Published July 28, 2016 By Ken Springer

As more cities and states adopt “ban the box” policies, it has become increasingly unclear who is being protected by these regulations. Ostensibly, “ban the box” seeks to protect people with prior criminal histories from being discriminated against when seeking a job. Proponents claim that employers ask about past criminal activity early in the application process as a way to discard people with criminal histories from consideration. No doubt, these activists have good intentions. But they fail to appreciate that “ban the box” puts the interests of people who have made poor decisions ahead of hardworking, law-abiding citizens.

Small businesses – the life blood of the US economy – are already time- and resource-constrained trying to stay afloat in an increasingly challenging global economy. Forcing them to spend money, time, and energy interviewing prospective employees is a burden they should not have to bear. And what of the legal liability a business owner would face if, by not having that box checked, they should neglect to ask a would-be employee about their criminal history, and that employee hurts another employee or customer?

Getting the issue of past criminal activity out in the open early on in the hiring process allows the employer to ask about it and better understand if it was a youthful indiscretion or a one-time mistake that the person made amends for. Was it a white-collar crime or an assault and battery or rape? Why assume ill-intent on the part of employers when they are trying to determine what’s best for the company? Statistics show that many businesses are willing to hire people with a checkered past, providing they understand when and how the problem occurred.

In theory, “ban the box” serves a noble purpose. In practice, however, it impacts countless unwilling and unknowing participants. The ways in which a criminal record can impact your job are numerous: a salesman who has several DUIs and can not be responsible for driving around clients and entertaining them; an administrative assistant who has been convicted of theft; a summer intern who was found guilty of assault and battery; an IT guy who was arrested for hacking into his old boss’s computer. It’s senseless that employers are not entitled to know about these infractions. If the employer chooses to hire the candidate with the criminal record, then that is the employer’s decision. But blocking that information is almost setting companies up to fail.

It’s not as though people with criminal pasts are universally shunned, or that they don’t already have certain protections under current laws. The Fair Credit Reporting Act (FCRA) is the federal regulation that dictates what employers can and cannot know about potential employees, and many states have adopted additional rules. Depending on the candidate’s salary, employers may not be entitled to know about prior bankruptcies or arrests if they occurred more than seven years ago.

The introduction of “ban the box” will undoubtedly have another unintended consequence that will hurt business – lawsuits. If the sex offender was a great guy, needed a second chance but the employer decided not to hire him because he found a more qualified candidate, there should be no repercussions for the sex offender who was denied the job. And yet, with “ban the box,” more rejected candidates will sue companies for not hiring them ,using the new law as a cudgel to intimidate employers.

An estimated 70 million Americans – roughly 20 percent of the population – have a criminal record of some kind, and no one would say that these people should be barred from working or unduly discriminated against. But that also doesn’t mean that the government should use its muscle to force an employer who runs a daycare center from taking the time and effort to learn all about a would-be employer’s work background, only to hear at the end of the process that the applicant was arrested and convicted of rape or possessing child pornography.

In advertisements, investment firms are obligated to say that past performance does not guarantee future results. But in most areas of life, past performance is the best indicator of how a person will perform.