More states are instituting 'ban the box' laws to limit automatic background checks for all jobs. Why some employers aren't on board with these laws.
Lauren Johnson was pregnant in 2008, when she got into a car wreck and broke her foot. That meant waitressing was out. She had been working at a restaurant in Austin, Texas, to make ends meet, but she couldn’t run food from the kitchen in a cast.
Instead, Johnson enrolled in a dental assistant training program at Texas State University. The course cost about $3,000 in nearby San Marcos. She earned her certificate of completion, updated her resume and started applying to dentist’s offices around town. She was hired at one only to be fired a few weeks later, after, she recalled recently, her supervisor discovered she was pregnant. But another opportunity soon presented itself. At the end of an especially promising interview, the woman meeting with Johnson let her know she was a great candidate. Johnson was relieved. Soon, she wouldn’t have to worry about whether she could afford to feed and care for the baby she was carrying, and her other children, two boys ages 2 and 4.
“We just need to wait to get the background check back and you can get started,” the woman said.
“Well,” Johnson said. “Let’s talk about that.”
She had a criminal history, she explained. She had served time in county jails and state facilities for drug offenses.
The woman didn’t flinch, but she told Johnson she’d have to consult with the company’s corporate headquarters. When they spoke again a couple of days later, she had bad news. She wanted to hire Johnson, she said, but company policy prohibited it.
“To be able to rebuild your life, to be able to overcome adversity, that should be part of your resume.”
Johnson had taken a class in prison to prepare for conversations like this. Her instructor had advised her and other inmates to avoid confirming that they had a criminal history on job applications. Don’t check either box, the instructor said; instead, write down that you’ll discuss it during the interview. The idea was that it would pique employers’ curiosity, and it would give people like Johnson a chance to talk about their backgrounds in person.
Johnson remembered filling out those applications as a teenager, when she’d catch the bus to the mall and camp out in the food court, hoping to land a job at a gyro spot or the Chinese restaurant.
“Man,” she thought back then. “It would be so easy if they streamlined the process.”
And then they did. Online applications meant less time driving around town, inquiring about open positions and carefully penciling in employment history and references in clear handwriting. But they also prevented applicants from leaving answers blank. If Johnson didn’t click “yes” or “no” on a question about criminal history, she couldn’t move on to the next page.
But formerly incarcerated applicants argue that if they do check “yes,” they don’t have a chance.
Cities and states weigh banning the box
Across the country, cities, counties and states are trying to give people who have served their jail and prison sentences a better shot at landing a job, or at least an interview. More than 30 states and more than 150 cities and counties across the country have adopted fair chance hiring laws, often known as “ban the box” rules.
Different states and jurisdictions have different laws. Eleven states and more than a dozen cities regulate the private sector, while other laws apply only to public employees. The hope is that by scrubbing questions about conviction history from job applications, and waiting until later in the hiring process to run background checks, employers will review job candidates’ qualifications before considering their criminal records.
“These laws are really about trying to humanize people and incorporate that kind of approach into the hiring process,” said Maurice Emsellem, director of the Fair Chance Program at the National Employment Law Project.
That includes language, and not referring to formerly incarcerated people as convicts, or felons—the “the F word,” as Lauren Johnson recently described it. Just as ban the box laws kick conversations about criminal histories after the interview, people who have served their sentences don’t want to be defined by their crimes. They’re people first, Johnson said; they’re more than their criminal histories.
When Johnson couldn’t find work as a dental assistant, she turned to Craigslist, cobbling together odd jobs. She and her husband couldn’t afford child care and her boys weren’t in school yet, so they were occasionally in tow, accompanying Johnson as she cleaned houses or folded laundry.
But in 2017, she joined the ACLU of Texas as the civil-rights organization’s criminal justice outreach coordinator. She helps the group advocate for criminal justice reform. Her criminal history is an asset to such efforts, and she thinks it can be for others, too.
“To be able to rebuild your life, to be able to overcome adversity,” she said, “that should be part of your resume.”
Lauren Johnson lost job opportunities when asked about her past drug convictions. She now works for the ACLU of Texas to push for eliminating universal automatic background checks. “Everybody has the inherent ability to be more than the worse choice they ever made,” she says.
Johnson started using drugs when she was 14. It wasn’t until she was in her 20s, though, that she got in trouble for it. She had her first son awaiting trial in custody in Travis County, where Austin is the county seat. She watched him take his first steps at the halfway house where she was living after she was released. She worried that he would reject her after all those months apart, but as soon as they laid down on the bed together, he snuggled close.
When she relapsed five years later, she was arrested again. By that point she had bought a house. Then she was sentenced to more time.
“Our mistakes are only mistakes,” she said. “Everybody has the inherent ability to be more than the worse choice they ever made, and it’s our job to give them the opportunity to live up to that.”
Of course, Johnson has built a career in which her background isn’t a problem, but a boon. For other formerly-incarcerated job hunters, finding work can be harder.
In California, Sandra Johnson was incarcerated about a dozen times over a 15 year period, mostly for drug offenses. She started using more heavily after her son was murdered. “To be honest,” she said, “I don’t know when I became an addict. I was trying to mask my broken heart.”
