Ban-the-box featured on PBS NewsHour

On June 17 the PBS NewsHour featured a debate over ban-the-box policies in hiring. Daryl Atkinson, an attorney with the Southern Coalition for Justice in Raleigh, North Carolina, presented the case in favor of eliminating threshold questions about criminal record on employment applications. Elizabeth Milito of the National Federal of Independent Business argued the other side, claiming that the costs of ban-the-box for a small business “can be pretty steep.”

In many instances, a small business returning a small contracting company, running a small convenience store needs to be able to abort the hiring process sooner rather than later. It is the business owner who is culling through the applications, setting up the interviews, bringing the individuals in.

And in certain instances, either by law, federal or state laws, they can’t hire individuals with certain convictions.

Responding to Atkinson’s counter that advocates are only seeking an individualized assessment of each candidate’s suitability, Milito suggested that employers unable to reject applicants on a categorical basis before the interview stage may later be the target of lawsuits by applicants rejected on the merits.

The exchange reveals the importance of understanding how most “don’t ask, tell later” schemes actually work in practice. Ms. Milito makes certain assumptions in this regard that are simply incorrect: most ban-the-box schemes do not require postponing inquiry until after an in-person interview, do not require an employer to give reasons for rejecting a candidate, and do not apply at all where the law disqualifies a person with a criminal record from consideration. While there is no doubt that some of these features would be desirable from a policy perspective, they are not part of even the most successful ban-the-box programs.

We reprint the transcript of the interview in full below. It can be watched here.

TRANSCRIPT

JUDY WOODRUFF: Now we turn to our occasional series on imprisonment and criminal justice in America.

Some Republicans and Democrats are uniting over reform ideas.

Tonight, in our Broken Justice series, William Brangham looks at a high-profile idea that centers around felons and their lives after prison.

WILLIAM BRANGHAM: The nation’s biggest city New York, just became the latest in a national movement to rewrite the hiring process and give convicted felons a better chance at landing a job.

Supporters gathered a few days ago as the New York City Council voted overwhelmingly to block employers from asking job applicants if they have a criminal history. The law is known as ban the box. It would do away with the question or box on job applications asking if a worker has served time in prison or had a record. The idea is spreading.

So far, 17 states across the country and more than 100 cities and counties have passed similar ban the box laws.

We get two different perspectives.

Daryl Atkinson is senior staff attorney at the Southern Coalition for Social Justice. And Elizabeth Milito is senior executive counsel for the National Federation of Independent Business.

Daryl Atkinson, I know this is not just a matter of public policy for you. This is very personal in your own particular story. Can you tell us a little bit about that?

DARYL ATKINSON, Senior Staff Attorney, Southern Coalition for Social Justice: Sure, William.

In 1996, I was convicted of a first-time nonviolent drug crime. I spent 40 months in prison in the Alabama Department of Corrections. I went into prison with a high school diploma. I came out with a high school diploma. Fortunately enough for me, I had a loving family that could provide me food, clothing and shelter.

And I have been able to achieve a certain degree of success. I have gotten my education. I’m licensed to practice law in Minnesota and North Carolina. I was honored at the White House as a Champion of Change in removing barriers for people with records.

But I don’t tell that story to highlight any exceptionable attributes about me. I believe that millions of people who cycle in and out of our criminal justice system can be successful as well if they have the necessary support.

So, we ban the box in both Durham City and Durham County in 2011 and in 2012. And we have seen the percentage of people hired who have criminal records go up every year without any increases in workplace theft or crime. None of these folks have been subsequently terminated because they committed a subsequent offense.

WILLIAM BRANGHAM: Beth Milito, what about this argument that, if you know someone has a criminal record, that the prejudice against that is just so great that, in fact, people who have done their time, served their sentence, that they should have a shot at getting a job, just like everybody else?

ELIZABETH MILITO, Senior Executive Counsel, National Federation of Independent Business: And, you know, these policies, there is a laudable goal behind them, but there is a cost.

And for small businesses, whom I represent at NFIB, the costs can be pretty steep. This is — as I say, it’s not a good policy in all businesses and all industries. And the one size fits all is very difficult.

In many instances, a small business returning a small contracting company, running a small convenience store needs to be able to abort the hiring process sooner rather than later. It is the business owner who is culling through the applications, setting up the interviews, bringing the individuals in

And in certain instances, either by law, federal or state laws, they can’t hire individuals with certain convictions.

WILLIAM BRANGHAM: Daryl, as you have gone around the country and talking to employers, how do you convince them? When they might say to you, look, if I’m hiring people for some kind of sensitive work, I might be putting people into people’s homes, that I have a duty to know whether or not I can trust this person’s actions, what do you say to those employers?

DARYL ATKINSON: So, I’m a dad. I have a 3-year-old. I drop my 3-year-old off at day care every single day.

Would I want to know or would I be concerned as a parent if one of her day care teachers had a past history of child abuse? I would. That would be concerning to me.

So, that particular position may not be suitable for someone with that criminal record history. What we’re encouraging employers to do, both large and small, are to do these individualized assessments, and not treat all crimes the same, because some crimes may not have any relevance to whether someone is suitable for a given position.

WILLIAM BRANGHAM: Well, Beth Milito, what about that point?

Would small businesses be OK with the idea that you don’t ask people about their criminal background check right away? You vet the candidates and then if you are about ready to make an offer, then you can check and see if it is relevant, as Daryl was saying? Would you guys support that idea?

ELIZABETH MILITO: I support vetting candidates, most certainly.

But the employer needs to have the information about criminal history during the interview. The fact that they didn’t raise that during the interview, whether there was a gap that maybe now a business owner is afraid to discuss because they can’t talk about criminal history until after they have made a conditional offer, is just kind of ludicrous for a small business owner.

And then some of the proposals too — and the New York City is one of them too — the business owner then actually has to provide, you know, a written reason as to why it is they didn’t hire somebody because of criminal conviction. That is just going to send people off to an attorney.

WILLIAM BRANGHAM: OK, we have got to leave it there.

Daryl Atkinson, Beth Milito, thank you both very much.

DARYL ATKINSON: Thank you.

ELIZABETH MILITO: Thank you.