Carl Crosby Lehmann, an employment lawyer at Gray Plant Mooty, spent hundreds of pro bono hours over the past decade working with business and civil rights groups to make it easier for felons to find employment after they are released from prison.
That work helped result in a recent law that limited employer liability for hiring offenders, and last year’s “ban the box” legislation that eliminates the use of the criminal-history box on employment applications.
Q: Why and when did employers add “the box” that precluded so many felons from being hired?
A: Questions like, “Have you ever been convicted of any crime other than a minor traffic offense?” have pretty much always been on employment applications.
The societal issue of the inability of ex-offenders to obtain employment has evolved in recent years because of the growth of the background-investigation industry. Background checks have become so quick and inexpensive that they are now standard practice for the majority of employers. … Most employers who perform criminal checks do them on applicants for any position.
While “the box” question on employment applications is different from criminal background checks, the two are interrelated. Ex-offenders know that a background check will be conducted to verify the answers they provide on the application.
The concern with the question being asked on employment applications is that it results in applicants becoming disqualified from consideration before an employer even takes the time to get to know the individuals and determine whether any previous criminal offenses should disqualify them from consideration.
Q: Why is “ban the box” a good thing?
A: Banning the box is good for employees because it gives ex-offenders an opportunity to have an introduction to the employer without being dismissed out of hand because of a previous conviction. Studies show that providing this opportunity opens doors for ex-offenders and increases their likelihood of obtaining employment.
Ban the box is good for business because, of the many options that could be taken to address this growing social issue, this is one that does not in any way limit the employer’s ability to make whatever hiring decision it deems best for its workplace. Employers can still ask if an applicant has a criminal history, just not in the application. Employers can still conduct background checks. And employers can still decide that an ex-offender’s past is incompatible or poses too much risk for the position that the employer is seeking to fill.
A few years ago I helped draft legislation that became law that prohibits evidence of an ex-offender’s prior convictions from being introduced in a negligent hiring case. Another benefit to employers is that many ex-offenders participate in training programs. These individuals know that their job opportunities are limited, and so they tend to be hard-working and loyal. They appreciate … a second chance.
Q: How did you get involved?
A: For about 10 years I’ve advocated for this. I identified this as an issue in which employers would need to get involved. With the background-check industry growing, we were on a collision course between employers needing to make sure they were making good hiring decisions and society’s need to provide opportunity to ex-offenders.
I’ve spoken a lot to groups … the Council on Crime and Justice and the Minnesota Department of Human Rights. The Minnesota Chamber of Commerce asked me to speak to their board a few years ago. They had opposed these initiatives. It wasn’t until it became clear that the law likely was going to pass that they got involved and helped craft provisions that were more palatable to their members.
Q: This doesn’t preclude background checks?
A: Businesses still and will ask applicants about criminal background and do checks. All this law does is give ex-offenders a chance to apply, maybe get a foot in the door for an interview before they are asked about any criminal background. There is less chance of recidivism when ex-offenders are working.
The U.S. Equal Employment Opportunity Commission issued guidance about one year ago … that applies to private employees. They suggest employers hiring ex-offenders need “an individualized assessment” as opposed to just a blanket ‘‘we don’t want any felons.”
The EEOC says employers should look at the nature of the crime, the job that the person is applying for and the amount of time that has lapsed since they were convicted or incarcerated to ensure that it’s an appropriate hire and balancing the need for employers to hire people.
Q: How will this change affect our economy?
A: Studies show that ex-offenders who are not able to obtain employment following incarceration have a far greater risk of recidivism. Given the costs of crime and incarceration, encouraging businesses to employ ex-offenders has a definite positive economic impact. Furthermore, of the legislative options that could have been foisted upon businesses, this seems to be one of the least intrusive. In Wisconsin, for example, ex-offenders are a protected class under the state’s human rights law. Minnesota employers are still able to obtain information about past criminal history and make an informed decision for their business about hiring an ex-offender.
Neal St. Anthony • 612-673-7144