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Ban the Box! The Campaign for Post-Prison Employment


Photo by Flickr (cc) user Waponi

It’s not even the crime that counts sometimes. Or the time in prison. It’s that little box on an application that asks you to reveal if you have a criminal history. Checking that box can mean the difference between failure and success. On this edition, the nationwide movement to ‘ban-the-box’, and make criminal histories less of a stigma.

Thanks to The Omnia Foundation for partial funding for this program.


Marilyn Austin-Smith, formerly incarcerated, and member of All of Us or None; Michelle Natividad Rodriguez, National Employment Law Project attorney; Mike Casey, Unite Here! Local 2 president; Mike Hannigan, Give Something Back company director; Donald Washington, Juan Filomeno, Shirley Hollis, formerly incarcerated; Lois Ahrens, Real Cost of Prisons Project prisoner advocate; Deval Patrick, governor of Massachusetts; Aaron Tanaka, Boston Workers Alliance executive director; Michael Corwin, private investigator; Julie Roberts, Northeastern University School of Law board of directors’ member.


Massachusetts Leads the Way in CORI Reform

In the United States, an estimated 65 million people have had a brush with the law that resulted in a criminal record. And every year, about 650 thousand of them are released from prisons and jails—reemerging into society with one goal—to get back on their feet. To increase opportunity, some states are rethinking their approach to criminal records. Massachusetts is one. Francesca Rheannon brings us this report, which was co-produced by Deborah Begel.

The Struggle for Private Employers to Ban the Box – see script below

More than 3 dozen states, cities and counties have removed the criminal history question for applications for government jobs. But only about 15 percent of American’s work for the government—the vast majority work in the private sector. And as of March 2012, Massachusetts and Hawaii are the only two states that have banned the box on employment applications for private employers. Several other states and local governments are considering doing the same, including San Francisco. But as.making Contact’s George Lavender reports, the obstacles to banning the box for private business can be difficult to overcome.


For more information:

National Employment Law Project
All of Us or None
EPOCA: Ex-Prisoners and Prisoners Organizing for Community Advancement
Real Cost of Prisons Project
Boston Workers Alliance
SF Human Rights Commission
Unite Here! Local 2
Give Something Back Office Supplies
Drug Policy Alliance
Neighbor to Neighbor-Massachusetts
Mass Legal Services
Legal Services for Prisoners With Children
Massachusetts Governor Deval Patrick
Omnia Foundation

Articles, Reports:
Do Workers with Criminal Backgrounds Deserve a Second Chance?‘- In These Times
Too Little, Too Late,” by James Alan Fox
ACLU CORI Reform chart
A Brief History of the Drug War – Drug Policy Alliance
Race, Prison and Poverty by Paul Street
Ex-offenders and the Labor Market by John Schmitt and Kris Warner

Criminal Minded by Boogie Down Productions
Locked Up by Akon
I Tried by Bone Thugs Feat. Akon
Peacock Tail by Boards of Canada
XYZ by Boards of Canada


The Struggle for Private Employers to Ban the B – Script

The ’Ban the Box’ movement has made significant progress over the past 15 years.  More than three dozen cities and counties have removed the criminal history question for applications for but only about 15 percent of American’s work for the government—the vast majority work in the private sector.  And as of March 2012, Massachusetts and Hawaii are the only two states that have banned the box on employment applications for private employers. Several other states and local governments are considering doing the same, including San Francisco.  But as making Contact’s George Lavender reports, the obstacles to banning the box for private business can be difficult to overcome.


After getting out of prison in 2007, Marilyn Austin-Smith applied for a job at a number of the San Francisco Bay Area’s largest employers.

MAS: My biggest problem was people not calling me back- to say you don’t have the job we’re not hiring at this time or you don’t qualify- something. They didn’t call back and say anything- there goes that ball and chain.  I’m wearing this ball and chain on my ankle because I’ve done my time I did what I was supposed to do, now I want to  become a productive citizen. I’m wearing that ball and chain from now until eternity due to the fact that you can’t get a job. Even though you qualify for it- you might be educated for it you might be overqualified for it- they still will not hire you.

