‘Ban The Box’ For Federal Employees Is Fine, But Private Sector Could Be Obama’s Goal

Ken Cuccinelli and J.C. Watts Former Attorney General of Virginia; Chair, Colson Task Force
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Recently, President Obama announced during a speech in Newark, New Jersey that he would be directing the Office of Personnel Management to “Ban the Box” for federal employment opportunities. This would not include federal contractor positions.

For those unfamiliar with the term, “Ban the Box” refers to the practice of an employer not investigating or requesting information about an individual’s criminal history at the initial stage or stages of the application process.

Advocates behind “Ban the Box” theorize that by allowing an individual to get past the initial application period without their criminal record weighing in, there is a greater likelihood that they can ultimately obtain the position, thereby decreasing their chance of re-offending. Data shows that a steady job and housing are two major indicators of a person’s recidivism chances.

It is appropriate for the federal government to determine how it may use a record that they created for their own hirings. Similarly, the practice is acceptable in the private sector when a company voluntarily puts the onus on themselves. Companies like Koch Brothers, WalMart, and Home Depot have taken the initiative to delay an inquiry into an individual’s past subsequent to their initial screening to fill a job opening.

However, increasingly cities and states are moving to use the force of law to “Ban the Box” for the private sector. Even further, some cities such as Baltimore, Washington DC, and Seattle have introduced “Fair Chance Hiring” policies that require private businesses big and small to comply with a litany of additional regulations. These include evaluation criteria for examining a person’s criminal history and also requiring a grievance period, where an individual denied based upon their criminal history can supply further information to the employer, who must reconsider the denial; all lengthening the time and cost spent on the hiring process.

In many cases, violating these laws, even without any intent on the employer, can carry heavy fines and even criminal penalties of their own, thus propelling instead of preventing the collateral consequences of the criminal justice system “Ban the Box” proponents hope to avoid. This is to say nothing of the expanded possibility for civil litigation.

Placing this burden on the private sector simply increases the mountain of red tape needed to ensure a business isn’t sued, fined, or criminally charged. This will prevent many businesses from actually hiring people, the opposite of what “Ban the Box” set out to accomplish.

Conservative states such as Texas, who have led the charge on criminal justice reform since before Obama swore in as President, have shown that there are alternatives legislatures can push that will be more effective and less burdensome on citizens. The Lone Star State’s last legislative session saw a bill passed that expanded the use of criminal record sealing to individuals who have been convicted of one non-sexual, non-violent misdemeanor. The legislation requires the individual to stay crime free for a certain amount of time post-conviction, gives prosecutors the opportunity to recommend a disposition and ultimately leaves it in the hands of a judge to determine whether to grant a criminal record sealed.

If the record is sealed, an individual can honestly state they were not convicted of the crime for employment, housing, and licensing purposes, while sensitive fields like law enforcement still have access to the record. This places the personal responsibility on the individual who committed a crime years ago, rather than the employer to show society that he or she is ready to live a law-abiding life and be a contributing member of society.

Other legislation such as indemnity for landlords and employers hiring certain ex-offenders that have passed in Texas in recent years will incentivize, rather than punish employers for giving a second chance.

It is important to give an ex-offender the opportunity to move past their mistake once they have paid their debt, since the vast majority will reenter society at some point. Conservatives at the state level have shown that criminal justice reform is best achieved not by the left’s continued campaign to expand governmental regulation over citizens’ everyday lives.  A better, proven approach is one that allows individuals to place their future in their own hands and incentivize change from employers rather than criminally obligate it.

Ken Cuccinelli is the former attorney general for Virginia. J.C. Watts is chair of the Charles Colson Task Force on Federal Corrections, and a former Republican member of the U.S. House of Representatives from Oklahoma. They are signatories to the Right on Crime statement of principles.