Ban the Box or Require the Box?

Ban the box policies forbid employers from asking about a criminal record on a job application. Ban the box policies don’t forbid employers from running criminal background checks they only forbid employers from asking about criminal history at the application/interview stage. The policies are supposed to give people with a criminal background a better shot at a job. Since blacks are more likely to have a criminal history than whites, the policies are supposed to especially increase black employment.

One potential problem with these laws is that employers may adjust their behavior in response. In particular, since blacks are more likely than whites to have a criminal history, a simple, even if imperfect, substitute for not interviewing people who have a criminal history is to not interview blacks. Employers can’t ask about race on a job application but black and white names are distinctive enough so that based on name alone, one can guess with a high probability of being correct whether an applicant is black or white. In an important and impressive new paper, Amanda Agan and Sonja Starr examine how employers respond to ban the box.

felony-ban-the-boxjpg-4cf5965f1e8f84ed_largeAgan and Starr sent out approximately 15,000 fake job applications to employers in New York and New Jersey. Otherwise identical applications were randomized across distinctively black and white (male) names. Half the applications were sent just before and another half sent just after ban the box policies took effect. Not all firms used the box even when legal so Agan and Starr use a powerful triple-difference strategy to estimate causal effects (the black-white difference in callback rates between stores that did and did not use the box before and after the law).

Agan and Starr find that banning the box significantly increases racial discrimination in callbacks.

One can see the basic story in the situation before ban the box went into effect. Employers who asked about criminal history used that information to eliminate some applicants and this necessarily affected blacks more since they are more likely to have a criminal history. But once the applicants with a criminal history were removed, “box” employers called back blacks and whites for interviews at equal rates. In other words, the box leveled the playing field for applicants without a criminal history.

Employers who didn’t use the box did something simpler but more nefarious–they offered blacks fewer callbacks compared to otherwise identical whites, regardless of criminal history. Together the results suggest that employers use distinctively black names to statistically discriminate.

When the box is banned it’s no longer possible to cheaply level the playing field so more employers begin to statistically discriminate by offering fewer callbacks to blacks. As a result, banning the box may benefit black men with criminal records but it comes at the expense of black men without records who, when the box is banned, no longer have an easy way of signaling that they don’t have a criminal record. Sadly, a policy that was intended to raise the employment prospects of black men ends up having the biggest positive effect on white men with a criminal record.

Agan and Starr suggest one possible innovation–blind employers to names. I think that is the wrong lesson to draw. Agan and Starr look at callbacks but what we really care about is jobs. You can blind employers to names in initial applications but employers learn about race eventually. Moreover, there are many other margins for employers to adjust. Employers, for example, could simply start increasing the number of employees they put through (post-interview) criminal background checks.

Policies like ban the box try to get people to do the “right thing” by blinding people to certain types of information. But blinded people tend to use other cues to achieve their interests and when those other cues are less informative that often makes things worse.

Rather than ban the box a plausibly better policy would be to require the box. Requiring all employers to ask about criminal history would tend to hurt anyone with a criminal record but it could also level racial differences among those without a criminal record. One can, of course, argue either side of that tradeoff and that is my point.

More generally, instead of blinding employers a better idea is to change real constraints. At the same time as governments are forcing employers to ban the box, for example, they are passing occupational licensing laws which often forbid employers from hiring workers with criminal records. Banning the box and simultaneously forbidding employers from hiring workers with criminal records illustrates the incoherence of public policy in an interest-group driven system.

Ban the box is another example of good intentions gone awry because the man of system tries to arrange people as if they were pieces on a chessboard, without understanding that:

…in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder. (Adam Smith, ToMS)

Addendum 1: The Agan and Starr paper has much more of interest. Agan and Starr, find, for example, evidence of discrimination going beyond that associated with statistical discrimination and crime. In particular, whites are more likely to be hired in white neighborhoods and blacks are more likely to be hired in black neighborhoods.

Addendum 2: Agan was my former student at GMU. Her undergraduate paper (!), Sex Offender Registries: Fear without Function?, was published in the Journal of Law and Economics.

Comments

I wonder whether there are similar effects elsewhere. For example, does prohibiting employers from asking about candidates' marital status and number of children inadvertently hurt single and childless women and women never intending to have children? Does this explain any of whatever "gender gap" in pay remains after the usual adjustments for hours worked, type of profession, etc.? Also, does resistance to objective performance evaluations --- teacher evaluations, for example --- lead to discrimination against high-achieving minorities if they belong to groups that score lower on average?

At least one British employer has said no one in their right mind would hire a woman of child bearing years.

We are asking businesses to solve a societal problem but demanding they bear the costs. If there is a social good in protecting felons from the consequences of their felony, it is something society as a whole should pay for. Not forcing small and medium businesses to pay for it personally.

Leave people alone to make their own choices.

"At least one British employer has said no one in their right mind would hire a woman of child bearing years."

This implies that the employer wants to hire a worker once and keep him (or her) for many years. Hiring a worker is, to this person's mind, a bit like getting a spouse. Something you should aspire to do once in your lifetime, if you end up doing it twice you're unlucky, three times really unlucky, four times your a bit of spectacle.

"We are asking businesses to solve a societal problem but demanding they bear the costs. If there is a social good in protecting felons from the consequences of their felony, it is something society as a whole should pay for. Not forcing small and medium businesses to pay for it personally."

1. Why would only 'small and medium businesses' pay? Large businesses by definition hire more people so if this policy is a 'cost' they would pay more. Also since large businesses have to automate the hiring process more than small businesses, it would seem the 'cost' here is actually reversed. A smaller business would have time to do more interviews and more face to face interaction with an applicant to judge whether or not a past criminal record is serious or not.

2. Again why not? I believe Reagan once made a huge point about saying businesses don't really pay for anything, they only pass costs onto customers, owners and workers. Well our criminal justice system is a cost to society. Part of that cost is the explicit costs of paying for jails, cops, courts etc. Another part of that cost is rehabilitating people back into society after a criminal conviction.

2. Again why not? I believe Reagan once made a huge point about saying businesses don’t really pay for anything, they only pass costs onto customers, owners and workers. Well our criminal justice system is a cost to society. Part of that cost is the explicit costs of paying for jails, cops, courts etc. Another part of that cost is rehabilitating people back into society after a criminal conviction.

You need to make your sophistries a bit less transparent.

Well let's clarify, what exactly would it mean for 'someone else' to pay for the cost? Do we expect those with a criminal record to never work again or only work subpar jobs for their entire lives? When someone says something like 'let someone other than business pay...' what exactly is that something else he has in mind? A gov't entitlement program? Taxpayer provided 'jobs'? Those alternatives strike me as potentially a lot more costly and less efficient.

All right, we'll take this slow. Reagan's specific complaint concerned assessing corporate taxes, which he considered redundant considering that you assess taxes on payrolls, sales, and dividend income.

The criminal justice system is an inherently public activity. I'm sure you can find Murray Rothbard acolytes who fancy you can contract for it on the free market, but you can't. Deterrence, punishment, and incapactiaton are also necessary activities for the maintenance of public order ('rehabilitation' is up to the convict). There is not anything more fundamental that a public authority does.

