Ban The Box

published June 24, 2023

What does the law say regarding protection for potential employees with arrest records or criminal background? Are potential employees or applicants protected? City & County of San Francisco Office of Labor Standards Enforcement Sect. 4904 (a) (c) (j) states, It shall be unlawful for any Employer to engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek employment in the City, and that expresses, directly or indirectly, that any person with an Arrest or Conviction will not be considered for employment or may not apply for employment. For purposes of this subsection (j), engaging in a communication includes but is not limited to making a verbal statement or producing or disseminating any solicitation, advisement, or signage. The Employer shall not require applicants or potential applicants for employment, or employees, to disclose, and shall not inquire into or discuss, their Conviction History or an Unresolved Arrest until either after the first live interview with the person (via telephone, videoconferencing, use of other technology, or in person) or, at the Employer’s discretion, after a conditional offer of employment. The Employer may not itself conduct or obtain from a third party a Background Check until either after the first live interview with the person or after a conditional offer of employment (c).

How willing are employers to hire formerly incarcerated people? According to Georgetown University and affiliates, employers most likely to formerly incarcerated people were those in the manufacturing, construction, and transportation industries. Researchers asked employers whether or not they were willing to hire those newly released from prison and without work experience, and whether their willingness depended in part on the offense committed. The responses were in some ways predictable. Employers were strongly averse to hiring people imprisoned for violent offenses (90 percent would be unwilling to hire such individuals), and not enthusiastic about hiring those recently released without work experience (only 35 percent of employers would offer a job to someone in this category).

They were much more relaxed about people convicted of property or drug charges (almost half would be willing to hire someone convicted of a drug offense) suggesting that the potential employer demand for people convicted of non-violent offenses may be greater than previously thought. This is a mildly encouraging finding considering that over the 1990s, the most dramatic rise in the prison population was driven by increases in drug-related offenses, disproportionately involving young black men.

Criminal background checks are one mechanism through which an employer have access information about the criminal histories of applicants, and constituted an indirect means of gauging an employer’s aversion to hiring ex-offenders. Between 1992–94 and 2001, the proportion of employers claiming that they always made a criminal background check rose from 32 to 44 percent, and the proportion who said they never checked fell from 51 to 38 in the private market over the 1990s.

Nearly 50 percent of Los Angeles employers in our 2001 survey used a private service to check criminal backgrounds rather than a public criminal justice agency.
That fact in itself raises questions. How accurate and complete is the information provided by these service? And does the ready access of such information to employers necessarily work to the disadvantage of the applicant as advocates for formerly incarcerated people have claimed? Is it possible that the provision of more information would actually increase the willingness to hire formerly incarcerated people and diminish the likelihood of statistical discrimination based on race or status? Indeed, some organizations that act as labor market intermediaries for formerly incarcerated people favor the provision of such information to employers, on precisely those grounds.

Survey suggests that employers are much less averse to hiring people convicted of certain kinds of offenses than of others and that they take post-prison work experience into account in hiring decisions. Thus there may be potential returns to public policies that provide transitional jobs to those leaving prison. And because so many employers now check backgrounds and refuse on legal grounds to hire formerly incarcerated or convicted people, review of these legal barriers, particularly of laws that prevent hiring into specific occupations and industries, may be in order.

Written by Comelia Johnson