Ex-inmates win new law requiring California employers to “ban the box”
Many of the 7 million Californians with a prior arrest or conviction can likely relate to Sandra Johnson’s job hunting experience nearly a decade ago. On every employment application, she checked a box that inquired about criminal history.
“It was terribly hard,” the 59-year-old mother and grandmother said of the months she spent seeking work after completing a San Francisco drug treatment program. “I would go and apply and I would never hear back because that box was always there.”
Eventually, Johnson got lucky. The head of an organization that was helping her with computer skills referred her to a paratransit company. She was honest about her past, got the job, and for more than five years drove clients to and from dialysis. She said she came in on days off, if called. She was named employee of the month. She even did a little promotional video for her bosses.
“I was straight and narrow and I just wanted a second chance,” Johnson said. “I was supporting myself and that gave me something to feel good about.”
Then, in 2013, she said, the company changed hands, ran a background check and canned her.
Johnson’s voice still cracks when she recounts her devastation and feelings of shame that none of her progress had mattered. Now, however, she’s part of a grassroots movement fighting for change.
All of Us or None, an organization made up of formerly incarcerated men and women, has chalked up victories in recent years, working with allied groups to persuade 150 city and county governments and 29 states to adopt some form of “ban the box” changes—most applying to government jobs. The laws and policies don’t prevent employers from inquiring about criminal history, but delay such questions until later in the hiring process.
California has had a “ban the box” law for city, county and state employers since 2014 that delays questions about conviction history, with a few exceptions, until an applicant has been determined to meet job qualifications. But Johnson and others spent recent months traveling to and from the state capitol to share personal stories in hopes of vastly expanding the changes.
Their efforts helped spur the passage of AB 1008, known as the Fair Chance Act, which landed on Gov. Jerry Brown’s desk last month. Authored by Democratic Assemblymember Kevin McCarty of Sacramento, it would expand “ban the box” provisions to the state’s private sector. If Brown signs it, California would become the tenth state to do so. Fifteen local jurisdictions, including San Francisco and Los Angeles, already have such private sector bans in place.
One in three adults—or more than 70 million people across the country—have some type of criminal record, and “ban the box” bills are advancing amid a growing recognition that access to work reduces recidivism. But studies also show employers are reluctant to hire ex-offenders, particularly African Americans and Latinos.
After a 2014 law went into effect in the District of Columbia, a recent government analysis found, the city hired 33 percent more people with records.
“This is a huge issue we’re trying to address in California with criminal justice reform and redemption—giving individuals a second chance at life,” McCarty said. “It’s not a Democrat liberal thing. The state of New Jersey, led by a Republican governor, they’ve embraced it.”
The California legislation would apply to businesses with five or more employees, requiring that they postpone inquiries into criminal background until after a conditional employment offer has been extended.
If an employer then runs a background check, the bill would require that they assess each person’s circumstance individually, examining the nature of the crime and any relationship to the job, the amount of time that has passed since the offense, and evidence of rehabilitation. Such assessments conform to U.S. Equal Employment Opportunity Commission guidance issued in 2012 on the use of conviction and arrest records.
The bill also would mandate that employers share with applicants any criminal history they come across and give them a chance to correct errors, provide evidence of expungement, or present mitigating information.
Opponents early in the process “were lined up out the door,” McCarty said. He clarified exemptions for jobs in which legal restrictions already apply, and loosened some burdens on employers—amendments that persuaded the California Chamber of Commerce to withdraw its opposition. (Some large employers already follow “ban the box” practices, including Walmart, Starbucks and Home Depot.)
Still, fierce opposition remains. Tom Scott, California executive director of the National Federation of Independent Business, said three-fifths of his 22,000 state members have between 6 and 10 employees, and aren’t likely to have human resource or legal departments.
“It takes significant resources to post the job opening, develop the job description, schedule interviews and then make an offer,” Scott said. “The idea of going through a process with limited information and without the ability to consider an applicant’s criminal record just adds a huge cost if the employer has to start the whole process over.”
Scott contends the process is so confusing he anticipates “a tsunami of litigation” over minor missteps. Many business owners have expressed concerns to him about the bill in recent months, he said, but a spokesman for the organization said none wished to speak out publicly for fear of retaliation.
On the Senate floor last month, GOP state Sen. Jim Nielsen of Tehama urged a no vote, contending that the issue the legislation attempts to address “is not a huge problem.” The bill, he said, is just “another imposition on businesses, small businesses. in terms of how they conduct themselves.” He also warned of lawsuits, saying the bill sets up “a cause of action against that employer” for failing to perform the individualized assessment the bill requires. Others have suggested businesses that hire someone with a record who later commits a workplace crime could face liability.