'Equalizing life chances' in the phrase which was common 35 years ago, is a dubious business on normative grounds, impossible to achieve without highly intrusive methods, and a project of a collection of professional guilds auxilliary to public agencies and no one else. Various sorts of welfare expenditure were undertaken by public authorities after 1840 in this country, but they had proportionately small clientele (poorhouses, sanitoriums, asylums) or were concerned with establishing baseline conditions rather than equal conditions (public schools, Social Security, public housing). The most intrusive aspect of these programs would be civil committment proceedings (necessary for public order maintenance), quarantines (necessary for public health), child protective proceedings (a dimension of law enforcement), and truancy laws. These last were haphazardly enforced in some areas into the 1940s and not until the early 20th century commonly applied to aught but children between the ages of 6 and 12. And, of course, public schools were much more a reflection of community mores than they are today.

It was not until about 1965 that the notion infected public policy that it was the business of state agencies to fold, spindle, and mutilate everyday social relations to make everyone 'equal'. Folding, spindling, and multilating were, of course, done prior to that, but it had no equalitarian objects at all (see Mississippi, ca. 1925). It was not a popular object in 1965. See Daniel Patrick Moynihan's work, or the work James Q. Wilson was doing on public opinion and elite opinion in Boston at that time; the city hall agenda had no priorities in common with the street agenda.

No one sets up a business to 'equalize life chances'. Or runs their household with that in mind. So, why should your business be conscripted for some shizzy social worker's exercise in futility?

As for convicts, north of 600,000 of them are released from prison every year. They find work. Guess what, Boonton. Decisions you make in your 20s affect your trajectory the rest of your life, whether you've a prison record or not. It is so for everyone, and there's nothing you can do about it.

Well the gov't is actually doing something about it.

First, laws are disproportionately enforced so people with the same behavior end up with different types of records. It may be too much to expect gov't to 'equalize life chances' but why make them purposefully unequal?

Second, databases. Gov't directly and indirectly creates databases. Go back a long time you still had databases of a sort but they were difficult to access. Doing a 'background check' on someone might entail sending a private investigator to places where a person used to live, interviewing people there, and perhaps searching handwritten records at a local court house. Today, of course, databases make it shockingly easy for regular people to do a lot of stalking with just Google.

But since it is the gov't's business to convict people of crimes, this is the gov't's 'data' so to speak. Just like your local cable company can take off that bad mark on your credit for the late payment because it decides it was a 'misunderstanding', the gov't can and should use its data for optimal social benefit. So what you view as imposing a 'cost' on business to me seems more like deciding that one entity (a business) isn't automatically entitled to free use and access of a public good (data on criminal convictions) anymore than a rancher is automatically entitled to let his livestock graze for free on public lands.

In case you hadn't noticed, Boonton, this is a state agency dictating to an employer what questions he's permitted to ask on his application forms. The state is not 'protecting the weak' unless you take prog-trash sales pitches seriously. It's providing fodder for state inspectors to harass businesses and for lawyers to loot them. It is doing so because politicians who take their cues from the social work industry fancy employers should make decisions on some basis other than that which they're inclined to make decisions.

First, laws are disproportionately enforced so people with the same behavior end up with different types of records. It may be too much to expect gov’t to ‘equalize life chances’ but why make them purposefully unequal?

The Government is overly-intrusive in one facet of everyday life; naturally, the only reasonable solution is to begin intruding into other facets.

I have no problem allowing employers to ask anything they want regarding past convictions if in exchange you support putting controls on access to the actual data that would verify the applicant is being honest or not.

How is this different than, say, the laws around credit reports?

Proceedings in criminal cases are not in camera bar for juveniles. There's no reason to treat them as if they were.

You keep coming back to this premise that the Government creates the data, so needs to control access to prevent it from being abused.

But it's not as though the Government is just arbitrarily assigning unique identifiers to each person in a database; it's merely cataloging the results of an entirely separate process, i.e., that of crime and punishment. So to the extent that the data even can be "misused," it's a function of Government error further up the causal chain (i.e., overzealous prosecution), not a function of evil business overlords plotting to keep down the dirty proles. So why is it fair to intrude on private employment relationships in order to prevent problems of Government creation?

Again why not? I believe Reagan once made a huge point about saying businesses don’t really pay for anything, they only pass costs onto customers, owners and workers.

It's almost as though some oppose the privatization of social costs because they actively recognize that businesses aren't abstract pools of money, but are merely the vehicle for pooling the interests of individuals, and that imposing costs on businesses arbitrarily singles out those individuals to bear them.

Except what cost is being imposed on business in this case? Keep in mind the database of criminal convictions is information provided by gov't mandate. Without the gov't in the first place, businesses wouldn't be able to use this data for hiring decisions.

Without the gov’t in the first place, businesses wouldn’t be able to use this data for hiring decisions.

Unless, of course, they were to ask the applicant directly.

Which would of course be an imperfect system, but would be superior to a system in which there is no information available whatsoever (which is what the state seeks to impose through these policies). The poorer decisionmaking that results from being prevented from even attempting to gather information is an obvious cost, even if it's not easily quantifiable.

I believe the 'ban the box' laws do not prohibit the employer from asking during the interview process.

No, they just create a legal climate in which asking about criminal history during the interview process is just a step below hanging a "Sue Me" sign on the front door.

What exactly is a 'legal climate'? US labor law is still 'employment at will'. Unless prior criminal conviction is actually granted protected status, it can be used to fire workers whatever the rule is about 'the box' and can certainly be used to exclude workers from consideration in hiring. In reality it is almost impossible to actually win a discrimination suit unless you have explicit discriminated based on race or gender happening.

People like to assert that it is very easy to sue in the US and that may be the case relative to other countries but if you actually approach a lawyer to really try to file a lawsuit you may be shocked that it's a lot harder than you would think, unless you are Donald Trump.

Unless prior criminal conviction is actually granted protected status, it can be used to fire workers whatever the rule is about ‘the box’ and can certainly be used to exclude workers from consideration in hiring.

Unless it has a disparate impact, in which case it can lead to an inference of discriminatory intent.

And I deeply familiar with the relative difficulty of getting one of these cases into court--while it is not exactly easy for a given individual to get into court, it is trivial for an employer who hires on any more than a greatly irregular basis to get haled into court. It's just a numbers game, after all.

We hired a female employee, our first employee, who two weeks into the job announced she was pregnant.

We're pretty sure she knew that before being hired. So instead of having a new pair of hands to help out, we instead got to enjoy paying her 2-3 month leave, and letting her go. (She had other problems as well.)

Also, for a small business, missing an employee for months is a huge deal. Its much easier when you're a large company that has multiple people who can cover.

I'm okay with these kinds of laws, but it would be nice to be recognized for doing this instead of being called a greedy person who's not paying their fair share by some politicians.

Maybe these benefits should be provided by the state, so that taxes can go up appropriately, and not appear "free" gifts from politicians.

Parental leave is precisely the sort of social good that should be funded out of state coffers than private funds--there's no socially utile reason to mandate private subsidies for private lifestyle decisions.

We already have a model for such a program--unemployment insurance--but of course, if we socialized the costs of a social program, we may well end up facing some inconvenient truths about how much we value parenting.

