California Governor Jerry Brown has signed a bill into law requiring that governments at the state and municipal levels first determine whether an applicant for a position is qualified before asking questions about the applicant’s criminal history.
The number of job seekers with criminal convictions is growing, and it is estimated that one in four adults living in California has a record that would reveal prior arrests or convictions. California also claims the most state and government employees in the US. According to Michelle Rodriguez of the National Employment Law Project, there are “huge numbers of people who can’t get work and at the same time more and more people who have gone through the criminal justice system.” The problem is not unique to California, and has led to “Ban the Box” campaigns nationwide.
According to the National Employment Law Project, more than forty cities and counties have passed laws prohibiting employers from asking about a job applicant’s prior conviction record on the initial job application and have passed similar measures requiring that hiring organizations demonstrate the necessity of enforcing criminal records restrictions before making criminal history a basis for a hiring decision.
In 1998, Hawaii was the first state to “ban the box” for both public and private employers. Employers in Hawaii may not perform a criminal history records check on an applicant until a conditional offer of employment is extended, and should a criminal history be uncovered the record may only be considered if it has direct bearing on the position. Connecticut, Massachusetts, Minnesota, New Mexico, and Colorado have since passed similar legislation. In Minnesota, employers must wait until after the first personal interview to ask about criminal records.
A “ban the box” bill is currently pending in New Jersey where the proposed legislation may face an uphill battle against opposition from the State Chamber of Commerce, which has voiced fears that litigious applicants denied employment may use the measure to bring lawsuits for unfair hiring practices. Certain business groups in New Jersey have also vocally opposed the state’s proposed measures. The state legislature is not expected to debate the legislation until after the November 5 elections.
As criminal background checks for even basic and entry-level positions have proliferated, many groups have questioned the necessity for such checks at all levels of employment. The National Employment Law Project has been at the forefront of defending the rights of those with criminal histories, estimating that 65 million American adults face barriers to employment because of a conviction record.
At the same time, business groups and others have defended the rights of employers to ask applicants about criminal history. The National Association of Professional Background Screeners argues that background checks can help employers defend against claims of negligence that can arise from hiring an individual with a conviction record who re-offends in the course of employment. Others have also pointed out that in employment that involves money handling or public safety issues, such as employment that requires an individual to visit or enter customers’ homes, criminal background checks are a necessity.
The California law will not prevent state and municipal employers from asking criminal history questions of qualified applicants or from performing criminal background checks before making an offer of employment. However, since it lowers barriers to employment by requiring employers to verify qualifications before dismissing an application for previous arrests or convictions the law may benefit those with non-violent criminal records seeking employment.