Should your criminal history be on job applications? Lawmaker says no
After joining a gang as a teenager, Wayne McMahon spent 25 years in and out of California prisons. Hearing that his nephew was headed down the same road finally gave McMahon, at the age of 45, the motivation three years ago to start changing his life.
“You get to a certain age where you see that Mom and Dad were right most of the time,” he said.
Step by step, McMahon is transitioning back into society – leaving his gang, attending rehab and paying restitution for his crimes – but steady work has eluded him.
Despite looking for months, McMahon said he can only get side jobs taking care of people’s yards, maybe once or twice a week. He said employers never seem to get beyond his criminal record, which includes arrests for drugs, burglary and an attempted murder that he says was revenge against a man who raped his sister.
“Once they see you’ve been convicted of a felony, they say, ‘Don’t call us, we’ll call you,’ ” McMahon said. “You don’t get the opportunity to explain to them.”
California could soon make his search easier by eliminating the felony conviction box from job applications altogether.
Building on a 2013 law that prohibited public employers from asking about criminal history on the initial application, Assemblyman Kevin McCarty, D-Sacramento, has introduced a bill this session to expand the policy to private companies. Assembly Bill 1008 forbids inquiring about an applicant’s conviction record until they have received a conditional offer.
“This removes some of these arbitrary qualifiers,” McCarty said. “It does give people a chance to get their foot in the door.”
ONCE THEY SEE YOU’VE BEEN CONVICTED OF A FELONY, THEY SAY, ‘DON’T CALL US, WE’LL CALL YOU.’
The idea has taken off across the country in recent years: 25 states and more than 150 cities and counties now have “ban the box” laws in place, according to the National Employment Law Project. In nine states and 15 cities, including San Francisco and Los Angeles, the policy applies to private employers.
In 2015, then-President Barack Obama endorsed the policy, instructing federal agencies to remove questions about prior convictions from applications and urging companies to pledge to do the same.
But some remain skeptical of the approach. Several recent studies concluded that banning the box actually hurts many of those it is intended to help by increasing bias against black and Latino job applicants that employers may assume are more likely to have a criminal history.
“The problem of ‘ban the box’ is it doesn’t do anything to address employers’ concerns about hiring people with criminal records,” said Jennifer Doleac, an assistant professor at the University of Virginia’s Batten School of Leadership and Public Policy. “Hiding the information from them during the application process will put some of them in the position of simply trying to guess.”
Hawaii was the first state to prohibit employers from asking about criminal history in 1998, but an organized ban-the-box campaign would not emerge for more than half a decade.
In 2004, All of Us or None, a San Francisco-based organization of formerly incarcerated people, began pushing the San Francisco Board of Supervisors to remove the felony conviction question from the initial application for public sector jobs, around the same time that another group launched its own drive in Boston.
Those ultimately successful efforts formed the basis for a movement that gradually spread into other cities and states. All of Us or None first targeted local Bay Area governments, winning approval in East Palo Alto in 2006 and Alameda County in 2007, before moving into Southern California and connecting with activists in places like Florida and Georgia who took up the cause there.
25 STATES AND MORE THAN 150 CITIES AND COUNTIES NOW HAVE “BAN THE BOX” LAWS IN PLACE.
Lobbying by the group persuaded then-Gov. Arnold Schwarzenegger to issue an executive order in 2010 removing the conviction box from state job applications. The Legislature broadened that policy in 2013, passing a law that state and local agencies in California cannot ask about an applicant’s criminal background until their minimum qualifications for the position have already been established.
Manuel La Fontaine, who coordinates All of Us or None’s national ban-the-box campaign, said ex-offenders like himself are simply “asking for a fair chance to work.”
He was arrested at age 19 and served time from 1999 to 2003, though he declines to discuss for what because he feels it is not a reflection of who he is now. After getting out of prison at age 24, La Fontaine said he bought nice clothes and cut his hair to look for a job – something stable with benefits to get on his feet – but he couldn’t get hired anywhere. He eventually joined All of Us or None in 2008.
“We change through time,” he said. “Judge us based on our overall character, rather than one or two actions we did when we were younger.”
La Fontaine said society is often afraid of those who have been to prison, but “there should be a presumption of rehabilitation.”