"So instead of having a new pair of hands to help out, we instead got to enjoy paying her 2-3 month leave, and letting her go. (She had other problems as well.)"

This doesn't quite make sense. You hired her for two weeks and then had to pay her for a 3 month leave? I don't think so. I'm not an HR expert but I think the most you'd have to worry about is FEMLA which just requires you hold her job for her when she gets back (but, of course, I suspect FEMLA probably doesn't apply to an employee who hasn't put any time in on the job). Perhaps she utilized short term disability but that again probably requires more than two weeks on a job and gets paid through insurance rather than directly from you (granted your premium's are based on claims).

Clearly you the woman wasn't visibly pregnant when you hired her so she was working for you for more than two weeks. Since this was your only actual hired employee you had plenty of opportunity to fire her if she had serious 'problems', but whatever they were you worked with her for at least a few months before she went out on leave. Perhaps you had misgivings from the start about her but you didn't weigh those instincts high enough...but strictly speaking that cost is part of the learning curve in doing business. No doubt your future hires worked out better in part because of what you learned from your first.

You then pass the buck onto large businesses because they have more people and they can 'fill in' easier. But again the large business doesn't have the time to do a lot of intensive one on one interviewing the way you would if you were hiring your first employee. Or perhaps they do but that happens because they have lots of middle managers who will scrutinize people hired in their departments. But that imposes a huge cost on the large organization because lots of managers means lots of agency problems, where managers hire people for in-house political gamesmanship rather than looking only at the interests of the company.

Or the company is located in a state with paid leave laws.

Or the company voluntarily offers a paid leave policy, and the bean counters determined the cost of simply letting this woman exploit it was less than the expected costs of a lawsuit for discrimination if they were to deny it to her or terminate her.

1. No state requires paid leave when only putting two weeks onto the job. She might have announced her pregnancy two weeks into the job but she almost certainly worked longer before going out on leave, probably at least 6 months which is ample time to fire her for cause if she really had problems.

2. A 'voluntary' leave policy with bean counters etc. etc. might make sense for a large company but Harun said this was their first employee ever.

He said small businesses because that is a better talking point.

Be honest and acknowledge that large multi-nationals have no problem with industry-wide regulation as they impose barriers to entry for smaller competitors.

If only little bodegas could fire pregnant women and screen the applications for the three openings they have for those with criminal records they could bring Wal-Mart to its knees!

The dirty little secret about progressive big government is that the big business they hate loves big government; shields them from competition.

Boonton June 20, 2016 at 10:08 am

That did not imply that an employer wants to hire a worker and keep them for many years. It implies that searching and hiring are costs. Replacing someone, especially temporarily, is a cost. It is highly disruptive as well. Paying for maternity care is a cost. All these things we dump on employers. It is reasonable to assume they will try to avoid them.

So you start with a strawman based on what looks like total ignorance of how businesses work. That is not a good start.

Big businesses can absorb the costs of poor employees. Small ones have more problems. Also SME are the largest employers. Nor can they always afford a back ground check. I find it amusing you think that face to face time is not a cost on small business. I conclude you have never run one.

The question is not about whether costs are passed on but whether it is fair and reasonable to pass costs on to a random selection of employers. If we all benefit - and evidence has not been presented this is the case - then we should all bear the costs. Just think what this will do to employers in, say, Compton. As opposed to, say, Denver. Why punish one and not the other? You will end up with poor outcomes in inner city areas where sensible people will not employ anyone.

Can't you just write "Barack (no criminal record) Obama" on the form?

Excellent solution to this immediate "Box" issue --- applicants & employers could just "voluntarily" cooperate with each other for mutual benefit. And why can't job applicants ask about any legal problems that a prospective employer might have past or present?

But of course such voluntary freedom of contract & freedom of association cuts out the government social-engineers who otherwise demand to control all aspects of private employment.

Note also that prospective employees are totally free to racially discriminate against employers... without even the slightest government interest or penalty. A white guy who blatantly refuses to apply/work at a black-owned business or patronize a black-owned restaurant... is considered to be perfectly within his legal rights to do so. From the government perspective -- discrimination can only flow in one direction.

Laws are usually in place to prevent the powerful (i.e. employers) from preying upon the weak (i.e. employees), so... noted?

Nonsense -- the usual leftist class warfare point of view.

Small businesses create the most job and the most owners don't fit your rich/powerful stereotype.
Plenty of modest Mom&Pop/family businesses, and business failures.

OTOH plenty of "employees" are rich and powerful and well able to manage their own job arrangements. Consider all those megamillionaire show-business & sports celebrities. All the big-shot Corporate CEO's and senior staff are just employees. The armies of well paid bureaucrats at the U.S. Dept of Labor and throughout the government are humble employees. University professors are employees too.

As far as "Mom & Pop" family businesses are concerned, labor laws are full of exceptions and special treatment for businesses with a small number of employees so your comment is largely a red herring. And the stuff about celebrities and CEOs is completely irrelevant to the experiences of 99.9+% of the population.

Laws are usually justified as attempts to prevent the powerful from preying upon the weak.

In practice, they more often tend to distribute power to politically connected groups (unions, crony capitalists) from politically unconnected groups (consumers, small business).

^^^ ding ding ding.

Most employees are not union members and America's labor laws -- already extremely weak compared to the laws of most developed countries -- tend to have exceptions for small businesses. For instance, the Family and Medical Leave Act does not apply to firms employing fewer than 50 people. If we look at trends over the past 30 years, it seems that power has been moving away from unions and toward private enterprise.

I like the idea of employers being required to disclose how often they've been found to contravene labour laws.

For the same reason employees don't say "WHITE GUY" or "I AM STERILE" on the form.

Because after the first lawsuit, anywhere, HR will demand that you not supply that information.

Once the company willfully blinds itself to the data, it has a very good defense against charges of discriminating on that data.

As a technical note - the link to the paper should probably be http://www.jstor.org/stable/10.1086/658483 without the preceding http://Stable%20URL:%20 - at least, the first address works in my javascript turned off, older standards compliant browser, whereas the second does not even appear when moused over or clicked on using open new tab.

'But blinded people tend to use other cues to achieve their interests'

Boy, do they - why, the blind would not be able to see a person's skin color at all, but thankfully, American society provides a wealth of cues to make sure that everyone remains aware of how race functions, even when one cannot see it.

And let us be honest, in the straightforward sense of googling for white or black teenager pictures - this entire posting is based on the idea that white people are not criminals, while enough black people are that it is worthwhile to filter black people due to that their propensity for being charged and sentenced in much higher numbers than, for example, the signficant number of underage drinking and drug using American college students. A group of such straightforward morals that even when one of them sexually assaults a fellow student, an appeal to cut them a break for just 20 minutes of action, in the memorable phrasing of a student's father, is successful.

Employers are unlikely to care about morals per se, bu they do care about the risk of stealing from them or assaulting a customer. That someone engaged in underage drinking or drug use as a college student probably does not suggest they would do either.

Blacks have higher offense rates for nearly all index crimes, by margins which range from 2x to 10x. That's just life in this country.

I'm not well versed in the statistics here, can you give a citation for those numbers please?

And are you comparing all whites vs. all blacks, or correcting for socioeconomic status? Presumably any particular employer cares not about the population crime statistics, and only about crime rates within the pool that their offered wage selects.

