‘Ban the box’ efforts are active in states surrounding Idaho

Criminals who have paid their debt to society are often faced with a new barrier once they leave prison: Employment applications that ask whether they’ve ever been convicted of a crime, and potential employers that write off anyone who checks that box. Unable to find a job, they are consequently often vulnerable to poverty and recidivism.

Facing this problem, an increasing number of cities and states are implementing so-called “ban the box” regulations that forbid employers from asking about criminal history until later in the employment process. But while several of these regions neighbor Idaho, there are no significant efforts to implement such legislation here, despite its oft-cited lack of workforce.

“I’m not aware of any effort to bring ‘ban the box’ legislation to Idaho,” said Steve Berenter, a partner with Hawley Troxell Ennis Hawley LLP and chair of its employment law practice group. “Many employers would argue that they want to be able to ask applicants about criminal records as a screening tool.”

Berenter emphasized that even in regions that have implemented “ban the box” regulations, employers can typically still ask about criminal history before hiring – just not at the front-end application stage. In Oregon, for example, employers can ask in the initial interview, while in the city of Portland, the question has to wait until a conditional offer of employment is made, he said.

Altogether, nine states have laws restricting all employers, public and private, from asking about criminal history, while another 16 “ban the box” for government or public employees, according to J. Kevin West, shareholder in Parsons, Behle, and Latimer, a regional law firm based in Salt Lake City with a Boise office. In addition, about 150 cities and counties have some form of “ban the box” laws, he added.

The movement started in 2012 with a report from the Equal Employment Opportunity Commission, or EEOC, West said. “The EEOC is very much supportive of the idea that considering a criminal background has a potentially discriminatory effect, particularly on minorities.” In particular, the EEOC has suggested that asking about a criminal record should never be a screening device for all applicants, he said.

But like Berenter, West hadn’t seen any efforts in Idaho.

“Idaho is not going to be in the lead on this,” he said, though he added that he wouldn’t be surprised to see cities or counties in more liberal, progressive areas of the state, such as Boise or Pocatello, implementing such “ban the box” guidelines.

While the city of Boise still asks about criminal history at the application stage, “an applicant’s criminal history is just one of many things our organization examines when considering someone for employment,” said Shawn Miller, human resources director for the city, in an email message. “We certainly take into consideration many mitigating factors to counterbalance a criminal history, such as employment history, length of time since the incident, severity of the incident, etc.” The city continues to ask for the information because many employees work with or around children, handle life/safety issues, work with dangerous equipment, handle public funds, and interact with Boise citizens, he said.

The Idaho chapter of the American Civil Liberties Union brings up the concept in the context of criminal justice reform, but doesn’t have the capacity to take the lead on an Idaho campaign, said policy director

Kathy Griesmyer. Helen Lusk, a prisoner advocate who serves on the Region 6 Behavioral Health Board and the Board of Directors for the New Hope and Recovery Center in Pocatello, said she has been laying the groundwork for such a bill in the Legislature for the past couple of years. But she hasn’t found anyone to write the legislation. “Attorneys, judges, prosecuting attorneys, public defenders – they all know this is a big hurdle Idaho has as far as keeping these guys on the straight and narrow,” she said.

Regions that have implemented “ban the box” policies haven’t noticed much in the way of problems, said Beth Avery, staff attorney for the National Employment Law Project, which tracks it nationwide. A Stanford University study of a similar program in San Francisco found that people with criminal records were as good or better as other employees, she said. “People with records want to work – they just need that chance,” she said. “When they do get the chance, they don’t want to mess that up.” She also was not aware of any region that had rescinded “ban the box” policies.

Some nationwide companies with an Idaho presence, such as Staples, Starbucks, and Wal-Mart, have implemented companywide ban-the-box programs that consequently apply in Idaho as well. Representatives from these companies said they couldn’t provide details about how many such employees might have been hired in Idaho or what their experience had been, citing employee privacy.