Setting the record straight on "Ban the Box"

Photo by John Jordan

A recent op-ed published on TribTalk by Austin criminal defense attorney Karen Gross advocated for the enactment of “ban the box” regulations in Texas. For those unfamiliar, banning the box refers to the removal of any questions regarding a prospective employee’s criminal history on initial job applications and only inquiring about such information later on in the hiring process.

Ms. Gross' column alludes to an interview I did with NPR Austin in which I made the case that banning the box and similar fair-chance hiring policies should not be forced on the private sector by government law and claims that the Texas Public Policy Foundation is against “ban the box” because it will somehow lead to businesses having to foot the bill for background checks.

The argument is without merit; it was never said. Because Ms. Gross' column mischaracterized our position on banning the box, it is important to get clarify our actual position.

Removing questions about criminal history on job applications is a policy designed to allow individuals with a previous criminal record a better chance at obtaining employment. By allowing an ex-offender the opportunity to be initially judged exclusively on their merits without their criminal history, the theory goes that this will improve the applicant’s chances of obtaining employment. However, this theory has not been verified in the private sector and has only increased ex-offender employment for public entities — an area where the Texas Public Policy Foundation supports ban the box legislation.

It is indisputable that proper housing and vocations are paramount in successful re-entry outcomes. However, we must be careful how we accomplish this goal. Banning the box, when implemented by the government on government employment is a proper use of government discretion. Government entities should be able to decide how to handle their own human resources departments. The same goes for private employers who implement such policies on their own terms — ones that work for their specific organizations.

However, statutorily mandating ban-the-box policies for private entities creates several unintended consequences for their owners. Many such statutes currently enacted contain criminal penalties for violators. Even further, an examination of other ban the box laws does not show a "specific intent" requirement to be held criminally liable — meaning that a small business owner can obtain their own criminal record without ever meaning to violate the pertinent laws. This also opens up small businesses to costly and reputation-damaging civil litigation.

These kinds of regulations will require businesses to bear the cost of changing their hiring polices to prevent civil and criminal liability, taking money out of their bottom line and thus removing money that could be used for new hires, investment and innovation, among other things.

There are better alternatives to banning the box that will go much further than delaying the time an employer can see your background. Record sealing, or “nondisclosure,” as it is called in Texas, allows for the sealing of a criminal record if the individual stays crime free for a certain amount of time after conviction while giving prosecutorial notification and judicial discretion.

If the record is sealed, the person is legally allowed to state they were not convicted of the crime for employment, housing, and licensing purposes, but sensitive fields like health care, education, finance, and law enforcement still have access to the record. This places the responsibility on the individual, instead of the employer, to show society he or she is ready to live a law-abiding life.

Nondisclosure is not, as Ms. Gross' column erroneously stated, reserved for individuals who received deferred adjudication. This past legislation session, Senate Bill 1902 was signed into law allowing for convicted misdemeanants an opportunity for a sealed record and a second chance.

Incentivizing legislation such as landlord and employer indemnification allows for the hiring and housing of ex-offenders without the risk of litigation. These are solutions that help ex-offenders but don’t punish or overburden private enterprise.

Disclosure: Right on Crime is part of the Texas Public Policy Foundation, which has been a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Greg Glod

Policy analyst, Right on Crime