“If I was incarcerated in 2001, why should I have trouble finding housing now?” he said. “Why should my wife, my son, my daughter be feeling the brunt of something when I’m supposed to have served my time?”
After laying the groundwork with public employment laws, All of Us or None has shifted its attention to private companies, where many former convicts seek work with entry-level jobs in construction or at retailers. First again in California to adopt a policy was San Francisco, which passed an ordinance in 2014 prohibiting employers from asking about criminal history before the first interview with an applicant.
The business community was involved in crafting the legislation from an early stage, according to Jim Lazarus, senior vice president of public policy at the San Francisco Chamber of Commerce. He said they secured exemptions for small businesses with fewer than 20 employees and certain jobs where a criminal background check is required, like working in a bank or around children.
JUDGE US BASED ON OUR OVERALL CHARACTER, RATHER THAN ONE OR TWO ACTIONS WE DID WHEN WE WERE YOUNGER.
Manuel La Fontaine, program manager at All of Us or None
The chamber also voiced concerns over an initial proposal to hold off on the background check until a tentative job offer had been made.
“It’s late in the process,” Lazarus said. “We convinced the authors that a midpoint in this makes more sense.”
That could be trouble for McCarty’s bill at the Capitol, which takes the more expansive approach. Lazarus said the chamber is still reviewing AB 1008. But, he added, they haven’t heard any complaints about the ordinance in San Francisco, where the “vast, vast majority of employers don’t even ask the question” about conviction history anymore.
Two studies released last summer cast doubt on the effectiveness of the strategy in helping formerly incarcerated people find work.
In one, authored by Amanda Y. Agan of Princeton University and Sonja B. Starr of the University of Michigan Law School, researchers submitted approximately 15,000 fictitious online job applications in New York City and New Jersey, before and after their ban-the-box laws took effect. They found that a 7 percent gap in callbacks between white and black applicants grew to 45 percent once employers could no longer ask about conviction history.
The other study, by Doleac and Benjamin Hansen of the University of Oregon, compared employment rates in jurisdictions that adopted ban-the-box policies with those that had not. For young black and Latino men without college degrees – those who are statistically more likely to have a recent conviction – employment dropped 5 percent and 3 percent, respectively. Where the law applied to private companies, there was a jump in employment for young white men.
“Employers do seem to use race as a proxy for criminality,” Doleac said. “If they have a white man and a black man, they’ll be more likely to call the white guy every time.”
IN A STUDY RELEASED LAST SUMMER, RESEARCHERS FOUND THAT EMPLOYMENT DROPPED ABOUT 5 PERCENT AMONG YOUNG BLACK MEN AND 3 PERCENT AMONG YOUNG LATINO MEN IN JURISDICTIONS WITH BAN-THE-BOX POLICIES.
Doleac said she hears several main concerns from employers about hiring ex-offenders: Having a criminal record is correlated with other characteristics that can make you a less productive employee, like mental illness or substance abuse. Those with a recent conviction are more likely to still be engaged in criminal activity. They are worried about getting sued for negligent hiring.
“Employers just want to hire someone who’s going to show up on time every day and do the job,” she said.
McCarty said he has seen the research, but he believes the arguments for banning the box far outweigh the downside: “That is an opinion, but that is a risk that the advocates and myself are willing to take.” La Fontaine, of All of Us or None, dismisses the studies as an effort to “undermine the work of formerly incarcerated people.”
McMahon continues to look for his first real job outside of prison. Last month, he connected with Associated Prison Ministries of California, a Sacramento-based organization that provides services like employment counseling for ex-offenders. It is run by Pastor James Carr, who is himself formerly incarcerated.
On a recent Friday, McMahon and Carr chatted about his job search and how banning the box would make it easier. Once he pays about $1,900 more in restitution, McMahon will be able to get his criminal record expunged.
He is now a manager at a sober living facility, and is being certified in drug and alcohol counseling, but his dream is to start his own landscaping business. McMahon said God will bless him when he’s ready.
“These days, I’m happy,” he said. “I don’t have everything right now, but I don’t have to look over my shoulder every day.”
As McMahon left the office, Carr handed him another job to check out, digging a route for a fiber optic cable system. The listing, Carr noted, said that only crimes substantially related to the position would be considered.