidelines that employers cannot automatically exclude applicants for employment based on their criminal records.
Cadient recently removed criminal history inquiries from its application template with the combined goals of maintaining compliance for federal contractors, shortening the application, and reducing bias in the hiring process.
Legislation Impacting Employers Subject to OFCCP
Effective December 20, 2021, the Fair Chance Act will no longer allow federal employers or contractors to inquire about conviction history in the initial stages of the employment application process prior to extending a conditional job offer. Cadient has removed criminal history questions from its baseline application script to comply with this legislation. Background checks are still permissible later in the hiring process, although employers must still consider the recentness and nature of the offense and job relevance.
Proposed Legislation Impacting Private Sector Employers
Federal legislation proposes that private employers remove criminal history questions from employment applications within three years. The Workforce Justice Act encourages states to “ban the box” for both public and private companies, requiring employers to comply to be eligible for federal funding.
Intended Outcome: Fair Chance Hiring
The purpose of this legislation is to allow individuals with prior justice involvement a better chance at employment. It enables the evaluation of job applicants based on their job-specific qualifications. It gives them an opportunity to find gainful employment so they can rebuild their lives while contributing to society and the economy. The U.S. Department of Labor recently introduced a funded program supporting workforce entry for justice-involved young adults. Employers should consider re-examining their assumptions about applicants with criminal records. Since the demographic composition of incarcerated individuals is comprised of more people of color (see the report by the U.S. Bureau of Justice Statistics), we know that this also impacts the equity picture for hiring. Employers who focus on diversifying their workforce and promoting inclusivity should certainly find this of interest.
Reducing Recidivism
Studies suggest that individuals with prior incarceration stay employed as long as or longer than those without a record. Employers often find individuals with convictions to be highly motivated and loyal employees. Hiring formerly incarcerated individuals is a great way to reduce re-offending. A study in Illinois found that ex-offenders with job training and 30 days of employment had a lower recidivism rate. Data analysis by researchers at Northwestern University found that workers with criminal records had longer tenure and were less likely to quit voluntarily.
Overlooking Talent Amidst the Worker Shortage
Hiring justice-impacted men and women can address the talent shortage plaguing many companies across the country. A federal Work Opportunity Tax Credit provides financial incentives for employers open to hiring individuals with criminal records.
Resources
This information should not be construed as legal advice, and Cadient recommends that employers consult with their own attorneys. For more information about employment models for justice-involved individuals, you can visit the U.S. Department of Justice website. *Additional studies referenced or used to inform this article include these resources: Bureau of Justice Statistics; U.S. DOJ Update on Prisoner Recidivism; Exploring Employer Perceptions of Hiring Ex-Offenders; Supporting Reentry Employment and Success; and HR Executive’s How Companies are Putting Ex-Offenders Back to Work.
**The information provided in this article is for information purposes only and does not constitute legal advice by Cadient, LLC; instead, seek legal counsel before acting or refrain from acting based on information in this article.
