"Ban the Box" And Corporate Liability -- When A Company Can Be Sued Both for Doing A and Not A.

New York City has instituted a draconian "ban the box" law that makes it extremely difficult for employers to avoid hiring people with criminal records  (via Overlawyered)

The bill, which is likely to become law in some form, would prohibit the commonly used "check boxes" on job applications that ask about past convictions. It also would forbid employers from asking questions about an applicant's criminal history until a conditional job offer has been tendered....

The bigger concern is lawsuits from job seekers. To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, Mr. Goldstein said.

“I think you’d see some increases in litigation, and this is not exactly a well-settled area of law,” he said.

Proponents say the bill would simply offer a clearer way for businesses to follow state law requiring employers to go through a multistep test to determine if an applicant's past criminal behavior correlates with the position being sought.

Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time.

An employer's failure to adhere to the process could lead to a fine of at least $1,000. In the bill's current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.

“Rather than the normal context, we have the burden here shifting,” he said. “It would be on the employer to present clear and convincing evidence that it had not engaged in unlawful discrimination.”

Given that the burden of proof seems to be on businesses in employee lawsuits even when the playing field is supposed to be level, I shudder to think what a statutory burden of proof would mean.  Likely an automatic win for any employee.

Given this, here is a question for you:  Imagine that I hired a convicted felon who then committed a crime against one of my customers.    Would I be shielded from liability because I had limited ability to screen out candidates who posed dangers to customers?  HA!  No way.  The plaintiff's attorney for the customer would be in front of the jury making me look like Attila the Hun for not screening felons from my applicant pool, even as the government made that task effectively impossible.

That is the key to this law -- that proponents can claim that one can screen out felons "if appropriate to the job" but in fact the law makes it effectively impossible to do so without imposing staggering litigation costs on me.  So we get the Leftist ideal - I can be sued by employees for screening out felons and I can simultaneously be sued by customers for not screening out felons.


  1. Onlooker from Troy:

    And yet another log on the bonfire that is employment in this country. There's no way that this doesn't have untold unintentional consequences that will hurt, and hiring practices in particular.

    And another impetus for further automation of jobs. On top of min wage, etc. Way to go government, you'll kill the goose yet.

  2. Matthew Slyfield:

    Fortunately this is confined to NYC for now.

  3. Not Sure:

    "Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

  4. Joe:

    The problem is that so many people have a criminal record for victimless crimes (i.e. marijuana prohibition related charges). The best solution would be to repeal these laws and expunge the records of people who have these non-violent offenses.

  5. Joe:

    Progressives in Congress in recent years have called for making the long term unemployed a protective class. Meaning that an employer can't discriminate against a job applicant who has been unemployed for a long period of time. If the Democrats should somehow win the House and keep the Senate in November expect the Democrats to push this and a federal "ban the box" law. The left won't be happy until they drive all private enterprises out of business.

  6. FormerFlyer:

    This sort of catch 22 is hardly new. I work in a segment of health care where about one third of our revenue comes from government programs (Medicare and such). Back in the 80’s there was black-letter law that said to bill the government one way and black-letter law in another section of the same code that said to bill a completely different way. There was no possible way to reconcile, as the two billing systems were diametrically opposed. Companies had to pick which way to bill the government, and the feds would provide no clarification or direction about which was the correct procedure. All requests for clarification were rejected.

    In the 1990’s the government, through the OIG, decided to fine companies that chose the billing procedure that provided more revenue for their companies, and to prosecute a large number of responsible executives at those companies. Then they proceded to decertify the company from participation in any federally funded reimbursement program immediately if they objected to the fines or attempted to support the executives being prosecuted. Since they controlled 1/3 of the industry's revenue directly, and since payers are prohibited by law from contracting with or purchasing from a decertified company, they would simply make your company disappear if you fought the process. According to one of our trade publications, by 2001, one in three of the businesses in my industry had an owner, officer, executive, or director in jail over these billing issues. It’s one of the reasons I’ve refused promotion and job offers; I look horrible in orange jumpsuits, and fresh air on alternate Wednesdays doesn’t seem like my idea of an executive health plan.

    “I love my country, but I fear my government.”


  7. louctiel:

    Or the best solution would be if you want a job in the future, don't break the law.

    If I am hiring a fork lift operator or a driver (either intra-state or over the road) don't you think a pot conviction matters to me as to your driving ability and my exposure to liability and accidents?

  8. Joe:

    If an applicant was previously convicted of reckless driving because s/he got behind the wheel of an automobile while high on pot, yes that would be relevant. A pot conviction in and of itself is irrelevant. Who cares if a person consumes marijuana responsibly on their own time?

    Under your logic the 21st Amendment should be repealed so we can once again enforce the 18th.

  9. Tarpey:

    Same old story:
    Regardless of who wins or loses, the lawyers win.