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Banning the Box Could Have Unintended Consequences

Brandon Grysko, Esq.

"Ban the box" is a social-justice campaign focused on giving convicted criminal offenders a better chance at obtaining gainful employment by prohibiting employers from asking about criminal history. But even ban-the-box advocates recognize an employer's right to know about an applicant's criminal history.

"The box" doesn't take context into consideration. Asking about criminal history, some argue, results in otherwise qualified candidates getting washed out without a fair chance. So advocates think that criminal-history questions should be asked later in the process - for example when an employer makes a conditional offer or during an interview.

All Michiganders should be concerned because regular employment is key to reducing recidivism. The movement, which seems liberal on its face, has actually gained traction with conservatives: Republican Governor Rick Snyder ordered state agencies to remove "the box" from state employment applications and from state occupational license applications.

Reducing recidivism and creating opportunities for ex-offenders are noble goals. Still, lawmakers may want to exercise caution in adopting ban-the-box legislation. The initiative is designed to help people convicted of crimes to find jobs. In Michigan, minority groups are incarcerated at a higher rate than non-minority groups. Although it might seem like the ban-the-box initiative would benefit job-seeking minority ex-convicts, there are unintended consequences to factor in.

In some markets, ban-the-box rules result in a lower probability of minority individuals getting jobs. Employers may use other information as a stand-in for criminal history, such as an applicant's race, income, or geographic location. In effect, ban-the-box initiatives actually increase racial disparity in employment.

Some employers see other problems: ex-offenders are more likely to have been violent or dishonest in the past, and about two-thirds of ex-convicts are re-arrested within three years. It's understandable that employers have questions about ban-the-box legislation. Is there negligent hiring liability if an ex-convict behaves badly at work? Is there liability for the employer who doesn't hire an ex-convict? Will a small, private employer be forced to waste time and money on the early stages of the hiring process, only to later discover an applicant is a poor fit?

Studies actually suggest that when employers have more information, minority-applicant hiring goes up. According to the Atlantic, black employment rates went up when employers utilized drug tests and criminal background checks. The left-wing ACLU of Michigan and the right-wing Mackinac Center actually agree that what ex-convicts really need is a change in employment practices and culture rather than just a legislatively mandated solution.

Regular employment for ex-convicts means less recidivism and lower unemployment. Those are benefits everyone can get on board with. However, voters and lawmakers considering banning the box should take a hard look at the unintended consequences and private business concerns first.

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