While the State of California banned the box for its own employees in 2010- private employers are still free to do as they choose.  Austin-Smith applied for jobs at Macy’s, Safeway, Footlocker, Lucky’s and Dollar Tree all of which had a question about criminal records on the form.

MAS: See- if the State of California will hire us how come these individual employers, or these other major companies.. that’s making our money ‘cause we shop at these stores, we eat at these restaurants, we go to these gas stations, we go to these doctors but they will not hire you with a felony conviction

None of the companies Austin-Smith tried to work for would comment on their use of the box for this program, But Michelle Natividad Rodriguez of the National Employment Law Project, says there are some common reasons employers give for asking applicants about their criminal records.

MNR: So there was this survey from the Society of Human Resources management- they did a survey of their membership of the different reasons that companies were interested in doing background checks. Certainly, the top 3 reasons were much as you would expect- they wanted to be make sure they would have employees who aren’t going to be involved in criminal activities, they were concerned about liability they were concerned about potential theft. And the criminal record check was supposed to give them some kind of indication.  Unfortunately for them, and unfortunately for our workers, that information is out there, but there isn’t a lot of evidence backing that up. We haven’t seen the evidence or research that someone’s criminal record is any more predictive of that persons’ negative behavior on the job than other things- like having a good interview, having good references, those are the kinds of elements that we advise employers to look at.

A report by the Society for Human Resource Management found that roughly 80% of US employers carry out criminal record checks on job applicants. While this practice is legal, Michelle says the problem is that the checks are being used as blanket bans, stopping people getting work.

MNR: It’s all across the board- and it’s especially, it’s especially affecting our communities of color. African American and Latino communities because the criminal justice system is what it is and they’re targeted more. So communities of color end up being really hard hit with these practices.

In San Francisco, large hotel companies including Hilton and Marriot all have the box on their application forms. Mike Casey is President of Unite Here! Local 2 which represents hotel workers in San Francisco.

MC: I think a lot of employers will take a look at the pile they’ve got because there’s a high number of people looking for work. Probably right away the first thing the employer does is- ‘let’s separate these into two piles- those with a felony conviction and those without’. I think it’s discriminatory in ways that disfavor poor people and working people

A report by the Center for Economic Policy Research found that people with criminal records have much higher unemployment rates than the rest of the population.  Casey says his Union supports removing barriers to employment, for anyone with a record.  It’s an issue he says the labor movement should be taking up. In the meantime, Casey says the union is doing their part.

MC: Many unions- including our own have hiring halls so many of our members get work out of the hiring hall- we don’t discriminate against people because they might have some kind of record. So of course, in our practices we don’t discriminate against people- we don’t believe that employers should discriminate against people. It’s just another form of discrimination against the most disadvantaged in society.

There are a small number of employers in the Bay Area who make an effort to hire people who have been excluded from the workforce for many reasons, including criminal convictions. ‘Give Something Back’ is an office supply company that employs about 100 people.

MH: One of the clear benefits that a company like ours can offer to a community are employment opportunities
Mike Hannigan is ‘Give Something Back’s’ company director.

MH: We recognize that there are many populations which are excluded from the workplace because of barriers. Those barriers could be income barriers, social economic barriers, or incarceration. We make efforts to bring people into our employment opportunities.

Despite these efforts to be a more inclusive, ‘Give Something Back’ does in fact still require applicants to disclose their criminal convictions.

MH: But also on the application- there is in fairly bold print that says if you answer yes it doesn’t exclude you from a job. That in itself doesn’t exclude you from a job.

But even with disclaimers such as this, requiring disclosure at this initial stage is a very real deterrent for many people. It also makes it virtually impossible to prove that widespread discrimination is taking place because employers can claim that a candidate was refused for some other reason.

MH: So you’re saying when they fill out that original application they shouldn’t have to disclose it?