Yes. Even correcting for socioeconomic status.

You can examine the data compiled by the Bureau of Justice Statistics (what the BO administration has not pulled from public view) and the FBI's uniform crime reports. You can also look elsewhere, like the New York State Statistical Yearbook.

The socio-economic status of blacks differs from the rest of the population by less than is commonly bruited about. The segment consisting of salaried employees and small business is smaller, the patrician and influential sectors are a great deal smaller, A majority of similar dimensions in both populations consists of wage earners. The problem the black population has is that the troublesome lumpenproletariat is much larger - more like 15% of the total rather than 4%.

Thanks for the pointer. Are you referring to incarceration rates, or to estimates of the underlying rates of crime? I could only find the former when I made a brief search, but I have not dug deeply into this yet.

As Steven Pinker has pointed out in his The Better Angels of Our Nature: Why Violence Has Declined, page 94, black Americans do indeed commit more crimes, person for person. This isn't just a matter of more arrests and convictions -- and there may well be some anti-black racism in the justice system. Victim reports, and offender self-reports, also implicate proportionately more black offenders.

There is strong evidence drug laws are selectively enforced, to the detriment of Blacks.

'Sez who?

That aside, drug charges account for about 21% of the jail and prison population.

Not sure I'd use the words "selectively enforced", the causes could be structural biases that are not "selected" consciously -- but it's certainly the case that the black incarceration rate for drug offences is higher than the rate for whites.

https://www.hrw.org/news/2009/06/19/race-drugs-and-law-enforcement-united-states#_A._Arrests_and

"Relative to population, blacks have been arrested on drug charges at consistently higher rates than whites. In 1980 blacks were arrested at rates almost three (2.9) times the rate of whites. In the years with the worst disparities, between 1988 and 1993, blacks were arrested at rates more than five times the rate of whites. In the last six years, the ratio of black to white drug arrest rates has ranged between 3.5 and 3.9."

You do put forth a good argument for removing many of our drinking laws and ending the war on drugs.

Criminal history, however, tends to mainly be felons - you seem to be a racist though regardless of that. Carry on.

We should randomly assign black names to white people to overcome racial profiling based on names.

Trevon Trump.

This study illustrates again how fraud has become a core research skill for economists. 15,000 acts of fraud, to be precise. "Informed consent" is for chumps I guess.

I don't see any detrimental reliance on the part of the subjects that the resumes are real and accurate, so not sure where you're seeing any fraud.

Let's say you are hiring for a job and someone shows you two piles of resumes. One pile is all fakes and the other has only real resumes. Which pile would you look through first?

Let's add a third pile--people who have no intention of actually accepting any plausible job offer, but are just shooting off resumes to satisfy someone else's demands (social worker, parent, whomever).

Are those folks committing fraud?

I suspect some of the supposed 'evidence of discrimination' in studies such as this results from personnel officers checking-up on resumes more when they had unusual features, and discovering those resumes were fictional. One study I can recall made use of fake resumes with Ivy League degrees on them. I think the Ivy League schools hand out about 3,000 baccalaureate degrees a year. I doubt D'Shawn and Lakeisha were common given names in that set.

I wonder what happens when your resume claiming to be on the rugby team at Harvard lands on the desk of the guy who rugby captain at Harvard.

Only in the same sense that, say, sting operations, "Innocent Images" and civil rights testing are acts of fraud.

In the past, those with distinctive ethnic names that linked them to discriminated groups (Dino Crocetti, Allan Konigsberg, etc) adopted "white" names (Dean Martin, Woody Allen) to prevent discrimination. To what extent have blacks done or not done the same? Why, or why not?

(Of course, the whole paper is premised on names being distinctive by race - is this even true?)

Seriousuly, when will they drop the Kunta Kinte nonsense and get proper American last names like Jefferson and Washington?

Kinte is an actual family name from the Gambia River region and Kunta is an actual given name. Alex Haley bollixed his family history, so the Kunta Kinte referred to in the oral histories he consulted likely isn't his great-great-great-great-great grandfather. The identity of one of his great-great grandfathers is established. The man's name was George Lea and he was born in North Carolina in 1806 or thereabouts.

The lineage configurations in West Africa ca. 1780 aren't necessarily the one's there now, imported negroes did not come from a discrete set of tribes, and they've spoken English or creoles for 200-odd years. Black America is it's own culture and society. No need to latch on to anyone else's.

This fake resume study used the last names of Jefferson and Washington to indicate race and found no evidence of racial discrimination. To get the effect, you apparently have to use "ghetto" first names.

Lots of Asians adopt Anglo-Saxon type nicknames for the purpose of fitting in and getting ahead. There's no shame in it, and it seems to have worked out pretty well for them, generally speaking. Signals both conformity and flexibility, which are traits employers value.

Yes it's true. Ca. 1965, blacks tended to christen their children with ordinary Anglo-Celtic names, Biblical names, off-beat names that were still recognizably European (e.g. a family I knew that named their son and daughter 'Esquire' and 'Monique'), or with what were properly familiars, something white Southerners sometimes do (e.g 'Franny'). It was shortly after that that the practice of using ersatz Africanisant names (D'Shawn) or Arab names (Jamal) took hold. There have long been surnames whose holders were predominantly black (Washington, Jefferson, Kincheloe) or commonly black (McCollum).

That wasn't the only anomaly that showed up then. Thomas Sowell has written that when he was growing up, blacks tended to have accents similar to the surrounding white population, but that now nearly all blacks sound Southern.

"Thomas Sowell has written that when he was growing up, blacks tended to have accents similar to the surrounding white population, but that now nearly all blacks sound Southern."

What would be the mechanism for that?

First, discrimination by name is more a class issue than a racial one. And secondly, it's not, on the whole, an issue of last names, but first names.

A substantial number of African-American babies are given names in the European or Biblical tradition (Alexandra, Madison, David, Matthew) rather than African or Arabic (Aniyah, Makayla, Malik). I can't quote a good study but it's probable that the two sets of A-A parents differ in certain SES and related attributes. I do think the belief is out there that Malik is on average going to be more trouble, as an employee, than Matthew, even with the same skin color.

P.S. I was forgetting the Fryer-Levitt paper from 2004:

https://www.jstor.org/stable/25098702

"Among Blacks born in the last two decades, names provide a strong signal of socioeconomic status..."

There was a very recent study where they tested for discrimination based on race via name, but they did a separate study asking a different focus group to identify class and race markers in the fake names that were generated. This was designed to make sure they could filter on just the former and not the latter.

http://hsb.sagepub.com/content/57/2/168.abstract

Maybe they did it wrong, but they are adapting their methods.

Many large firms have automated the process of reviewing resumes, hence all the emphaisis on key words, etc. we should expect more automation in the future. How would a computer code implement fiscrimination by name without being itself tangible evidence of a crime?

It wouldn't.

But there is always at least one pass of human intervention before interview invitations go out.

It's simply not worth the risk for low wage employers to hire felons. They have enough trouble getting the non-felons to get to work on time and follow simple tasks. Last thing they need are violent criminals to manage.

In any customer-facing job, a felon can have negative value to the employer. Because the employer will be sued if the employee gets in a fistfight with a rude customer.

