Should a Jail Record Be an Employer’s First Impression?
The effects of mass incarceration continue after prisoners are freed. A prison record can be a bar to employment, housing and loans, creating devastating effects on many minority communities. The Obama administration has joined the “ban the box” movement, ordering federal agencies to eliminate job applications that have people check off whether they have a criminal history, and not asking about it until other qualifications have been reviewed. Twenty-one states and about 100 localities forbid this for either public agencies or private businesses. But critics say employers have the right to know of an applicant’s criminal record up front. What’s the best approach?
* effect = 영향; 결과, 효과/ incarceration = 투옥, 감금/ a bar to ~ = ~을 막는 장애/ devastating = 엄청난 손상을 가하는, 대단히 파괴적인/ minority = 소수(집단)/ movement = (사람들이 조직적으로 벌이는) 운동/ eliminate = 제가[삭제]하다, 없애다/ check off = ~에 체크 표시(✓)를 하다/ criminal history = 범죄경력/ qualifications(주로 pl) = 자질, 능력/ forbid = 금(지)하다/ public agency = 공공 기관/ critic = 비평가/ have a right (to do) = 권리가 있다/ applicant = 지원자/ up front = 솔직하게, 정직하게
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1. Keep Families and Communities Together
Formerly incarcerated people aren't asking for special privileges, only a fair chance and access to everything that our tax dollars support.
2. Ban the Box Ignores Employers’ Legitimate Concerns
An owner may spend weeks in the hiring process only to find a worker is disqualified because of his record. Lost time is lost income.
3. Employers Are Left Liable for Negligent-Hiring Lawsuits
If states enact ban the box laws, they should also prevent companies from being sued over the damage caused by an employee.
4. Employers Should Decide on Their Own to Ban the Box
It doesn’t make sense to reject an individual at the outset of the hiring process based on a past mistake, especially given the imperfections of the criminal justice system.
Sample Essay
Ban the Box Leaves Employers Liable for Negligent-Hiring Lawsuits
At the outset, it should be noted that “banning the box” — outlawing the box on employment applications an applicant checks if he has a criminal (usually felony) conviction, and requiring that any criminal screening be delayed, in some cases until after a conditional offer is accepted — is part of a larger movement to restrict employers’ freedom to consider a job applicant’s criminal conduct.
The National Employment Law Project states that “effective” hiring policies also “ensure” that employers evaluate “the age of the offense, the relationship of the individual’s record to the job duties and responsibilities, and evidence of rehabilitation." But the application of these highly subjective criteria in specific cases will inevitably be second guessed, creating new cases of business liability.
The National HIRE Network has proposed the creation of an independent commission to decide whether an ex-offender is fit for a job at a privately run business.
Ban the box in and of itself is burdensome, particularly for small and medium-sized firms lacking human resources staff. It’s also an ineffective tool, not least because it doesn’t address the risk of negligent-hiring litigation, which many businesses cite as the reason they won’t consider hiring ex-offenders in the first place. Negligent-hiring liability turns on whether the behavior of an ex-offender employee who harms a third party (think fraud or assault), was “foreseeable” — meaning the only certainty is that the employee’s criminal record will be plaintiff’s Exhibit 1.
While trying to push ex-offenders on job creators, Ban the Box groups downplay the risk. In a brief filed in Moran v. The Screening Pros., LLC., the East Bay Community Law Center, the American Civil Liberties Union of Southern California, the National Employment Law Project, and others assert that employers “overestimate the risk of their liability for negligent hiring”. Easy for them to say!
A few states have enacted negligent hiring tort reform, but the protections are weak. The exception is Texas, where the legislature, in 2013, enacted a straightforward ban on most negligent hiring lawsuits based on an employee’s criminal past.
States should follow Texas’s lead, but don’t expect Ban the Box advocates to laud Lone Star legislators. Addressing real business concerns is less sexy than portraying the issue as a civil rights crusade.
