Ban the Box Clears First Legislative Hurdle

by Frank Knaack, Executive Director

Earlier today the Alabama Senate Judiciary Committee voted to enhance public safety, strengthen our economy, and give people a second chance to make an honest living.

SB 198 (Sen. Singleton), and its House counterpart, HB 257 (Rep. Givan), would prohibit a state or local government employer from asking an applicant about their criminal history until a conditional offer of employment is made. A safeguard in the bill would enable the government employer to withdraw the job offer if the applicant’s criminal conviction is directly related to the job. Further, the bill establishes clear criteria for state agencies to consider during the screening process, which would better protect the agencies from claims of discrimination under Title VII.

Why should Alabama government employers ban the box? Because it improves the public sector’s ability to recruit the best and brightest, strengthens Alabama’s economy, helps make our communities safer, better ensures a second chance for Alabamians who have already paid their debt to society, reduces the criminal justice system’s disproportionate impact on people of color, protects Alabama from having to hire an individual whose criminal conviction is directly related to the job, and helps protect state employers from claims of discrimination.

Many of America’s largest companies, including Wal-Mart, Target, Home Depot, Starbucks, Koch Industries, and Facebook, recognize that banning the box is good for business. As Koch Industries General Counsel Mark Holden wrote last year, “For employers seeking the best talent, it makes sense for a company to consider all factors, including any prior criminal record, in the context of an applicant’s other life experiences. We are in a global competition for the best talent period; not the best talent with or without a record.” Our state and local government employers should view their hiring practices in the same light.

As the National Employment Law Project notes, when an individual with a criminal record has a job, they will contribute more to the tax base, purchase more goods, and is less likely to commit a new crime, thus reducing the amount of money that state and local governments must spend on their criminal justice systems. It is estimated that our nation’s economy loses between $78 and $87 billion each year because of lost output caused by criminal record-related barriers. To strengthen our economy, Alabama lawmakers should support this bill.

In addition to being a sensible business practice, banning the box will also make our communities safer. Alabama has approximately 21,000 people in its prisons, and another 11,000 in its jails. The vast majority of those individuals will be released and return to their communities. To reduce the recidivism rate, the Department of Justice has identified three key elements to successful re-entry into our communities. One of these key elements is helping these individuals find and keep a job. This legislation is a first step toward realizing a key element to reducing recidivism and making our communities safer.

It will also make our communities more fair. Under current law, an otherwise fully qualified applicant can be denied employment long after that applicant has completed their sentence. This practice places counterproductive hurdles in front of individuals seeking to rebuild their lives and provide for their families. Denying a person’s application without considering their qualifications or rehabilitation prevents people who have completed their sentences from getting a fair chance at a fresh start.

Because African Americans are disproportionately caught up in our criminal justice system, they are disproportionately affected when seeking employment. For example, while African Americans and whites use marijuana at roughly equal rates, in 2016 African Americans were over 4.5 times more likely to be arrested for marijuana possession in Alabama. Those individuals will be disproportionately impacted when filling out a job application that includes a criminal history box. This bill offers an opportunity to begin to address the long-term consequences of a criminal justice system that disproportionately affects African Americans.

To protect government employers (and taxpayers), under this legislation a government employer would be permitted to withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that “is directly related to the position of employment sought.” For example, this provision protects a state employer from being forced to hire a convicted embezzler to keep its books.

Finally, by balancing public safety concerns with a sensible approach to hiring, this legislation may help to insulate government employers from claims of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document for entities covered by Title VII, including state and local governments, to help eliminate unlawful discrimination in the employment hiring process. As outlined in the guidance document, an employer must show that the selection criteria use or selection procedures are “job related and consistent with business necessity.” Specifically related to an applicant’s criminal record, the guidance says that the individualized screening process should consider “at least the nature of the crime, the time elapsed, and the nature of the job” or otherwise comply with the EEOC Uniform Guidelines on Employee Selection Procedures. This legislation establishes clear criteria for government employers to consider during the screening process when evaluating a person’s prior criminal record, which will better protect government employers from claims of discrimination under Title VII.

SB 198 now heads to the Senate floor.

This legislation is a win-win. It makes us safer, strengthens our economy, better ensures that Alabamians are judged on their merit, not their mistakes, and protects government employers.