In the current economy, finding a job is a challenge, and it’s even tougher for those with a criminal record. Many job applications ask job seekers to check a box if they have a criminal record. D.C. recently moved legislation forward requiring employers to hold off asking the question until later in the hiring process. But some in the business community say “banning the box” could have unintended consequences. We explore the issues.
- Harry Wingo President and CEO, DC Chamber of Commerce
- Nancy La Vigne Director, Justice Policy Center, Urban Institute
- Charles Thornton Director, DC Office on Returning Citizen Affairs
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, African immigrants in our region try new strategies to engage in local politics. But first, it's tough finding a job in this economy, and it's an even bigger challenge if you've been to prison. Around 70 million American adults have criminal records, and many employment applications ask job seekers whether they've got a criminal record.
MR. KOJO NNAMDIAnd those candidates often go no farther once that box is checked. Many cities and states have passed legislation to ban the box, requiring employers to hold off on asking the question until later in the hiring process. The D.C. Council recently moved legislation forward that would ban the box, but some in the business community are concerned about the final form that law will take, and what it means for employers. Joining us to discuss it is Nancy La Vigne, Director of the Justice Policy Center at the Urban Institute. Nancy La Vigne, thank you for joining us.
MS. NANCY LA VIGNEIt's my pleasure to be here.
NNAMDIAlso in studio with us is Charles Thornton. He is the Director of the D.C. Office On Returning Citizens Affairs. Charles Thornton, thank you for joining us.
MR. CHARLES THORNTONThank you for having me.
NNAMDIJoining us by phone will be Harry Wingo, the President and CEO of the D.C. Chamber of Commerce. He is on his way. He may join us when he actually gets to the studio. But I'll start with you Charles. Some 10 percent of the District's population has a criminal record, and eight thousand people will come home from prison this year. What are some of the hurdles to re-entering society, and what are the odds of them finding jobs?
THORNTONWell in terms of hurdles, you have, you know, educational hurdles. You have, definitely, the stigma that's attached to felony convictions and people that have been incarcerated. You also have digital hurdles with men and women who are returning, unable to attach resumes to files and send them out to employers. And then the whole stigma that goes along with, you know, having a felony background is one of the biggest hurdles.
NNAMDI800-433-8850 is the number to call if you have questions or comments. How would you suggest helping former prisoners to overcome discrimination in hiring? 800-433-8850. You can send email to email@example.com or send us a tweet @kojoshow. Nancy La Vigne, what does research tell us about the link between recidivism and employment and about the challenges faced by those re-entering society.
VIGNEWell, Mr. Thornton already described the challenges very well. In terms of the link, it's perhaps an obvious one, and that is that people who secure jobs after they're released from prison are much more likely to stay crime free. And so they're less likely to end up to return to prison.
NNAMDIOne of the statistics that I found a little bit surprising is that two thirds of people who are incarcerated held jobs before they went to prison.
VIGNEThat's exactly right. And those are legal jobs, jobs that are on the books. So, probably many others have jobs through family and friends and were informal contacts. You know, I think that's an important myth-busting fact that people need to be aware of. And it's also an asset that many formerly incarcerated people bring to the table when they seek jobs on the outside. And that is going back to former employers who are willing to take a chance on them and ignore the box entirely.
NNAMDICharles, as a slighter aside, a lot of people use the term ex-offender, but you do not. Why not?
THORNTONBecause it carries a stigma and it's, you know, the community, the returning citizen community, the men and women that are returning from incarceration, prefer the term returning citizen. When you talk about ex-convicts, ex-offenders -- those are, those terms are just, in a lot of cases, you know, they terms that, you know, has a very, a stigma that is hard to get over. When people look at you based on what you've done, not the fact that you're a citizen. Citizenship is men and women who come home and get back in the mainstream, but when you're looked at as being come home as a felon, as an ex-convict, this is a very derogatory term.
NNAMDIYou're being judged by your past rather than your present.