How can we fix incentives here?

In California, illegals get drivers licences now. But employers are not allowed to check licenses now unless the job is specifically for driving.

So, you can hire Juanita for your receptionist, and then send her out for more copy paper and be liable when you find out she doesn't have a license and has a wreck.

Its a neat system: Democrats gets the votes, and businesses bear the costs.

This is a very misleading statement. All employers in the United States, including those in the State of California, are required by law to complete Form I-9 for all employees and to keep copies of the IDs and official records employees submit to prove they are eligible to work in the United States. At the same time, employers are prohibited from imposing additional ID requirements above and beyond what the I-9 requires. Again, employers not only are allowed to but are in fact required by law to ask new hires for records to prove they are eligible to work in the United States.

Interesting point, Slocum. Do you think that a criminal record necessarily makes someone unlikely to be a good employment risk?

My apologies. I wish there was some way I could delete a reply. Have a great day!

The government and civil rights leaders are not supposed to be using non-discrimination law to institute quotas as per the supreme court.

This is a problem that's not difficult to solve: repeal employment discrimination laws and quit the practice of having lawyers second-guess businessmen regarding hiring decisions. You could have a ready return to the use of written examinations to recruit and promote and rely on tertiary schooling to teach specific skills rather than sorting the labor market generally. It would be injurious to the interests of the legal profession and the academy, two occupational groups that merit a good curb stomping.

At the same time as governments are forcing employers to ban the box, for example, they are passing occupational licensing laws which often forbid employers from hiring workers with criminal records. Banning the box and simultaneously forbidding employers from hiring workers with criminal records illustrates the incoherence of public policy in an interest-group driven system.

Everything circles back to your bugaboos. In New York, with few exceptions, licensure is limited to trust-invested occupations (e.g. private security & allied trades) and commonly trust-invested occupations where in legal consequences are at stake (law, land surveying, accounting) or health and safety are at stake (medicine, nursing, structural engineering). The requirements you might examine for elimination would be for cosmetology, trafficking in hearing aids, real-estate brokerage and appraisal, bedding manufacture, and ticket resales. Professional services, licensed or no, account for about 4.5% of value added in the economy.

Oh, well, at least you didn't turn it into a discussion of immigration law.

"repeal employment discrimination laws and quit the practice of having lawyers second-guess businessmen regarding hiring decisions."

Yes. The Duke Power case did, and continues to do, a lot of damage. If hiring decisions were contingent on objective capability testing (however imperfect it might be) rather than quotas disguised as "holistic evaluation", employers, employees, and customers would all be better off. As it is, its entirely rational to assume affirmative action commonly overrides merit. Must be incredibly frustrating at times to be a really competent black doctor.

As to the "box" specifically, I would think business would also have liability concerns. As with drug testing. One can almost hear the lawyers: "Your gross disregard in not taking the most elementary precautions to provide a safe work environment ..."

I am white with a "black" name. It led to an interesting interview in the pre-internet era. The black business owner's dissapointment was obvious on their faces. This was a distinctly black company where race was central to their brand.

As a result, i wonder sometimes how often my name has cost me a callback with whites.

Reminds me of the story about Rachel Dolezal's scholarship to study African American Art at a historically black college. Apparently when she got there the adminstrators were shocked to discover she was a blond, blue eyed, white woman. They were pissed they'd given a scholarship to a white chick.

I recently stayed at a hotel in NJ which "Bans the Box" for both public and private employers. I had personal property stolen from my hotel room. The only logical conclusion was that it was theft by the housekeeping staff.

My response and recommendation to others is to decline housekeeping when you are not present in the room and request specific services such as replacement towels etc. as needed. You can do this by leaving the "Do Not Disturb" sign up and perhaps leaving the TV on when you are not in the room.

This could lead to a reduction in employment opportunities for low-skilled workers but so be it.

Progressives that propose nonsense like BtB and $15 minimum wage must have stock in robotics companies.

'I had personal property stolen from my hotel room. The only logical conclusion was that it was theft by the housekeeping staff.'

Really? Did the hotel use a keycard system? Like this one, perhaps - 'The now infamous disclosure of the security flaws found in one of the largest electronic door locking system provider’s locks last July caught many hoteliers by surprise. The disclosure of the flaws and the apparent ease of how to breach the locks became an immediate media sensation, cumulating with an exposé on NBC’s Today show. The industry’s response to the problem was slow and measured, and in many cases it appeared that we were simply sticking our heads in the proverbial sand. The general public viewed the industry’s tempered response as a sign that it simply did not care about the safety and security of the guests and that we were simply out to take their money. Subsequent to that, when two hotels in Texas were breached, the public’s fears were confirmed and it appeared that the industry was ill prepared to deal with the problem.

The first thing that struck me about the problem was the way we found out about the breach. Cody Brocious, a hacker and senior security consultant with Accuvant LABS, was speaking at the annual Black Hat information security conference in Las Vegas, a conference frequented by security experts and hackers alike, and chose the opportunity to publicize the deficiency in the Onity door locking system. A further complication was the fact that the locks could be breached by what amounted to a inexpensive homemade device costing about $50. This meant that it did not require a sophisticated hacker to breach the system and that many would-be criminals could develop a device to breach this particular brand of hotel door locks. The disclosure went viral and was picked up by many online publications and social media outlets. Articles started appearing online and there was genuine concern of what this could mean to the traveling public if the issue was not addressed immediately. It should be noted that this is not the first time Cody Brocious has targeted the Onity locking system. In 2010, he successfully demonstrated how he could duplicate the magnetic swipe key card using a metro subway card.' http://www.hospitalityupgrade.com/_magazine/MagazineArticles/How-Secure-is-Your-Hotel.asp

Most Americans are reflexively conditioned to assume that they can tell who is a thief just by looking at them - which is extremely helpful to the significant number of successful thieves that happen to look just like the sort of person that makes such judgments.

You mean he should assume that some random person has figured out how to crack the security system and goes from room to room stealing people's watches and billfolds and gets past the security cam system as well, as opposed to assuming that employees who are on site every day, who have passkeys to all the rooms, and who enter all the rooms, are stealing his stuff.

Most Americans are reflexively conditioned to assume that they can tell who is a thief just by looking at them

Most Americans are making more sensible risk assessments than snotty expats living in Germany.

Theft is pretty common when it comes to staying at hotels. That's why hotels almost always give you a little safe in your room (and nag you about using it rather than just leaving valuable stuff laying around) as well as provide you access to the hotel's safe via the front desk and there's a whole bunch of caselaw about the hotel's responsibility for in room theft.

as opposed to assuming that employees who are on site every day, who have passkeys to all the rooms, and who enter all the rooms, are stealing his stuff.

The person most likely to do this IMO would not necessarily be someone with a criminal record but someone whose worked at the hotel for a long time (or in the industry) and over that time has figured out how the system works and the best ways to exploit its holes.

No, the person most likely to do this is the person who thinks your property is for the taking. Having been convicted of larceny, burglary, or robbery is a more reliable indicator of that than how long you've worked somewhere.

