This commentary originally appeared in the Austin American-Statesman on April 4, 2016.
To the fanfare of many in the chamber, the Austin City Council passed 8-2 an ordinance entitled “Fair Chance Hiring” last month. The measure, according to the author and activists, is intended to counter the stigma of a criminal record and to get ex-offenders plugged back into being productive members of the community.
For its intention, I along with the rest of those involved in criminal justice reform give the measure an “A+!” An outdated criminal record has almost no signaling property for future offending after five to eight years, depending on the underlying offense. For this reason, an ever-growing number of private businesses are not inquiring about criminal history on their own volition. However, for the execution, the ordinance champions deserve no better than an “F.” In fact, those who the ordinance’s supporters are seeking to help will likely be worsened by it.
First, the ordinance does not do anything to benefit the applicant. While it does forbid inquiring about the applicant’s criminal history prior to the employer making a conditional offer, it cannot stop the employer from performing their own criminal history search before extending the offer. Were the employer to extend an offer and rescind it upon seeing an applicant’s criminal history, this would open them to litigation and possible criminal penalties.
Under the ordinance, it would be simpler for the employer not to extend a job offer until the candidate was vetted by the employer through public records searches, giving candidates with any criminal history no chance to explain their case. This is in large part why Goodwill, the only organization appearing before the council that actually works to reintegrate ex-offenders into the economy, testified in opposition of the ordinance.
Second, the additional burden borne by the employer is not trivial. In addition to the aforementioned litigation, employers now must now also pay a greater marginal premium to hire. For those employers who fly applicants in from out-of-town, the risk of losing a finalist to an applicable earlier criminal conviction makes the practice nearly cost-prohibitive. For jobs on the lower end of the wage scale, it is now a better business strategy to rely upon temporary workers (and let the placement agency shoulder the associated risk with a hiring faux-pas) than to create a permanent position. Unfortunately, the temporary staffing agencies appearing before the council expressed concerns similar to Goodwill, expressing that they will not be able to place candidates (criminal history notwithstanding) without this information.
Third, and perhaps most ironically, barring criminal background checks tends to exacerbate disparities in hiring practices, not correct them. Activists have maligned the legislation’s opposition as a “privileged few” with cruel intent of waging class warfare (despite the support several opposing groups have lent to similar legislation), even though no scholarly studies exist showing a macro benefit of “fair chance hiring” policies amongst a pool of ex-offenders, or the economy more grandly.
Notably, several studies have been published illustrating that when barred from criminal history and related information, employers are more likely to make less-equitable hiring decisions. In short, the “New Jim Crow” is rejected in favor of the Old Jim Crow.
Fourth, it is not necessary. Many large employers — Target, Wal-Mart, and Koch Industries just to name a few — have already removed criminal history from their application process. Whatever value the question provided during the hiring process was not seen as worth perpetuating; it no longer made sense within their business reality. However, this mandate affects all industries, including those that need to be more scrupulous of their applicants.
The Texas Public Policy Foundation and Right on Crime have supported expanding availability of nondisclosure. We have supported indemnification for employers and landlords who hire or rent to ex-offenders. We have supported licensure reform that makes it easier for ex-offenders to find work as they reintegrate into society. We have supported and will continue to support policies that promote public safety and offer a second chance. The “Fair Chance Hiring” ordinance does neither.
The “Fair Chance Hiring” ordinance is the quintessential example of how the best of intentions, absent careful study and deliberation, can actually make matters worse. Aegrescit medendo.
Cohen is the deputy director of the Center for Effective Justice at the Texas Public Policy Foundation and of their Right on Crime campaign.