NNAMDIJurisdictions around the country have, in the past few years, been addressing one hurdle to employment. It's known as the ban the box legislation. Can you explain what that means and what forms it can take?
THORNTONAbsolutely. So, as you mentioned, two thirds of the people that are returning come back with a strong, in some cases, a strong employment backgrounds. But when you apply for a job, and there's a question that have you ever been convicted of a felony that's on an application, generally what happens is when you check that box, your application is really not considered. So, what this legislation does is give a person, gives an individual who's returning from incarceration a fair chance, if you will, to sit down and get interviewed on, you know, on their skill set as opposed to their application being tossed in the trash.
NNAMDINancy, there are a lot of misconceptions about ban the box legislation. Can you talk a little bit about what it is not?
VIGNEWell, I think the biggest misperception is that there will not be a criminal background check conducted on candidates that are ultimately hired. And that is not the case. The vast majority of employers do indeed conduct background checks, even in jurisdictions that have ban the box legislation.
NNAMDIThe District has ban the box legislation in place for government jobs, but the D.C. Council moved legislation forward last week, officially known as the Fair Criminal Record Screening Amendment Act of 2014 for all employers. Can you talk about that?
VIGNEWell, it just opens up more opportunities for people with records to be able to secure employment. So, now they can look at the vast array of jobs. Many folks with records or people returning from prison are looking for lower skill jobs that might not be representative in city employment. So, that's -- just it provides more opportunity.
NNAMDIWith no ban the box legislation, what are the rules around how and when private employers can request a background check or consider an employee's criminal record? Either Charles or Nancy.
THORNTONWell, one of the things, with faulty legislation, what we've found is that, you know, there are employers who put out information that they will not even consider a felon. Period. And neither in the private industry. So, you know, with this legislation, it will, you know, we know that it will at least get a person to sit down and interview. So, you know, when you look at it from that standpoint, you know, when there are employers who have, you know, as part of their policy, that we will not hire felons, that's just discriminating against people. Not based on their merit, their skill or what they can bring to the company.
THORNTONJust by the mere fact that they have a criminal past, which they have served their time for.
VIGNEAnd you don't really know the nature of the box being checked, what that really means. You don't know if it was a conviction that happened last year, or 10 years ago. You don't know whether it was a non-violent or a violent crime. There's really no opportunity to learn that, and so employers, by default, will just assume that it's the worst case scenario and reject that application.
NNAMDIWe're taking your calls at 800-433-8850. If you have called, stay on the line. We will get to your calls. You can also send email to firstname.lastname@example.org. Do you think background checks should wait until a first interview, or after a job offer is made? 800-433-8850. The business community has concerns about this legislation, and joining us in studio is Harry Wingo. He is the President and CEO of The D.C. Chamber of Commerce. Thank you for joining us.
MR. HARRY WINGOThank you, Kojo. It's great to be here.
NNAMDIWhat are some of the concerns that the Chamber has about the ban the box legislation being debated by the Council?
WINGOKojo, first, we want to say that we want returning citizens to find a place in the community, and that definitely includes getting gainful employment and growing their careers. Our concern, however, is that this is being done by legislation and there are some really -- the biggest concern is that by waiting until you have an offer, a conditional offer made, that really ties the hands of employers. And our concern is that this will really have a negative impact on how easy it is to do business in the city. Previously, coming out of Tommy Wells', his committee, we did not object.
WINGOWe actually saw a way to support having criminal records looked at after the interview phase. As Nancy mentioned, there are different types of considerations. For example, what time of crime? How much time since the person has been incarcerated, if there was prison time involved? And so, that's appropriate. We don't think that you should throw out peoples' resumes. You know, as Charles said, someone served their time, even for felonies. And people should have that opportunity to be in front of an employer and make their case.
WINGOBut our biggest concern, first, is the timing. To wait until you have a conditional offer, because then there's other candidates who may go on to other things, and you may have missed the opportunity to get someone who would not have been subsequently disqualified. But also, there are two parts, and this is going to come up again in a couple of days for a second reading. So, this will be before the Council, before recess in July. And, but the other parts are, what is really meant by the legitimate, quote, legitimate business reasons that would allow an offer to be rescinded.