I don't know about banning the box, but IMO, all felony convictions, short of rape and murder, ought to be expunged after 15 years or so of living with no criminal convictions.
There are people out there with felony convictions on their record who for one reason or another have not got around to applying to get their records expunged. It should be automatic.

"Expunged"? As in destroying archives? That's an act of vandalism.

No, as in the legal process that is commonly referred to as "expungement". Do you know anything about criminal law?

I used to work for the court system in New York. We had no program for shredding records on appeal in criminal or civil cases. There were records not available to attorneys in the library due to considerations of confidentiality. Juvie records were 'sealed', not destroyed. I don't give a damn what inanities are fashionable in Canada.

WTF are you talking about?
There is a word "expungement". It has a legal meaning. It is the word I used. Look it up.

What I'm talking about is what we did with the records, Hazel.

We had no program for shredding records on appeal in criminal or civil cases. There were records not available to attorneys in the library due to considerations of confidentiality.

Yes. That's what I'm talking about. Expunged, set aside, sealed. These are all words meaning basically the same thing - your criminal record no longer shows the crime in question and you can legally deny having been convicted of a felony.

Are you bitching about semantics? Seriously?

Archives are destroyed all the time - unless you think that if you were employed at 19, and you are now 57, the company that employed you 38 years ago should still retain all its records concerning your employment. Assuming, of course, that the company still exists.

And of course, it is a matter of law that debts which are unpaid after bankruptcy are also expunged from such 'nebulous' archives after a set period of time.

The list goes on, you know - traffic violations are not kept in 'archives' eternally, to give a less than trivial example of where the state acts in a fashion to punish those violating its laws, but agrees that such violations are not required to be maintained for the life of the person that drove over the speed limit multiple times 4 decades ago.

Archives are destroyed all the time – unless you think that if you were employed at 19, and you are now 57, the company that employed you 38 years ago should still retain all its records concerning your employment. Assuming, of course, that the company still exists.

She's referring to records of criminal convictions, not to the employment records of private companies which may or may not exist any longer. No abiding institution has the manpower to maintain every slip of paper nor is every slip of paper of interest beyond a certain point. Hazel is insisting that even indexes maintaining records of public proceedings be destroyed.

No, I'm am saying tha records should be expunged automatically. There is a legal definition of the word "expungement". it happens all the time, and it does not involve actually destroying the record. it means the record is sealed.

https://en.wikipedia.org/wiki/Expungement

I have to explain these things to a person who "used to work for the court system in New York"????

http://thelawdictionary.org/expunge/

http://thelawdictionary.org/sealing-up/

No, you don't, because you don't know what you're talking about.

To blot out; to efface designedly; to obliterate; to strike out wholly

Blotting out, effacing, obliterating, and striking out do not necessarily imply physical destruction of all records of a crime. Do you have aspergers? Are you unable to understand figures of speech?

Maybe SOME records in some offices/databases get destroyed. But I highly doubt that anyone could physically erase all records of a conviction even if they tried.

Regardless, I'm not advocating the physical destruction of records. I'm advocating that records be sealed or made unavailable automatically after a period of years of no convictions for first offenders in certain categories of offenses. Which is pretty much what anyone with two brain cells to rub together means by "expungement".

It's Art Deco who doesn't know what he is talking about. Courts in New York (and most if not all other states) have the power to expunge court records. E.g., Hynes v. Karassik, 47 N.Y.2d 659, 664, 393 N.E.2d 1015, 1018 (1979). Physically what happens is that the records are sealed and cannot be accessed without a further court order.

Expungement and sealing are two related but different things. Expungement means the record is actually destroyed; sealing means the record just can't be accessed by every Tom, Dick and Harry. A sealed record can still be accessed by a variety of officials -- and if you're in court later on, can be read into the public record: "John, isn't it true you were convicted of grand theft auto...?"

A sealed record in Massachusetts can only be hidden but not completely denied. A prospective employer there has a right to know that you have one or more sealed records; they just can't know any of the details. So if asked whether you were convicted of a crime, and if you were but the record was sealed, you can't answer "No" -- you have to say "No record."

New York State law provides only for sealing, not for expungement. And even then not for convictions (except for possession of a tiny amount of marijuana).

Unless you count the "sealing" that simply means the police and prosecutors don't keep records of convictions for violations (infractions) as opposed to misdemeanors and felonies. But, yes, any Tom, Dick and Harry can walk into any courthouse in the Empire State with your name, date of birth and the fee and find out about your violation convictions as well as any misdemeanors or felonies.

Couple of problems with this study. There is a huge difference between employers in very competitive markets (like Silicon Valley High Tech firms) where the cost of discrimination is much higher compared to a government or government contractor employer that does well financially in spite of itself. Was there any control for the type of employer in the study?

Second, how much of the discrimination is committed by individual racist managers, rather than the problem being firm-wide?

Third, just because a "black named" candidate is invited for an interview, doesn't mean all is well from that point on. He could be a token candidate to make upper management happy - like the rule in the NFL where at least one black has to be interviewed for a head coaching job.

Finally, in non-competitive industries especially, in "white towns", I would guess the discrimination isn't limited to blacks. You could submit a resume/CV with an obvious asian name and that candidate would be less likely to get his foot in the door than an equally qualified white-named applicant.

'He could be a token candidate to make upper management happy – like the rule in the NFL where at least one black has to be interviewed for a head coaching job.'

Come now, Prof. Tabarrok is unlikely to have been in a position where he knows how that game is played - unlike, for example, the long time GMU dept. secretary interviewing for a part time position, who is already completely aware of how to get the desired result without breaking any of those burdensome rules that Prof. Tabarrok would like to do away with.

Meaning that while the effectiveness of any particular approach to trying to cure such a situation is open to reasonable debate, the reason that situation exists remains as repugnant as ever.

Silicon Valley firms probably don't have to worry much about this. The chances of an applicant having an education and job history that would qualify them for a tech job and also have a felony criminal record are very low.

Most Antidiscrimination laws nudge small business owners into discriminating against potential employees. Why would a bar owner hire a subordinate that has been armed by the government with enough weaponry to destroy your business. A small business owner wants to be the boss, but is walking on eggshells around these employees.

And If you think those laws only work justly, i have Unicorn poop nectar to sell you

It's sad when a policy helps white men with criminal records? Isn't that the point, to make having a criminal record less of a stigma?

I don't think you read the rest of that statement, its the helping them at the cost of hurting another group that's the problem.

An easier solution, make data on past criminal convictions difficult to access.

Institute a sliding scale. Convictions in the past 3 years are easy to check via a cheap background check. After 3 years of good behavior, convictions get stored in 'premium databases'. An employer could still access them if they wanted but would have to pay a higher price. After 10 years of good behavior, such data is again stored in an even more expensive database. Again if it is really important as a consideration for the job, employers could pay even more to access them but otherwise a worker with a conviction ten years ago will look as clean as a worker who was never convicted unless an employer is willing to pay a lot more to do a deep dive on him.

Of course you could always use alternative sources like Googling old news entries to try to get around this, but that increases the legal liabilities for larger employers since 'unofficial' databases will be less trustworthy

Just a test regarding non-posting in another thread.

...banning the box may benefit black men with criminal records but it comes at the expense of black men without records who, when the box is banned, no longer have an easy way of signaling that they don’t have a criminal record.