“Do I want a day-care worker with a felony? No. I’d rather have facilities say up front, if you have those things, we’re not going to hire you. It doesn’t matter how charismatic you are.”
When she was released from the Central California Women’s Facility in Chowchilla in 2009, she filled out application after application online. This was before California’s Fair Chance Act, which went into effect in January and generally prohibits employers of more than 5 employees from asking about convictions until they make a job offer. So Sandra Johnson confirmed that she had a record when she was asked about her criminal history.
“I never found a job that way,” she said. In 2017, she was hired by Legal Services for Prisoners with Children as an organizer for the group’s All of Us or None program, which focuses on fighting for the rights of formerly-incarcerated people and their families. But as she and others seek to expand opportunities for formerly incarcerated job candidates, they’ve faced resistance.
Some say ban the box goes too far, others say not far enough
Ellen Wood was the incoming chair of the Austin Chamber of Commerce when she learned the city council was planning to introduce a ban the box law, and then vote on it less than a month later.
“There was virtually no input from the business community on the actual proposal,” she said. And there were major problems. Wood, who runs, vcfo, a company that places employees in businesses to help with finance, accounting and human resource operations, worked with the mayor to carve out an exception for firms like hers. But she thinks many other industries merited an exception to the fair chance hiring ordinance, which Austin enacted in April 2016.
“We hire very senior-level professionals in the finance and human resources world,” Wood said. “These folks then are placed on a fractional basis with our clients, and they have access to extremely sensitive financial information…I cannot hire anybody who has a felony, really any kind of felony.”
To push through the hiring process only to discover a candidate has a criminal history after offering them the job could cost more than $25,000 to $30,000 “in time and money when you consider all costs,” she said. But she worries about other fields, like daycares or assisted living facilities, where her parents live.
“Do I want a day-care worker with a felony?,” she said. “No. Do I want someone working with my parents with certain things on their backgrounds? No. I’d rather have facilities say up front, if you have those things, we’re not going to hire you. It doesn’t matter how charismatic you are.”
“It’s hard to ignore the fact that somebody checked that box, ‘formerly convicted. You basically set that application aside and work with somebody that’s more hireable.”
She thinks delaying conversations about conviction history is a waste of time for formerly-incarcerated applicants, too. Look at it from the candidate’s point of view, she said. Wouldn’t you rather know up front?
Enrique used to be a hiring manager, the chief financial officer at a company.
“It’s hard to ignore the fact that somebody checked that box, ‘formerly convicted,” he said. “You basically set that application aside and work with somebody that’s more hireable. You cannot avoid it.”
Then he was charged with embezzlement. (We’re not using his real name because some of his family members don’t know about his criminal history; Enrique is a nickname.) He pleaded no contest and was sentenced to eight months in jail. When he was released, he struggled to find work again. Sometimes, even when he didn’t have to check a box, his job offer was rescinded when the employer found out he had a record.
He supports ban the box, but he thinks it’s just a start. Employers should consider not if someone has a conviction history, but how many times they’ve been incarcerated, how long they’ve been released and what they’ve done to improve themselves and their lives.
“There’s a lot of talented people out there that’s formerly incarcerated that’s not being given the chance,” he said.
Sandra Johnson says she started using drugs more heavily after her son was killed. She struggled to find a job because of past drug convictions. “I shouldn’t be held hostage to my past,” she says.
For Sandra Johnson, having a job meant she stayed out of prison. “I was a recovering addict and I had structure in my life,” she said. “I was feeling good about myself and paying my bills and starting to save some money.”
“I shouldn’t be held hostage to my past,” she added. “If my criminal conviction doesn’t have anything to do with the job, then I should be able to work there. I have the right to work and feed my family just like everybody else.”
“Gone are the days where people used to say, ‘We don’t hire anybody with a felony conviction.’ I haven’t heard that in years.”
Pam Bratton, vice president of Meador Staffing Services, a staffing agency in Texas, thinks there’s a misconception that employers don’t want to hire people with criminal records. Sure, she said, you don’t want someone convicted of sexual offenses against women working closely or unsupervised with a group of women. But she doesn’t think the City of Austin “gave employers credit for having enough sense for knowing how to hire people and for making those decisions. They wanted a blanket decision.”
She pointed to a recent applicant who wanted to be a sales rep. But the position required taking credit cards from customers and processing the sale on the spot, and this man had been convicted of embezzlement, Bratton said. “We can’t trust him with our consumers’ credits cards.”
After attending city council meetings in Austin where formerly incarcerated people testified in support of a ban the box law, Bratton started to suspect they were leaning on their criminal histories as excuses for why they weren’t finding jobs. One woman seemed volatile, Bratton said; “I could see where someone having a conversation with her would be like, “No, thank you.” Maybe it was was a personality problem, unrelated to their background check.
“Employers do hire ex-offenders,” she said. “Gone are the days where people used to say, ‘We don’t hire anybody with a felony conviction.’ I haven’t heard that in years.”
When I asked how Meador was faring under the city’s new restrictions, though, she revealed that the Pasadena, Texas-based business had closed its Austin office in 2016. One large factor in the decision, she said: The company didn’t want to stay in a city with that kind of government overreach.