Conviction box removed from job applications raises questions

The first step in getting most jobs is filling out an application. There’s a box for this and a box for that, and the infamous box for “Have you ever been convicted of a felony?”

The “ban the box” movement, which has been growing for a while nationwide, calls for some employers to wait until the interview or a provisional job offer has been presented, before inquiring whether or not the candidate has a criminal past. The idea is that ex-offenders will have a better chance of getting employment if bias is eliminated at the beginning of the job search.

The thought is that employers will be more open-minded, and won’t automatically screen out otherwise qualified applicants. California is one of 23 states that have adopted this growing law. This will effectively extend the state’s policy to some 6,000-plus local and regional government agencies in California.

Applications and initial interviews for jobs that by law require a conviction background check, such as police officers, are exempt. California’s law goes into effect July 1, 2014.

While the popularity of “ban the box” was growing, the U.S.  Equal Employment Opportunity Commission (EEOC) concurrently advised employers that background checks may discriminate against ethnic groups disproportionately convicted of crimes, such as Latinos and African-Americans. Last year the U.S. Equal Employment Opportunity Commission advised that employers not ask about convictions on job applications because it risks running afoul of federal civil rights law, because a disproportionate percentage of minorities have criminal records.

In June, the commission backed up its advice by suing a South Carolina BMW manufacturing plant and retailer Dollar General, alleging they violated Title VII of the Civil Rights Act “by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment,” a press statement said.

The growth of “ban the box” along with the EEOC’s advisement not to ask about convictions on applications which may cause an adverse impact on some minorities, has employers and compliance officers confused and concerned. Why? The Box Movement is spreading to private employers in some states. Minnesota recently became the third state to pass a law requiring private employers to eliminate the box. The new law there takes effect on Jan 1, 2014.

The removal does not eliminate the background check or drug test, but it offers those who’ve been previously incarcerated a chance to get their foot in the door. In 2010, Walmart eliminated the box from its applications, and Target recently followed, launching a nationwide campaign to “level the playing field.” Elimination of the box won’t X out the background check or drug test, but it will offer those who have a prior record a chance.

Aside from the obvious concerns and confusion from employers about how to stay in compliance without running afoul of EEOC policies and The Box Movement potentially, how do these state laws really help someone with a conviction trying to find employment?

On its face, it appears to give those who might be screened out a chance to sit face to face with an employer for a job interview. But what does it really do to prevent bias? Can you just eliminate bias? Employers will still ask the question “Have you ever been convicted of a felony?”

You’ll still have to answer. Some employers may simply have an implicit bias against certain groups and assume that they are more likely to have a conviction. The Box Movement won’t stop that.

What about the role of social media and background checks? In the age of no privacy, employers can find out a ton about you just by looking at your social media profiles, pictures, connections, comments, gaps in employment, education, and anything else they’d like to know. Is your mug shot posted on line? It might be, due to public interest. Technology makes it possible to secretly screen “outta the box.”

While The Box Movement seeks to do good things for people who might otherwise not have an opportunity for a face to face with an employer by deferring the question until later in the hiring process, it may be setting many up for potential disappointment.

Banning the box doesn’t appear to do much in the way of effectively eliminating bias or preventing employers or employees from doing their own private investigation into your background. It doesn’t replace a background check that will eventually reveal a conviction. What exactly does it do then? It replaces an inquiry with assumptions and suspicions. It naïvely assumes that a criminal conviction will be weighed fairly against qualifications in most circumstances.

Keeping those issues in mind, there are more. How do employers adequately screen job applicants now? How do we interpret inconsistent state laws? How is due diligence performed without liability, especially as it applies to social media? What about employers who have offices in different states? What if the conviction we can’t inquire about yet is job related? Shouldn’t we know this earlier instead of later in the hiring process to prevent negligent hiring, contrary to The Box Movement?

The Box Movement presents so many complex issues and concerns that its utility is in serious doubt.