I similar conundrum has long existed for young women who are sterile. Recognizing that no sensible employer wants to hire a breeding woman because of the added costs occasioned by childbirth, a non-breeding woman is well-advised to signal her promise to remain child-free at the job interview or in her resume, perhaps by providing evidence of surgical sterilization.

Another ploy used to avoid the extra burden of breeding--one much fairer to young women of breeding age--would be to eliminate hiring altogether and deal only with unbenefitted contract workers, as is common in Silicon Valley and universal at Uber. Such a practice enables an employer to restrict pay to hours worked and job performance rather than forcing him and non-breeding men and women workers alike to subsidize a misguided gummint breeding program.

Ban the box policies forbid employers from asking about a criminal record is one of four similar examples of bad English usage in the OP.

It should read ...policies forbid employers to ask about ....

Recognizing that no sensible employer wants to hire a breeding woman because of the added costs occasioned by childbirth

There are currently 60 million women in the United States both employed and between the ages of 16 and 45. Must be an awful lot of not-sensible employers in this country.

Excuse me. 41 million women employed, out of a total population of 60 million women in those cohorts.

"I similar conundrum has long existed for young women who are sterile. Recognizing that no sensible employer wants to hire a breeding woman because of the added costs occasioned by childbirth"

What added costs? Because some women leave after having a child? Is this Japan circa 1980's where companies do 'lifetime employment' so changing jobs is a dramatic and traumatic event for everyone involved? In my experience there's a good amount of turnover in any medium or large organization. If your company is crippled because it cannot handle some turnover or temporary absences by employees who take a few months off then there's something wrong with the way you are structuring your labor force.

Are you talking about the health costs of paying for childbirths? Granted childbirth is relatively expensive and people young enough to give birth typically have few other medical costs equal to that. But most workers who get health coverage also demand to be able to cover their spouses and families. Just because you are employing men in their 30's and 40's, then, does not mean your health costs are not going to include paying for childbirths.

Boonton can't even acknowledge that an employee leaving for a few months imposes a cost on an employer. Nothing productive could result from a discussion of economics with an individual so dishonest.

A garbage company has hundreds of trucks. Every year they spend a huge amount replacing brakes. If only trucks that made lots of stops could have breaks that didn't wear out. I guess God is imposing lots of costs on the garbage company for setting up the laws of physics in such a way that repeated friction wears down rigid metal alloys. My perspective is that the trucks are a means of production which have pros (can carry a lot of weight, for example) and cons (need fuel, repairs and other inputs).

To the degree that humans are an input to a business, one has to deal with the pros and cons of them too. Part of that is the fact that free will makes humans fickle and difficult to predict. Getting huffy about this as a 'cost' is about as sensible as bragging about all the savings on brake pads you get by hiring humans rather than garbage trucks.

I would say that the box ban is working as intended if these employers are getting more applications than before, and hiring more convicts (of all races) than before. Racial discrimination is not directly relevant, so I'm puzzled at your confident conclusion that race filtering proves the law isn't working.

The motive was that the box was inconvenient to black male applicants.

Ban the box campaigns are, to my experience, less about increasing access for convicts per se, and more about ameliorating perceived disproportionate impact on black men. This is why the campaigns are coordinated primarily by political organizations focused on black issues, such as the NAACP and ColorOfChange.

If blacks are facing more discrimination because they are applying for jobs that they otherwise wouldn't have applied for, then blacks may still be better off.

Clearly, all jobs should be filled in a blind lottery. Probability isn't racist.

Not sure this should count as discrimination

"In particular, whites are more likely to be hired in white neighborhoods and blacks are more likely to be hired in black neighborhoods."

Possibly, employers see a better fit within the norm of the neighborhood.

Of course, this can be seen as discrimination. But not in the classical sense of harbouring a prejudice against a race, or judging a race negatively.

Rather, as a "local" attitude thing.

there is a mix up between two ideals.

1) Avoid irrational discrimination.
Even where groups differ, the argument goes: Since individual variance is many times higher than group differences, we should ignore group differences.

There is a problem that group still contain information. But this might be handled, or is arguably not as high.

2) Block even rational discrimination.
This is a moral justice stance that ignores the self interests of the involved parties.
Of course this leads to endless efforts to circumvent any regulation that is irrational to follow.

Advocates usually are inside their heart, justice and moral fighters. This means they will have the mindset (2) which ignores the rationality issues. Which naturally leads to inefficient policies.....

What else is the Obama Administration planning for its last few months in power?

Rather than ban the box a plausibly better policy would be to require the box. Requiring all employers to ask about criminal history would tend to hurt anyone with a criminal record but it could also level racial differences among those without a criminal record. One can, of course, argue either side of that tradeoff and that is my point.

Something you might have missed, Alex.

Many African-Americans could defeat the 'resume name filter' by simply using a different name. Chekilla Williams can become "Cherry Williams" or "Shirley Williams" on the resume. Once called for the interview she can happily explain, should anyone really care, that while her legal name is Chekilla she goes by Cherry. Granted that won't get her the job if the organization is set to discriminate against blacks but if the initial reviewer of resumes is exhibiting an unconscious name bias it would get her foot in the door and she wouldn't have to ever really change her name or use a 'white' name in day to day conversation. If she felt the need to be super honest about such things she could use "C. Williams" on her resume.

If the name bias, then, was a real burden for African-Americans one would expect more and more African-Americans to exploit that 'trick' to overcome the problem. Yes some might object on ideological grounds that they shouldn't have to 'whiten' their names, even informally but here you have a selection effect. If the advantage to a 'white name' is large and increasing successful 'name shifters' will take jobs that are lost to those who are purists.

In fact, you could argue that a way to measure bias might be to look at both white and black baby names by generation. The more distinctive names become the less likely there's a huge discrimination premium on signalling that you are non-white.

Fallacy of composition. Any individual employer might avoid dealing with people who have criminal records -- but society as a whole can't. Last time I checked, we can't send them to Australia. And they (and in many cases, their kids or families) still have to eat, wear stuff and sleep and keep their things indoors. Many will return to crime anyway, but some want to try an honest living first.

In theory, we could set up workhouses, or otherwise just have the government be the employer of last resort for these people. In practice, we're a society ideologically bound -- for good reason, in my own opinion -- to private decision-making wherever possible. Thing is, when we know something has to be done anyway, we tend to launder it through private entities. Too many government checks would look bad. Not to mention (U.S.?) politicians don't want to be seen as raising taxes or cutting services, so instead they create rights -- unfunded mandates which never appear in any budget.

Whether that's better or worse is another matter. The point is, it's the norms we have now. Hence the emphasis on "private" solution with background regulation like "Ban the Box".

But again, it's got to be handled somehow. No politician, however freedom-loving, is going to say "Bugger it, if criminals released from prison can't persuade risk-averse employers to give them a chance they made their own bed and they can bloody well lie in it." People get ugly when -- for whatever reason, including their own fault -- they can't earn a legitimate living. Not angry blog posts and voting for Donald Trump ugly either.

Most employers don't avoid everyone with a criminal record. They are selective about who they won't hire, because limiting your labor pool is a competitive disadvantage.

