Tight labor markets and simple compassion are among the reasons that small businesses are getting behind fair-chance employment, a movement to level the playing field for job hunters who have a criminal record. But even advocates acknowledge that, despite the momentum, there are hurdles beyond the expected concerns about public safety.
The movement’s centerpiece, “ban the box,” meaning the box on job applications that asks whether a candidate has a criminal history, already has a legal foothold in 29 states and 150 counties or cities. Many of the laws apply only to the public sector.
But big cities including Philadelphia and Los Angeles now have strict ordinances for private businesses, and last month, California became the 10th state to make banning the box, and in some cases banning any discussion of past criminal infractions during job interviews, a requirement for private businesses, too. The others are Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island and Vermont.
In a nation where one in three working-age adults has had a scrape with the law — and where a conviction that does not affect an applicant’s qualifications can still make it hard to secure a job years later — supporters of fair-chance hiring say it does more than fight stigmas.
“We’ve seen estimates from the Center for Economic and Policy Research that show that, when people with records can’t find work, it affects our G.D.P. by $78 to $87 billion per year,” said Beth Avery, a staff lawyer at the National Employment Law Project, a nonprofit research and advocacy organization in New York.
Still, “there’s been some ideological pushback to the government telling employers what they can and can’t ask,” Ms. Avery said.
Some small businesses worry that fair-hiring laws will expose them to litigation.
“We’ve had people ask us, ‘Is the person I didn’t hire going to sue me?’” said Elizabeth Milito, senior executive counsel at the National Federation of Independent Business, a nonprofit organization with about 300,000 members. Most of them have five to 10 employees — “the little flower shops, the small building contractors,” Ms. Milito said.
Other concerns that she is hearing center on the costs of banning the box. Many laws, including the ones in Los Angeles and Philadelphia, allow for background checks only after a job offer.
“Time is money, and our members need to be able to abort the hiring process right away, not after going through an interview and a job offer,” Ms. Milito said. “They need to send somebody in there to hang the drywall tomorrow.”
A more surprising source of worry are fair-chance advocates who fear that banning the box may do harm in some cases, especially for minorities, who are affected most by job discrimination because they are incarcerated at higher rates than whites.
A report published by the National Bureau of Economic Research last year found that when employers had no information about an applicant’s criminal history, biased assumptions crept in, hurting the chances of minority candidates. (The National Employment Law Project, Ms. Avery’s organization, has argued against this conclusion.)
In Genevieve Martin’s experience, delaying conversations about applicants’ pasts may have the unintended effect of discouraging transparency. She is the executive director of the Dave’s Killer Bread Foundation, which spreads the gospel about second-chance employment as a platform for Dave’s Killer Bread, an Oregon company that produces one of the country’s top-selling sliced organic breads.
“Ban the box is a great idea at face value,” Ms. Martin said. “The part about removing the box from the application, I fully say, ‘Yes, that’s great.’”
She added, “But unfortunately, I come at this from an idealistic point of view.” Until we’re ready to talk openly about past arrests and convictions, she said, the stigma will remain, and so will the hurdles to finding work.
Dave’s Killer Bread Foundation was formed in 2015, 10 years after Dave Dahl, who spent 15 years in prison on drug-related charges, helped found the company. Through regular gatherings it calls second-chance summits, the foundation brings together government agencies, nonprofit groups and businesses to try to break down barriers for job hunters with records. It may be the private sector’s most vocal and active proponent of fair-chance employment.
Thirty percent to 40 percent of the 250 workers at Dave’s Killer Bread have criminal backgrounds, Ms. Martin said. “We know we get the best possible candidates and employees when we get to have a conversation with them about their background and what happened to them,” she said. (Although Oregon bans the box on applications, employers can ask about criminal records during the interview stage.)
That conversation, Ms. Martin added, does not have to wander into the specifics of a crime. “What we want to talk about is, O.K., you’ve made us aware that something’s come up in your past. But insert whoever you are now,” she said. “We’re looking for ownership and accountability of your actions. What have you done since you were incarcerated?”
Among the companies that Dave’s Killer Bread Foundation works with is Checkr, a 2015 San Francisco start-up that does background checks for businesses including Uber and GrubHub.
“Our stance with ban the box has always been that we’re for it,” said Danial Hazarika, Checkr’s head of marketing. He means that Checkr, which has around 150 employees, supports and complies with laws requiring box-banning on its own job applications, and that the company is careful about running background checks for its clients only after an applicant has given documented consent.
His colleague Ian Harriman, an account executive at Checkr, believes that all but a few existing ban the box laws should be tougher. “They’re a good first step but not a solution,” Mr. Harriman said, because they still allow employers to make hiring decisions based on background checks.
Ban-the-box bills passed with other fair-chance ordinances are better because they go further in their protections, he said. The one enacted in Los Angeles last year, for example, requires employers to notify applicants in writing that a job offer has been withdrawn because of their criminal history, and to include in that notification why the criminal history is relevant to the position.
As protections for job seekers with pasts are getting sturdier, some are questioning whether businesses are paying attention.
“I did an informal survey of employers in the Boston area — Boston was one of the earliest cities to ban the box — and I saw how unfamiliar hiring managers were with ban the box,” said Devah Pager, a professor of sociology and public policy at Harvard who studies racial discrimination in employment. “
The National Employment Law Project’s research into the effectiveness of ban the box is in progress; evidence so far includes a finding that the number of applicants with criminal records recommended for public jobs in Durham County, N.C., nearly tripled in the two years after its policy was passed.
Although ban-the-box laws have been spreading, there are also those who have never needed them. Benjamin Bynum, who owns five Philadelphia restaurants, including the popular Warmdaddy’s, with his brother, Robert, is one. Mr. Bynum said he was not aware that Philadelphia had ramped up its law last year. Had he known, though, it would not have affected the way he and his brother have been hiring cooks, dishwashers and servers since 1990.
Discarding one in three applications for a past conviction does not make good business sense, he said, because of high turnover rates in the restaurant industry. But his sense of justice also plays a role.
“We’ve always felt that people should be given an opportunity to reform their lives,” Mr. Bynum said. “Once you’ve paid your dues for mistakes you’ve made, you should be able to find your way without being penalized.”