GL: That’s the argument

MH: I’d have to listen to the argument but that would make it clear that employers were seizing on a particular issue to eliminate someone from contention- it would be easier to identify that particular thing if that particular thing didn’t come up until… I think that’s a reasonable issue to consider. I would like people who had the best interests of the community to get that out into the Human Resources world and if it was the right thing to do we wouldn’t have a problem with that

The National Employment Law Project estimates that 25% of adults in the US have criminal records.

MH: If that’s what the demographic is- then the question is why isn’t 1 in 4 people here come from that demographic? That’s a fair question- if we could all be forced to do it without a competitive disadvantage coming to the people who have to jump to the front- I mean we’re willing to do certain things because it’s the right thing to do.

Marilyn Austin-Smith is now a member of All of Us or None, an organization which campaigns on issues affecting formerly incarcerated people, and has been active in the fight to get rid of the box in San Francisco, and elsewhere. She now works as an in-home caregiver, but her daughter, who has been out of prison for over a year, is still unemployed.

MAS: There’s still that ball and chain I don’t care how you put it- we’re going to be carrying that ball and chain forever- it seems like when you really want to make a living like most of these families- they’re stopping you from feeding your children- they’re stopping you from being able to make an honest day’s living. And they wonder why there’s so much crime in the world?

If San Francisco’s Board of Supervisors does pass legislation to ban the box for private employers, they will join a growing number of towns and cities in Connecticut, New Jersey, Massachusetts and Pennsylvania.  Campaigners hope that San Francisco can serve as an example to other major cities in California and across the US.

For Making Contact, I’m George Lavender, in San Francisco.

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  1. The passing of a law is only the begining. As hard as it is to rally a community, push for new voter registration, have your community actually contact thier legislators, then sit down and educate these State Senators and State Reps of how the system has been unfair to this group, is something that I will always be proud of. After a bill has been past, is when we need that continued push to make sure that all we fought for will not be swept under a rug, or have it changed before it has a chance to take root. As the gap between priviledge and under priviledge grows, communities across the nation should take heed and not bury thier heads in the sand and think they can’t make a difference. “”YOU CAN”” The need for more of us to particpate in the political process is our only hope. When two or more people come together over an issue they share, “and if they know that what is happening is unfair” there will be a passion for justice that is hard to beat. Durning the early Civil Right Movement many people “Knew” but few did. Not until others had the courage to start, would other join in. Today we all know someone or maybe it’s you, that has a criminal record and you have tried to put it behind you but can’t move forward. Like NIKE says “just do it”

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  2. We are all guilty of something… Many of us who “paid back”, and paid and paid, have learned more from our sins than those that never got caught. The laws speak nothing of what is just, as they continue to be financially driven. In a system which proclaims constitutional equality, yet denies to restore human rights and dignity, it is profoundly impossible to “mend the fence” without restorative opportunities and rehabilitation.

    I am a recovering alcoholic, and this is my personal battle:

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  3. Do you live in a state where an action is against the law that is not against the law in another state?
    Do you live in a state that does not offer a class to prevent you from being convicted of a traffic violation, as it would be if you lived in another state?
    Do you live in a state where your criminal record cannot be expunged, as it would be if you lived in another state?
    Do you live in a state where a driving violation is a felony that is considered a misdemeanor in another state?
    Do you live in a state that does not employ the ban the box initiative?
    Not all states have the same statues. While some states are more lenient and forgiving, others states condemn you for life. Everybody makes mistakes. Everybody deserves to work to feed their families. Discrimination should not be allowed in the workplace. Help qualified Americans get jobs by signing a petition at we the people :!/petition/help-more-qualified-americans-get-jobs/XMrGVTzP

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  10. Why can’t we just come up with a point system or a color coded system that would provide employers a general idea about a potential employee’s criminal record or lack thereof rather than providing them with “extemely” confidential arrest information and putting some average HR Sally or Joe as the determiner of whether that person can be hired or not. Shouldn’t be that hard to do. Or better yet maybe require all applicants to take lie detector tests or give employers the opportunity to contact old friens and colleagues to see what they can find out. Are we presupposing here that only all the “bad” people are arrested so it’s pretty much black and white. That’s very lazy thinking friends.

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