Backers call those concerns overblown. Since San Francisco passed its private sector fair chance ordinance in 2014, the City’s Office of Labor Standards Enforcement has launched 59 investigations, according to the department’s lead analyst, and resolved “nearly all” informally by working with the employer. They’ve issued just one $50 fine.
Negligent hiring lawsuits must prove a likelihood that the employer knew a workplace issue would arise, backers add. Under fair-chance laws employers aren’t compelled to hire any applicant, and if the job is unrelated to the original offense, they would have no exposure to such liability in the future.
The bottom line to Sandra Johnson: California should “stand up” with the other nine states. Getting rid of that box, she said, “gives us a chance, just a chance, to be considered for a job by our qualifications and not to be held hostage by our mistakes.”
Dorsey Nunn served his prison time decades ago, came out, stumbled, straightened out and promptly started advocating on behalf of others like him in and out of lockup.
These days, he’s executive director San Francisco-based Legal Services for Prisoners With Children, another sponsor of the Fair Chance Act. He’s also co-founder of All of Us or None, which was born 14 years ago in a crowded Oakland room and is hosted under his nonprofit’s umbrella. At the gathering, about 70 formerly incarcerated men and women hashed out their basic survival needs and laid out goals.
The chance to work was number one.
They coined the term “ban the box” and launched a campaign at home to remove the question from public employment applications—persuading San Francisco’s Board of Supervisors in early 2006 to pass the first such policy in the country.
But even organizers who shared Nunn’s passion thought he was “crazy,” he said, bursting into characteristic peals of wheezing laughter, “and not in a kind way.” But slowly the group picked up public sector wins in Berkeley and Oakland, betting that “the government would never make a demand on the private sector that it wasn’t doing itself.” Gradually, the membership learned to campaign.
“You fall, get up, scrape your knee, fall, get up, scrape your knee,” Nunn said. So instead of clamoring for one-off victories in cities and counties across the state, they turned to Sacramento, and with support from the National Employment Law Project pushed through the statewide public sector ban in 2013.
Johnson, meanwhile, was reeling from her abrupt dismissal from the job she says she loved. When a friend asked her to come to City Hall to share her story, she agreed.
“When I walked in, it was cameras and TV, and I was like, ‘Oh my Lord, what have I gotten myself into?” she recalled. The hearing, it turned out, was part of the push to expand San Francisco’s ban to private business. It passed in early 2014. Los Angeles followed last December.
After Johnson spoke, a member of All of Us or None approached and handed her a business card. She still remembers flipping it over. “It said ‘‘formerly incarcerated-led organization.’” And that, she said, blew her away. She felt like she had been given an identity. Johnson started attending the group’s meetings, quietly learning “that I’m not a throwaway, that I’m worthy.”
“The shame dissipated,” she said. “That was why we were there, as formerly incarcerated people, to fight for our rights.”
Johnson now works as a policy fellow for Legal Services for Prisoners With Children. She’s two classes away from her associate’s degree at City College of San Francisco. She lives on a leafy Oakland street in a one-bedroom apartment with an overweight black-and-white cat named Sam. And she surrounds herself with her story—to remember it and move it forward.
A “vision board” she crafted from magazine photos reminds her of her strength and aspirations. Delicate artwork by her older brother, Donald, incarcerated for the past 30 years, covers the walls. (Donald’s son went to prison, too, as did Johnson’s sister and another nephew). Above the sofa hangs a framed photo of Johnson’s eldest son, murdered at age 23. His death, Johnson said, drove her to stamp out all feeling with crack cocaine. She cycled in and out of prison for 13 years.
Paroled in 2007, she pushed hard to be released far from her hometown, and landed at the San Francisco women’s drug treatment program. A sprig of Devil’s Ivy given to her when she graduated has now spread its tendrils throughout her apartment.
Beth Avery, staff attorney for the National Employment Law Project, said the voices of the formerly incarcerated have been “indispensable” to the legislative push. McCarty recalled one woman who testified so powerfully in the Senate Labor and Industrial Relations Committee about “how she was not just a statistic” that she swayed Democratic State Sen. Hannah-Beth Jackson of Santa Barbara, a swing vote.
That woman was Johnson. As she took her seat before the committee in a black T-shirt bearing the gold All of Us or None fist of protest, Jackson was eating her lunch. But as Johnson spoke about being fired, the senator began to nod.
“I am a person,” Johnson said in closing, her voice rising and just beginning to waver. “I am a human being. And like all formerly incarcerated people I deserve a chance to make a living, support my family and myself, to be a contributing member of the community.”
Johnson said she realized in that moment that Jackson was “really hearing me.” After the vote, “she hugged me.”
“I know she had all the professionals, the highly educated people there telling her the statistics and everything,” said Johnson, “but she really didn’t understand that this impacts human beings, a living breathing person.”