Checkbox IconOn January 1, 2015, Illinois will become the sixth state to require private employers to remove the criminal history inquiry from employment applications. Some municipal governments have similarly “banned the box.”

Often called “Fair Chance” laws, these regulations require employers to delay asking about applicants’ criminal histories until after they have been interviewed or, in the case of Hawaii, after a job offer has been extended. Some multistate employers have removed the criminal history inquiry from their employment applications nationwide rather than try to keep up with the changing legal landscape on a state-by-state or even city-by-city basis.

The ultimate goal of groups pushing for these laws is admirable: helping former offenders successfully reintegrate into society so that they commit no future offenses. However, the argument that employers’ evaluations of job seekers’ criminal history leads to higher recidivism rates is built on a number of false assumptions. I offer five of them below.

1. There is a box.

The term “Ban the Box” suggests that the criminal history inquiry used on employment applications is simply a check box and that applicants do not have an opportunity to provide the details of their criminal history. This suggests that employers are simply asking a YES/NO question without any follow up.

This is an over-simplification of most employers’ criminal history inquiry.

Employment applications typically give applicants a space to provide the details of their criminal history, including a description of the criminal conduct in which they engaged and the dates of that conduct.

Employers can then evaluate the relevance of the conduct to the position for which the applicant is being considered and the time that has passed since the applicants’ last interaction with the criminal justice system. If the offense is not disqualifying, the employer can also compare that applicant with other qualified candidates to identify their overall best fit for the job.

2. The “box” keeps former offenders from obtaining work.

It is former offenders’ past bad conduct that impacts the hiring decision – not the criminal history inquiry (unless the applicant lies about his history).

There is no evidence that when employers learn of past bad conduct makes a difference in the evaluation of a job seeker.

3. Employers unfairly eliminate candidates from consideration based on any criminal offense.

“Ban the Box” proponents claim that as soon as employers see an affirmative answer to the criminal history inquiry, they disqualify applicants from consideration.

In fact, most employers have a nuanced approach to reviewing an applicant’s criminal history. This includes reviewing the length of the applicant’s criminal record, the crimes the applicant committed in the past, the risks associated with the job for which the applicant is being considered, and how long ago the applicant engaged in the criminal conduct. All of this information, along with skills and experience, factor into how an employer ranks one job seeker against others.

4. If an applicant is impressive during the interview, an employer is more likely to overlook their criminal history when it is eventually disclosed.

This is the intended outcome of “ban the box.” However, employment decisions shouldn’t be made this way.

Employers should not make hiring decisions based upon how clever or impressive an applicant is during the interview. Most seasoned hiring managers can share stories of applicants who were amazing during the interview but were dismal failures once hired.

Employers should base hiring decisions on candidates’ ability to do the job and fit into the employer’s culture. One objective indicator of an applicant’s fit is their past behavior – including their past criminal behavior. Some kinds of criminal behavior would clearly disqualify an applicant from certain kinds of job. Other behavior might not disqualify an applicant but may factor into how that applicant compares to other applicants with no offense history. In the latter situation, banning the box could actually work against applicants who have “played by the rules” and avoided criminal conduct.

5. Delaying the criminal history inquiry doesn’t negatively impact an employer.
For many open positions, particularly those for low-skill jobs, employers often receive dozens of employment applications. Employers can afford to interview very few of these applicants in order to make a hiring decision. For that reason, the information in the employment application is a critical tool in quickly and fairly comparing applicants with one another.

An individual’s past criminal behavior, when evaluated appropriately, may speak to his judgment, honesty, temperament, and character. When selecting which candidates to call for interviews, employers should have as much objective information about each candidate as possible so that they can fairly evaluate all those who submitted employment applications.

By design, “banning the box” leads employers to schedule and conduct interviews with candidates who, based on their past criminal behavior, are not qualified or are less qualified than other applicants for the positions for which they have applied. This is a direct cost to employers in managers’ time and effort.

On December 16th, Imperative Information Group president Mike Coffey, SPHR will be providing a free one-hour webinar for employers on how to create a criminal history evaluation tool. This program has been approved for one-hour of general recertification credit by the HR Certification Institute for credentialed HR professionals. Recordings of our previous webinars, including Background Screening Policy Considerations to Avoid Discrimination Claims and Outside of the Box: Developing a Legally Compliant and Effective Criminal History Inquiry are also available on our website.