WINGOAnd then the third part is having to send a written explanation as to why you rescinded an offer after the conditional offer was made. So, those are our concerns.
NNAMDISo, the questions really have to do with the timing here. The point, at which, the individual should be asked the question. It takes us a little bit into the weeds of this legislation, but, and I think that's what some of our callers would like to address. So, stay on the line. We're gonna get to you, but I want to talk to both Charles and Nancy first about what you feel about where this should occur in the process.
THORNTONWell, you know, as...
NNAMDI'Cause everybody seems to be in agreement that this legislation is appropriate, but...
THORNTONWhat the government does, okay, and this is part of the Returning Citizen Employment Inclusion Act, is that when an offer is made, then the background check is done. So, you know, I think any legislation, you know, I'm not a legislator, but I do feel as though it's something we found that works for the government is the law in the government council proved that. It has not had any bad effects, in terms of government, so I'm not understanding why...
NNAMDIWe're gonna get to that in a second. Nancy, same question to you. Let's take the proposition Charles has just offered that there should be no discussion of this until after the offer is made. It seems to me that the question that Harry Wingo is raising is if after the offer is made, the question comes up, the individual is denied employment, then he has to get, in writing, as to why he was denied employment, and an indication of why this would interfere, or what this -- what relationship does this have to the job at hand?
VIGNEWell, I certainly understand the spirit of that legislation, but -- and I really shouldn't weigh in on any this, because, just to be clear, I'm a researcher and we've not researched the difference between...
NNAMDIYou don't weigh in if you don't have to.
VIGNE...you know, when and how ban the box is implemented. I think that reasonable people can disagree on this point.
NNAMDIClearly. So let's go to Perry in Washington, D.C. Perry, you're on the air. Go ahead, please. Hi, Perry. Are you there?
PERRYYes, I am. Yes, I am. Thank you, Kojo, and to your guests. I wanted to ask, you know, the panel about the reality that our city often -- and why our city has in place this -- the Ban the Box. And I'm glad (unintelligible). I'm one of those who is denied unemployment, 190 applications in private and into the government sector, and I was made an offer by the city. Now, why's this? The Human Rights Commission (unintelligible) denied me employment based on a past conviction that was -- it was old. But it was -- the conviction was not related to the job that the city was posting.
PERRYAnd so I went through the process. They gave me my assignment, showed me everything, and then we had to go back through the whole process of the background check and like. But -- and so when the city denied me employment, with Ban the Box in place, I complained to the Human Rights Commission. The Human Rights Commission of course did their investigation and found that it was wrongfully -- I was wrongfully denied employment by the city with my qualifications and such.
NNAMDIWell, did you get the job?
PERRYI did not get the job. I was denied the job. Now, the Human Rights Commission went back and told the city or remanded it. They said the city needs to, I guess, do what you're supposed to do. But the city still didn't. I went to the City Council and laid it on the desk of City Council, you know, and here -- and you know what our Council said? Oh, yeah, we passed that legislation. But it's a doggone shame that we're not following the law. That's it. And so what I said...
NNAMDIWhat our caller seems to be saying is that there is no enforcement procedure even at the city level, Charles Thornton.
THORNTONWell, from, you know, and I can't get into, you know, individual cases, but...
THORNTON...it's the law. So from, you know, how it's being enforced, is, you know, a little above my head, if you will. But I can say that it is the law and that the Human -- I don't know if it's through the Human Rights Commission or how that law is enforced. But I can say that it is the law. And I can say that several people have been hired as a direct result of that law.
NNAMDIHarry Wingo, one of your concerns is the effect on businesses in the District and unintended consequences. You point to Baltimore which recently passed legislation requiring employers to hold off until after a conditional job offer has been made. What do you see as the problem with making the job offer and then making a decision to deny a person employment based on that person's criminal record?
