Expanding record sealing and negligent-hiring protections offer ex-offenders a better shot at a second chance than “ban the box”
Letting nonviolent former offenders petition to have their records sealed and protecting businesses from negligent-hiring lawsuits would do more to encourage hiring ex-offenders than “ban the box” alone.
Good criminal-justice policy not only enables rehabilitated ex-offenders to find work and provide for themselves and their families – it also doesn’t leave behind employers who are concerned about liability.
That’s where “ban the box” misses the mark. Illinois is among 21 states and over 100 cities throughout the country to implement ban-the-box policies, which prohibit employers from inquiring about a job applicant’s criminal history – often by asking the applicant to check a box on a form indicating whether the applicant has a criminal record – until after an interview or a job offer has been made.
This policy does little but delay the inevitable. Even though ban the box is well-intentioned and might even be a reasonable policy, it does have some drawbacks for employers. The National Federation of Independent Business has pointed out that small businesses don’t have human resources staff to easily comply with the law, and may waste time interviewing an applicant who later must be denied a job because of a disqualifying record. Employment experts also cite concerns about negligent-hiring and -retention litigation – civil lawsuits against an employer in the event a crime is committed by an employee on the job – as a reason many employers review criminal records when making decisions about job applicants.
To engage the business community on criminal-justice reform, lawmakers should take employers’ concerns seriously. Instead of ban the box, or in addition to a more business-friendly version of it, policymakers should consider record sealing and negligent-hiring liability reforms to help former offenders gain employment without putting businesses at risk.
Small businesses created two-thirds of all new private-sector jobs in 2014. But ban-the-box laws impose civil penalties and the risk of lawsuits to encourage hiring ex-offenders. Illinois law forbids employers with 15 or more employees from asking about records prior to an interview, and Chicago has an ordinance that applies to employers of any size – with fines of up to $1,000 for a violation. The rules add hiring-related financial and time costs that smaller businesses in particular may find burdensome.
But there are ways other ways to encourage businesses to give ex-offenders a second chance. One would be negligent-hiring reform. Fifty-two percent of businesses report conducting background checks specifically because of concerns about the risk of being sued if they hire a former offender who later commits an offense on the job.
Illinois should pass a law that limits these lawsuits to cases in which an employer knew of the conviction, the charge was directly related to the nature of the employee’s work, and the conduct that gave rise to the alleged injury is the basis for the lawsuit. Colorado’s reform, for example, restricts the use of an employee’s criminal background if the previous conviction has no relationship to the offense alleged in the current lawsuit – and only if the employee was convicted of this crime, rather than simply being arrested without formal charges having been filed.
Another helpful reform would be to expand record sealing for most nonviolent offenders. Sealing is a process by which a former offender can apply to have his or her record closed to most viewers, except for law enforcement agencies and employers in sensitive fields such as schools and financial institutions. This would remove the stigma of a record when an ex-offender applies for a job – one of the most significant barriers to employment for ex-offenders who have paid their debt to society and need to find work after serving their time.
For an ex-offender to have his or her record sealed, he or she must make it through an adversarial process in the courts. After the ex-offender files a petition with a judge, law enforcement officials are notified and given the chance to oppose sealing the record if they believe the ex-offender still poses a public safety risk. But if successful, the ex-offender would be able to compete for employment on a more equal footing with other applicants.
Finding employment is critical to former offenders returning to society and getting their lives back on track. If policymakers make this difficult, too many former offenders will continue to cycle in and out of Illinois’ corrections system, as 48 percent do today. Easing the transition to employment needs to be a priority for Illinois lawmakers in 2016 – and in a way that doesn’t make hiring harder for businesses. Sealing expansion and negligent-hiring reform can help achieve this.