The case for uniform ban-the-box laws
| Pages | 279-284 |
| Date | 13 November 2017 |
| DOI | https://doi.org/10.1108/SHR-08-2017-0058 |
| Published date | 13 November 2017 |
| Author | Robert S. Nichols,Amber K. Dodds |
| Subject Matter | HR & organizational behaviour,Employee behaviour |
The case for uniform ban-the-box laws
Robert S. Nichols and Amber K. Dodds
Robert S. Nichols is
based at the Department
of Labor and
Employment, Bracewell
LLP, Houston, Texas,
USA.
Amber K. Dodds is
based at the Department
of Labor and
Employment, Bracewell
and Giuliani LLP, San
Antonio, Texas, USA.
Abstract
Purpose –The purpose of this paper is to assess the public policy benefits of ban-the-box laws, the
administrative burden for employers created by disparate approaches to these laws among various
states and cities and the value of adopting a federal ban-the-box law with a preemptive effect.
Design/methodology/approach –The paper uses a descriptive research method that examines
statistical data regarding the recidivism and sustained employment and examples of states’ laws
regarding restrictions or requirements of when criminal history inquiries can be made during the hiring
process, notice requirements related to use of criminal history information and limitations on
employment decisions based on criminal history information.
Findings –The paper finds that, given the public policy interests at stake and the relationship observed
between recidivism and sustained employment, it is difficult to argue that states and local ban-the-box
requirements are not rational and well-intentioned. However, a federal ban-the-box law with preemptive
effect is likely the only viable solution for employers overburdened by this disparate approach to
ban-the-box.
Originality/value –This paper provides an examination of why a federal ban-the-box law with
preemptive effect is an attractive alternative to the current disparate approach to regulating criminal
history inquiries by different states and local governments.
Keywords Employment, Recidivism, Criminal history, Ban-the-box, Fair chance laws,
Multistate employers
Paper type Viewpoint
Statistical data confirm that obtaining employment is crucial to minimize recidivism
for persons with criminal records. Ban-the-box laws represent a legitimate tool for
enhancing employment opportunities for the substantial segment of the available
American workforce with a criminal history.
The pattern that has developed, however, of ban-the-box provisions on a state and local
level with widely disparate substantive and procedural requirements creates a daunting
administrative burden for human resource professionals – particularly for multistate
employers. A uniform standard for ban-the-box requirements applicable throughout the
USA would allow for the intended public policy interests to be effectively served without
causing employers to face the significant costs associated with a patchwork of standards
across different states and localities.
The importance of employment to avoid recidivism
Criminal history is an obstacle to employment
According to the US Department of Justice’s Bureau of Justice Statistics (BJC), at of the
end of 2012, just over 100 million individual offenders were in the criminal history files
of the state criminal history repositories. www.ncjrs.gov/pdffiles1/bjs/grants/244563.
pdf. At the same time, the digitization of criminal history data has made it more
accessible to employers.
The net result has been that an increasingly significant percentage of Americans face
obstacles to employment based on a past conviction, deferred adjudication or other
DOI 10.1108/SHR-08-2017-0058 VOL. 16 NO. 6 2017, pp. 279-284, © Emerald Publishing Limited, ISSN 1475-4398 STRATEGIC HR REVIEW PAGE 279
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