WINGOThanks, Kojo. The problem goes to the bigger issue, which is businesses -- it's tough to thrive. I'm excited because we're creating conditions where it's getting even better. We're having a lot of energy in the city on the business community. But to try and legislate what businesses can do and to tie their hands on very nuanced decisions, on who's going to be best for the team, is bad for business outright. And I wanted to clarify, we were compromising on even the interview issue. We think we could see the benefits of getting rid of just the box on the employment form.
WINGOThere's a lot of that. But D.C. already is going far past -- or the Ban the Box legislation hasn't happened everywhere around the country. That said, the concern with the timing is that you have not only folks who you can't hire and you have to wait till that part of it. You have also the risk of litigation. And Title VII, for example, in the hearing -- I encourage everyone to look at the record -- D.C. government allowed, the Council has that record there.
WINGOIn the discussion, there was concern that by listing and creating a more of a record, you have the danger of having Title VII federal lawsuits brought which go to attorney's fees, even though at this point, the legislation has fees that can be at the highest, I think, $5,000 per a person who had something rescinded and they brought a claim. But if you pull in other things because of the uncertainty about the list of legitimate business causes, that would be a problem. So we're really concerned about the cost, suits that could be brought, and this really souring the business conditions in the city so that people decide, just forget about it, I'm not going to come to D.C.
NNAMDIHere is Darnell in Washington, D.C. Darnell, it's your turn.
DARNELLHow you doing? Thank you for having me on. I'm a student with (unintelligible) and also a volunteer with (unintelligible). Now, my question is, why can't we follow the Baltimore Bill? We need private rights of action or payback wages (unintelligible)...
NNAMDIWhat does that mean? I don't know what private right of action means.
DARNELLIt's -- well, private right of action is actually where the employer who's been denied a job can actually sue their employee and for wrongfully discriminating them for the job.
NNAMDIIs that included in the D.C. legislation as far as you know, Harry Wingo?
WINGOKojo, we're pleased to see that the private right of action was taken out of the legislation at this point, so which...
NNAMDIExplain again what that means. That means that the employee can -- the employee who was denied a job can bring a lawsuit regardless of what the explanation was?
WINGOThat's right, Kojo. The -- well, not regardless, but that they could go to a lawyer, and they would have the right to sue as opposed to as it stands now to say that the city would bring a claim. But this is one of our concerns. This is the problem with doing any of this legislation. In the first instance is that you open up businesses to uncertainty, potential lawsuits. It's better for the business community.
WINGOFor example, I am actually inviting the entire city, please give us nominations for inspiring stories about returning citizens who have either started a business, who are -- or thrived in the business community. We're going to make an announcement very soon saying that at our gala on Oct. 25, I would love to recognize that inspiring story of returning citizens. There's any number of ways that we can address this. But the problem is to open us up to lawsuits, to uncertainty, that's going to sour the business environment.
NNAMDINancy, Target, the major retail chain, recently decided not to ask about criminal backgrounds at their stores. Why was that significant?
VIGNEWell, Target is a major national corporation. The impetus behind that decision was prompted by the fact that its home state where its headquartered, the state of Minnesota, passed legislation that was enacted in 2014 requiring all business to Ban the Box. What Target did was go above and beyond that. So they decided to implement that policy in all their stores across the country.
NNAMDIOK. On to Marina in Washington, D.C. Marina, you're on the air. Go ahead, please. And it's my understanding that this is Marina Streznewski.
MARINA STREZNEWSKISo good to talk to you again, Kojo.
NNAMDIMarina's the -- from the DC Jobs Council Employment Justice Center that was involved in the Ban the Box Bill. Go ahead, please, Marina.
