‘Ban-the-box’ issue not so clear-cut

jacobsen_joel_BizOEarlier this month, the Journal reported on an effort to expand New Mexico’s “ban-the-box” legislation.

Current law prohibits the state, counties and municipalities from including a yes/no box about criminal convictions on an initial application for employment. Only after an applicant is selected as a finalist can the public employer ask whether he or she has ever been convicted of a crime.

The proposed bipartisan legislation would extend the prohibition to private employers, too. As one of its sponsors, Rep. Alonzo Baldonado, R-Los Lunas, told the Journal, “The idea is to give someone a fair shake who has truly changed their life and is headed in a better direction.” By delaying inquiry into criminal records, ban-the-box measures provide the reformed offender with the opportunity to make a good first impression, getting past that crucial initial screening.

The online magazine Aeon recently ran an article by an ex-addict named Marc Lewis who got clean in his 20s. He went to college, earned a doctorate in developmental psychology and taught neuroscience at universities in Canada and Europe while conducting important research into the nature of addiction, which he summarized in his piece. A career like that might easily have been derailed at the beginning by a felony drug conviction. Giving recovered addicts and genuinely rehabilitated criminals a second (or sometimes first) chance can only benefit society in the long run, allowing them to become financially self-sufficient while doing things that benefit others, whether advancing scientific knowledge or more humbly by adding to a company’s bottom line.

But is ban-the-box really an effective way to achieve that goal?

According to a recent paper from the National Employment Law Project (NELP), public employers have dramatically increased their hiring of people with criminal records following the enactment of ban-the-box legislation around the country. But, the report notes, the “vast majority” of all ban-the-box laws apply only to public employers. New Mexico would be moving into relatively uncharted waters if it extends the prohibition to private employers.

While the purpose of the law is to remove negative information from applications submitted by ex-offenders, it also has the effect of removing positive information from the initial applications of those with clean records. With respect to entry-level jobs, in particular, it’s always difficult enough for any given applicant to stand out from the crowd. It’s not self-evident why people with clean records should be prevented from leading with that positive fact about themselves.

Those with criminal records seeking employment in New Mexico face an additional heavy burden that has nothing to do with boxes on initial employment applications. A column from last June described the twin New Mexico torts of negligent hiring and negligent retention. In simplest terms, those torts hold that if an employer knows or should have known that an employee has a criminal history but chooses to hire (or refrain from firing) him or her anyway, then in some circumstances, the company can be liable for the worker’s future criminal acts. The key phrase is “should have known.” An employer cannot shield itself from tort liability by failing to discover the worker’s criminal history. Sometimes, indeed, tort law imposes on the company an affirmative duty to conduct a criminal background check.

In practical effect, the recognition of those torts in New Mexico’s courts means that an employer that hires someone with a criminal record takes on an added financial risk. The tort law gives employers a big financial reason to ask about criminal records, conduct an independent background check, and then, all else being even roughly equal, to choose the applicant with the clean record.

If expressed in terms of public policy regarding the hiring of rehabilitated offenders, the judicial branch is strongly opposed to giving them a second chance. Realistically, of course, our appellate judges weren’t thinking in those big-picture terms when they recognized the torts of negligent hiring and retention. Most likely, they were merely looking for some plausible mechanism to compensate the injured New Mexicans who brought those particular lawsuits. But decisions that have one effect within the highly artificial miniature world of the courtroom often have quite different effects when loosed on the wide world.

It’s not clear how the proposed legislation would be enforced, but presumably by lawsuit. Without protection from tort liability, then, the legislation would create a situation in which an employer runs the risk of being sued for discrimination if it asks about an applicant’s criminal history but runs the risk of being sued in tort if it fails to do so.

Unfortunately, running up legal fees in the name of a good cause isn’t always the same as advancing that cause. Lawsuits about the placement of boxes on application forms might be worthwhile if they ultimately wind up helping rehabilitated prisoners gain a toehold in the job market. But not if they benefit only the lawyers involved.

If the Legislature were to extend the ban-the-box law to private employers without simultaneously protecting them from tort liability for negligent hiring and retention, it would accomplish nothing of substance.

The NELP paper emphasizes that the ultimate goal of ban-the-box measures is to counteract “the unprecedented fallout from decades of mass incarceration.” If the underlying problem is that the United States locks up way too many people, making New Mexico employers jump through a prescribed set of hoops is, at best, an indirect attempt at a solution. It makes far more sense to address the problem itself, in a direct and meaningful way, than to reformat job applications in the hope of mitigating some of its remote effects.

Joel Jacobsen is an author and has recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com


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