A lack of employment opportunities is often cited as a contributing factor to ex-felons ending up back in the prison system. Cutting down on the number of repeat offenders in the Corrections system is one way to reduce prison costs and restore offenders to a productive role in society.
Legislation currently pending in the Michigan House reveals two different approaches, the carrot and the stick, to address the issue.
First, the stick. This would make it unlawful for an employer to inquire about, or require an applicant to disclose, any criminal convictions during the application process and interview. These efforts have been called “ban the box,” as they would require removal of a common check box on many job applications that ask if an applicant has a previous criminal conviction.
The legislation would also prohibit any oral questions regarding an applicant’s criminal history during the interview process. Background checks, including a criminal history check, could only occur after the interview process.
This approach creates difficulties for employers in a number of ways. Under current practice, an employer can eliminate an applicant for a cashier position who has a theft conviction. The new restrictions in the proposed “ban the box” legislation would force the business owner to incur the expense of a background check after the interview. Many employers will be discouraged from considering criminal history for fear of potential litigation. This may put employers in a difficult position because they have a responsibility to ensure a safe environment for employees and customers alike, yet could be subject to costly litigation for a negligent hiring decision. This “Ban-the-box” legislation has been introduced by State Rep. Fred Durhal Jr., D-Detroit, as House Bill 4366.
Other legislation being considered by the state House would take more of a carrot” approach. This bipartisan package of bills seeks to encourage employers to hire former prison inmates, with incentives and protections for doing so. The legislation would allow the Michigan Department of Corrections to issue “certificates of employability” to inmates who take part in educational programs and who the department determines are suitable for employment upon release.
If a former prison inmate with the certificate demonstrated after being hired that he or she was a danger to individuals, the employer who hired the individual would not be liable in a civil action unless it could be proven that the employer had knowledge that the person was dangerous. So the employer receives the benefit of a prospective employee that has documented skills and is protected from liability if that person creates a problem with employees or customers after being hired.
The bills in this package are HB 5216, HB 5217 and HB 5218 and the bills’ sponsors are Reps. Klint Kesto (R-Commerce Twp.), John Walsh (R-Livonia) and Harvey Santana (D-Detroit) respectively. This week the Legislature moved forward on these bills and reported them out of the House Commerce Committee. The stick bill, Durhal’s HB 4366, is stuck in committee, where it deserves to stay.
The “command and control” regulatory stick approach to business regulation is the least productive way to encourage desired behavior and outcomes. It is the method currently being employed by the White House and the “off the leash” federal agencies like the NLRB, EPA, OSHA and the other alphabet soup departments that are smothering the economy. It is no wonder the nations job market is in a shambles when employers are faced with uncertainty at every turn because of this style of public policy by bureaucracy.
The difference in approach illustrated by the bipartisan efforts of these Michigan lawmakers serves as a valuable lesson to Congress and the administration on how things should be done if they really care about jobs more than just as a sound bite for reelection speeches.