STREZNEWSKIYeah. The DC Jobs Council is spearheading the D.C. Ban the Box Coalition which has gotten this legislation this far, and we're hoping to get it to a point where it passes second reading and then is signed by the mayor. Couple of statistics I wanted to point out. According to the Society for Human Resource Management, employers who use Ban the Box nationwide -- this is a percentage nation -- of that, 64 percent already wait until after a conditional offer to conduct a background check. So that's almost two-thirds, so -- question why it's such an issue for the business community when two-thirds of employers already wait until after...
NNAMDIAllow me to have Harry respond to that question. If it looks like this is the direction that most employers are headed in, Harry Wingo, would that help address the competitiveness concerns that you raised?
WINGOUnfortunately, it wouldn't. Marina, it's great. I'm aware of the SHRM studies. There are also ones from, I think, the previous year that showed that many more do. So these practices are changing. And it's also about flexibility, whether you're forced to. And there's no denying that there's one-third from that particular study -- you'd have to look at the numbers and go into those details.
WINGOBut to tie the hands of businesses -- and also there's case of folks who have -- need security clearances, or you have vulnerable populations, say, if you're serving children or the elderly. And you have to fit the person to the job. And so there's any number of reasons why. And some businesses don't want to do those studies. They cost money. It's really about not giving businesses flexibility that we're concerned.
THORNTONYes. There in the District law, there are -- we are, you know, where children is involved and seniors that are involved, you know, there are provisions that allow a check to go prior to that. But the whole spirit of this is to get men and women back into employment. And my -- I will say to you that, if the goal is to get the best employer, to get the best employee that you can get, then what's the issue with sitting down, interviewing, making a selection, and then doing a background check? 'Cause, again, the goal is to get the best employee you can get.
NNAMDIIf you were a bank and the background check says that the conviction that this person had was for embezzlement on a previous job, what is there in the law that would allow the employer to say, well, no, this would not be a right fit for our organization?
THORNTON'Cause there's a rational relationship to the crime that you committed.
NNAMDIOK. Marina, is there something else you wanted to add?
STREZNEWSKII wanted to point out about the seven factors in the Equal Employment Opportunity Commission guidance on hiring returning citizens. And they have to do with the length of time that -- since the offense, what the offense was, the particular relationship, so that there is no reason that a bank would have to hire somebody with a conviction for credit card theft. In addition, it says explicitly in the bill that nothing in the Fair Criminal Records Screening Act of 2014 will supersede any of the federal or district laws that are already in place. And those laws protect vulnerable populations, like children and senior citizens.
NNAMDIMarina, what do you think about the argument that's been made that it exposes employers to lawsuits because, once that offer is made, if the individual does not feel that he or she was treated fairly, they can either file a lawsuit or take action through the city?
STREZNEWSKISo -- well, the -- that's kind of the point of the law, is that there is an enforcement mechanism so that, in the case of the District, the complainant goes to the Office of Human Rights. The Office of Human Rights reviews and the facts -- and this is where the written statement of denial benefits both the complainant and the employer. What this does -- the entire purpose of this law is to get employers to consider individuals as individuals, not as someone...
NNAMDIOK. We're running out of time very quickly. Harry Wingo, you get the last comment.
WINGOI think it's about character and being able to assess the right person. And we absolutely should bring together communities and returning citizens to have the opportunity. But I think, at the interview phase, which we've compromised on, that's a better time to do it. And we don't want to not -- or have the city lose jobs. And then we're even in worse place to help returning citizens.
NNAMDIWell, as you pointed out, the Council is going to be addressing this issue again. So it's clearly not over. Harry Wingo is the president and CEO of the DC Chamber of Commerce. Thank you for joining us.
WINGOThank you, Kojo.
NNAMDICharles Johnson (sic) is the director of the D.C. Office on Returning Citizens' Affairs. Charles Thornton, thank you for joining us.
THORNTONThank you, sir.
NNAMDIAnd Nancy La Vigne is the director of the Justice Policy Center at the Urban Institute. Thank you for joining us.
VIGNEThank you, Kojo.
NNAMDIWe're going to take a short break. When we come back, African immigrants in our region trying new strategies to engage in local politics. I'm Kojo Nnamdi.