Volume 85, No. 4, Summer 2013

The Kobayashi Maru Of Ex-Offender Employment: Rewriting The Rules And Thinking Outside Current “Ban The Box” Legislation

Philadelphia recently joined a series of states and municipalities in passing what has become known as “Ban the Box” legislation. The “Box” in “Ban the Box” refers to the commonly used box on job application forms that asks applicants whether they have a prior criminal record. Generally, these Ban the Box laws impose restrictions on employer inquiries into criminal histories by limiting: (1) what can be asked of prospective employees prior to their hire, (2) when the inquiries can be made, and (3) how far back into the criminal history record the employer can delve. Most of these laws and ordinances are limited to public employers, but some impact private employers as well.

The primary rationale for Ban the Box legislation is to prevent criminal recidivism by increasing employment opportunities for ex-offenders. Extensive research shows a relationship between unemployment and recidivism. Generally, an employed person with a criminal record is less likely to reoffend than an unemployed person with a criminal record. Approximately 7.5% of the U.S. adult population, or sixteen million people, are either felons or ex-felons. Extensive research shows a relationship between unemployment and recidivism. Generally, an employed person with a criminal record is less likely to reoffend than an unemployed person with a criminal record. But, studies show that employers are less likely to hire ex-offenders. Ban the Box legislation is therefore intended to aid in reducing recidivism rates by reducing the employment barriers that confront ex-offenders; by limiting an employer’s access to a prospective employee’s criminal background, employers will be less likely to discriminate against convicted criminals, thereby reducing criminal recidivism.

In the majority of jurisdictions, however, negligent hiring is a cause of action that holds employers liable for hiring persons who the employer knew or should have known would create a foreseeable risk of injury to others. Generally, the employer is negligent if the employer should have screened applicants more scrupulously and did not, or if the employer failed to respond to actual or constructive knowledge of the facts related to the heightened risk of harm. Because of a belief that ex-offenders are more likely to commit crime, employers may end up discriminating against ex-offenders for fear of being exposed to liability under negligent hiring law.

With the passage of Ban the Box statutes and their restrictions on employer criminal background checks, however, legislatures across the country are now voicing an aversion to employers performing criminal background checks on prospective employees. Thus, employers are placed in a no-win situation: the common law encourages employers to conduct background checks on prospective employees to mitigate any foreseeable risk of injury, but with the passage of Ban the Box legislation, legislatures are hampering the background checks that employers can conduct. The result is a “legal minefield” in which employers face liability for not only refusing to hire ex-offenders, but also for hiring ex-offenders who later recidivate.

This Comment will seek to marry the divergent rationales behind Ban the Box legislation and negligent hiring law.

READ ARTICLE….Garcia – 85 – L – Rev – 921