This commentary originally appeared in the Austin American-Statesman on November 9, 2015.
Small businesses may soon be held financially and even criminally responsible for making an unintended mistake during the hiring process.
The Economic Opportunity Committee for the Austin City Council is considering the implementation of fair-chance hiring policies. Fair-chance hiring policies are a series of measures intended to help reintegrate people with a criminal record back into society.
These can range from delaying when a private employer can look at criminal history of a prospective employee (“Ban the Box”) to requiring a small business to hold a job open for a period of time to allow an individual a chance to explain their criminal past.
The concept is novel and has good intentions. Statistically, individuals with a criminal record have a difficult time finding a job or even proper housing. Without these two components secure in an individual’s life, the chance of reoffending greatly increases.
However, like many good intentions, there is a litany of unintended consequences that will come from fair-chance policies if an ordinance is ultimately signed into law by the mayor.
By placing the responsibility on the employer instead of the potential employee, the burden of the regulation falls squarely on the innocent owner, which means significant money spent on attempting to comply with various complicated regulations. This will end in many cases with the prevention of new hires due to a decrease in expendable revenue.
As has been the case in other cities that have enacted fair-chance policies, such as Baltimore, an employer can be heavily fined, blacklisted for business partnerships with the city, or even charged criminally for not following protocol exactly, even without any intent to do so. It is both counterintuitive and counterproductive to threaten prosecution for enforcement of a law intended to mitigate the consequences of a criminal record.
Once the government hands out its punishment, the bleeding may not stop there. An employer is wide open to being sued under these ordinances, meaning more time, money and reputation lost for the business without ever having the intention of breaking the law.
This is not to say that further reforms are not necessary to improve the process by which those who have served their sentence reenter society. Giving certain individuals a second chance after paying their debt to society is mutually beneficial to the ex-offender and the public at large. However, we must be careful about how we solve this problem.
The solutions are personal responsibility and incentives, not regulation and threat of punishment. For example, Texas currently allows for the sealing of records for certain low-level, nonsexual misdemeanor convictions, but this could be expanded to other nonviolent offenses.
This process requires the person to prove to a court that they have been crime-free and are ready to contribute to society. Once sealed, an individual can truly state they have not been convicted of the crime, although law enforcement and certain areas such as health care and education can see through the seal.
This requires the ex-offender to take responsibility for their actions, while the small business owner is protected from criminal and civil liability. This is also a more attractive route for the ex-offender compared to delaying the exposure of their record, because it is never exposed, thus increasing his or her chance of actually being hired.
Texas also has recently passed laws that incentivize employers and housing managers to hire and house certain ex-offenders by preventing lawsuits based solely on a person’s criminal record. These laws serve as a model for the rest of the country.
Businesses that don’t automatically disqualify based on a person’s criminal history should be commended. Major employers such as Wal-Mart, Home Depot, Starbucks, and Koch Industries are implementing their own variations of fair-chance hiring policies that meet the specific needs of their company.
However, a one-size-fits-all approach that threatens the force of government on a small business is never the answer. We should reward employers for looking past a person’s minor transgression, not overburden them.
Glod is a policy analyst with the Center for Effective Justice at the Texas Public Policy Foundation.