When Dwyane Jordan got busted four years ago on felony drug-peddling charges, he was thankful to get probation and addiction treatment rather than prison time.
What he didn’t bargain for was the haunting effect that being branded a felon would have on his ability to lawfully earn a living—a burden he shares with roughly 70 million U.S. adults who have criminal records. “It reminds me of ‘The Scarlet Letter,’” said Jordan, 43, of Washington, D.C.
Jordan’s criminal past comes up nearly every time he applies for a job, because most employment applications ask him to check a box if he has been convicted of a felony. He has been tempted to lie about his conviction, because he believes marking the box has prompted multiple employers to reject him in the past year. But if the employer runs a background check and learns the truth, he’d be disqualified anyway.
A criminal record is such a stumbling block to employment that many states, cities and counties are passing laws to remove the question from applications for government jobs. Increasingly, some are forcing private employers to ban the question, too.
So far this year, Delaware and Nebraska have passed legislation to “ban the box” from application forms for most state, city and county jobs. In the past five years, California, Colorado, Connecticut, Illinois, Maryland, Massachusetts, New Mexico, Minnesota and Rhode Island and the District of Columbia have banned the box for most state jobs. Hawaii was the first state to ban the box in 1998.
Georgia Gov. Nathan Deal, a Republican, plans to ban the box from applications for most state jobs by executive order as soon as next month, according to spokeswoman Sasha Dlugolenski. Legislation is pending in New Jersey. And more than 60 cities and counties – from Indianapolis to Kansas City, Missouri, to Alameda County, California -- have adopted similar laws for government employment. Rochester, New York, did so this week.
Four states – Hawaii, Massachusetts, Minnesota and Rhode Island – have extended the ban to include private employers. San Francisco did it in February. And the Baltimore City Council last month voted to impose the rule on businesses with 10 or more employees.
Some of the nation’s biggest employers, such as Wal-Mart and Target, also have banned the box.
Tommy Wells, a member of the D.C. City Council, wants Washington, D.C. to extend the city’s 2010 law banning the box on city employment applications to private businesses.
“The biggest challenge they (people returning from prison) face is getting housing and employment,” Wells said. “(Banning the box) is one thing we can do to help."
Not Forced to Hire Felons
Ban-the-box laws don’t prevent employers from rejecting applicants because of their criminal pasts. However, they typically prohibit asking the question or running a criminal background check until the first or second interview or until an offer is made. The goal is to prevent employers from blackballing people based solely on their criminal background.
Postponing the question gives a prospective employee an opportunity to explain the circumstances of the crime, to point out how long it has been since it was committed, and to present evidence of rehabilitation.
“You’re not required to hire anyone,” said Michelle Rodriguez, a lawyer with the National Employment Law Project (NELP), one of several non-profit groups which have been pushing ban-the-box legislation. “This is about letting people get their foot in the door, and not being automatically disqualified.”
States and localities typically exempt jobs in law enforcement, child or nursing care, schools or other areas in which other laws require background checks for safety or security reasons. The same is true for jobs in the private sector that require background checks for licensing, such as drivers or day care workers.
Some laws say employers cannot ask about misdemeanors, arrests without convictions, or convictions that are expunged or annulled. They don’t allow the checks without the applicant’s permission. Some say applicants cannot be disqualified if their convictions don’t relate to the type of work they’d be doing.
Numbers Help Drive the Push
Several factors have converged to drive the growing movement to ban the box. Chief among them is the huge number of people who have criminal records.
NELP’s estimate that 70 million U.S. adults have arrest or conviction records is based on federal Bureau of Justice statistics compiled from federal, state and local law-enforcement and courts. And that’s a conservative figure, Rodriguez said. Tougher sentencing laws, especially for drug offenses, have swelled that total.
In Washington, D.C. about 8,000 people are released from prison every year, according to Wells of the D.C. council. In D.C., which has a large African-American population, black men comprise a disproportionate share of that total. The same holds true around the country: A 2010 study by the Pew Charitable Trusts (which fundsStateline) found that one in 87 working-age white men was incarcerated, while the numbers for African-Americans and Hispanics were one in 12 and one in 36, respectively.
Similarly disproportionate figures prompted the U.S. Equal Employment Opportunity Commission in 2012 to update guidelines for hiring people with criminal records. The guidelines stop short of ban-the-box laws, but they warn employers they could violate federal civil rights laws if they reject an African-American applicant based on his criminal record but hire a white one with a comparable record.
Similar to many of the state laws, the guidelines urge employers to consider the seriousness of an applicant’s crime, the time that’s passed since conviction and the nature of the job.
Do Old Criminal Records Matter?
Kiminori Nakamura, assistant professor of criminology and criminal justice at the University of Maryland, said most people who return to prison do so within three to five years. The longer they’re out, he said, the less likely they are to return.
Nakamura co-authored a 2009 study that found people with a criminal record are at no greater criminal risk after they’ve been out seven to 10 years than those with no record. “Very old criminal records are not very useful in predicting risk,” he said.
Evolv, a data firm that analyzes workforces, has found that people convicted of a crime – about 13 percent of its database of hourly workers – were slightly more productive than those with no records when it studied workers handling customer support phone calls.
Massachusetts has had a ban-the-box law for business since 2010. The state’s Commission Against Discrimination says businesses have generally complied and that it’s received only a “handful” of filings from applicants who said they’d been improperly asked about their criminal history. Those businesses brought their hiring policies into compliance, the commission said, and the state hasn’t had to initiate any complaints.
Bill Vernon, who heads the Massachusetts chapter of the National Federation of Independent Business (NFIB), said he hasn’t heard of any small businesses being in trouble over the state law. But, he said, small businesses also are more likely to hire ex-offenders when they return to the community because they know them.
But businesses, especially small ones, remain wary of the laws.
“A blanket ban-the-box policy doesn’t make good business sense for small business,” said Elizabeth Milito of the national office of the NFIB, which represents about 350,000 small and independent businesses nationwide.
Most businesses aren’t the size of Wal-Mart or Target, she said, or state or city government. Some don’t have human resources departments. And she said businesses that have to adhere to federal or state laws on background checks – such as transportation or security firms – shouldn’t have to put off asking people about their criminal history.
To ask small employers to wait until they’re ready to offer somebody a job before asking about a criminal record is “kind of wasting the business owners’ time,” she said.
Wells said he has heard similar complaints from many Washington businesses. But he’s determined to press ahead. “We did it for city government and it seemed to work,” he said.
Dwyane Jordan knows banning the box won’t guarantee him a job. During his struggles last year to find work, he got an offer from a company that didn’t ask about his criminal history on the application. But that offer was rescinded after he gave permission for a background check and the results came in.
Jordan now has a job as a server at a restaurant. He knows it’s a “high risk” job for a recovering addict because he’s around alcohol. But he’s been clean almost three years. He’s no longer living in shelters. Because tips have been good, he’s paid his rent three months in advance. And he’s talking about going back to school to build on his already four years of college.
But he also knows it may take him another decade to work his way up the economic ladder. If he has a consistent job history during that period, he hopes, the “scarlet letter” on his record will no longer matter.