That means that someone with a misdemeanor can usually find someone who won't exclude them on the basis of their crime. It might not be a job they want or are qualified for. The most popular crimes in America are DUI/DWI and possession of drugs. Lots of employers don;t exclude applicants from positions for these crimes. Admittedly, someone with a serious felony (murder, rape, manslaughter) will have a harder time of it.

So I deny your implication that Something Must Be Done. We can't generalize from the fact that one particular employer won't hire one particular criminal to the idea that no employers anywhere will hire any criminals ever.

Maximum Liberty, my understanding is that especially given (1) how much damage any employee can do, including getting the employer sued for negligent hiring and (2) the post-Great Recession new normal, employers feel they can much better afford to exclude some candidates than to take a risk on someone who has a demonstrably higher likelihood of committing a crime and probably is no more qualified than plenty of hungry candidates with clean records.

As the saying goes: "No one ever got fired for hiring IBM." Or a job applicant with no criminal background.

(There may be exceptions for really minor offenses like spitting on the sidewalk or swearing in public. But I doubt DUI/DWI is one of them -- drunk driving isn't seen as the lark it was a few decades ago. [And if your employee gets convicted of DUI/DWI again, s/he and you would have to jump through hoops -- probably time-consuming hoops -- just to get approval for him/her to drive to and from work let alone on the job. That approval may not even be possible if a state line has to be crossed [even if an even number of times, ie the applicant lives in the same state as you, which doesn't always happen in certain metropolitan areas].

(As for drugs...do you know how many employers drug test even for jobs that don't seem to need it? Not to mention how many companies pride themselves on being "drug free workplaces"? Not to mention some folks who get hooked on drugs end up dealing [and some folks who pled guilty to simple possession may have actually dealt too]...and drug dealing on your premises invites all sorts of trouble, legal and otherwise.)

Last but not least, employers like workers who follow rules. A willingness to break the law is a risk factor for not following instructions. Not to mention what Ed and Daniel Weber said above.

Jeffrey Deutsch, your assumptions about what employers do for misdemeanors are demonstrably false, but not easily demonstrably false. The hiring criteria that large companies use for making decisions on employment applications almost never boil down to "no criminals here." The problem is that I can;t point you to a publicly available example because those same large companies don't generally publish those to the world, for fear of exacerbating litigation risk and revealing competitive advantages.

So let me put it as a hypothetical. Let's say you are a big box retailer, where your margins are paper thin because the biggest box retailer is a bit more efficient than you and keeps undercutting your prices. You are going to be looking for every advantage you can. You will not be terribly interested in excluding people with a DUI that is five years old from positions that don't require driving, because it shrinks your labor pool and increases your time to hire. This kind of high-turnover position is built with the assumption that its occupant will have a hard time following rules. And the risk of repeat DUI is not present on the job. That's the reality.

Maximum Liberty, I myself said that employers overlook minor offenses. We just have different perceptions of how minor an offense has to be to be overlooked by enough employers not to be a handicap in the job market.

Yes, as an employer I'd be looking for every advantage I can. Thing is, this is 2016, not 2006. In the wake of the Great Recession, I have my pick of great applicants, including lots of folks whose careers bottomed out or haven't begun yet. More college graduates fail to launch than we might think.

So in my application pile -- which, since this isn't a high-skilled occupation, is quite think -- I can find plenty of folks without DUIs and it won't take any longer to hire one of them. And given how long it takes to skim all these resumes, I want my labor pool shrunk by any defensible means.

I'll grant you that a five year old DUI is not quite a bad as a one year old one.

But it still matters. There's a non-trivial chance that the applicant may relapse and then have to call me: "Uh, could I have a few days or a week or two off until I can arrange a ride to and from work? I just got arrested for DUI and my driver's license has been confiscated pending trial." Or even "I just got convicted and my license has been suspended. Of course I'll ask the court to allow an exception for driving to and from work...the next open hearing date is three weeks from now but I'll try to get a ride to and from work before then. Oh yes, and I'll have to ask you to write a letter confirming I work for you."

Keep in mind that many retail jobs work later than the busses run.

And no job these days is too low for things like not following rules to matter. Even retail clerks handle not only cash but also payment cards and checks (and check ID sometimes for paper checks), enroll customers onto mailing lists, learn trade secrets, etc.

I'm not saying I necessarily would exclude the five year old DUI man. But I'm sure many will -- especially if they know about the DUI right from his application.

By the way, you previously mentioned:

"That means that someone with a misdemeanor can usually find someone who won’t exclude them on the basis of their crime. It might not be a job they want or are qualified for."

For one thing, people don't need to be totally excluded by 100.00% of employers to have serious problems in the labor market.

For another thing, why should jobs they're not even qualified for count? They're unlikely to be hired for them, probably wouldn't last in them anyway not to mention do we even want such mismatches?

The median age of convicts upon release or parole is about 34 years. A man 34 years of age had in 1993 a future life expectancy of about 41 years. There were over the period running from 1972 through 2012 about 17 million prisoners released, of which about 90% would be male. There were in 2013 a mean of about 42 million men over the age of 16 and not currently employed. Somehow, I do not think 15 million of them were ex-convicts. People manage.

"Any individual employer might avoid dealing with people who have criminal records — but society as a whole can’t. Last time I checked, we can’t send them to Australia. "

I believe that having a criminal record is one of the strongest predictors of starting a small business.

Interesting point, Slocum. Do you think that a criminal record necessarily makes someone unlikely to be a good employment risk?

When hiring you are looking at the employees likely valued to the firm against the likely cost. Some careers may have very high costs for hiring felons, particularly with certain crimes on their record (e.g. anything with finance). Other crimes or other jobs will not be so picky.

The end result is that employers willing to hire the less desirable employees will be able to do so for less.

After all, many employers would prefer to have all Ivy Leaguers with well connected parents, but supply and demand eventually make a price that does not result in only Ivy Leaguers getting employed even at elite firms.

On the bottom side we have the same things. Many firms preferentially hire ex-cons because they have fewer options and the firm faces few liability risks; this results in firm getting cheaper labor while everyone else pays slightly more for criminal history free employees.

The choices we make in life have consequences. If skipping a Spanish test can cost you a job and decrease your lifetime earnings by a half-million bucks, I see little reason why I should not get some premium for managing to avoid interacting with the criminal justice system. Call the box a "nudge" and be done with it.

Bob, labor markets don't always work the same way (most) goods markets -- especially spot markets -- do.

Yes, there are primary and secondary labor markets. But even in the secondary markets, there's a limit to how low employers will go. For one thing, many employers like paying everybody at a given level the same amount, or having a clear reason why someone is being paid more or less. Like "Bob has 5 years' experience and also does Microsoft Office and Outlook like nobody's business, so he gets more." Not "Joe is an ex-pimp and drug dealer so he gets less."

Among other things, whatever people may say -- even truly feel -- to get a job, once they get on the job, on a day to day basis few can keep accepting earning less than their co-workers. Also, the co-workers may wonder: Is the boss going to start firing us and replacing us with ex-cons to save a few bucks?

Not to mention, even in terms of ordinary efficiency wages paying very little is penny wise and dollar foolish. When hiring a convicted criminal, even if you can get him or her for less do the expected wage savings (over how long, especially given many criminals are unreliable anyway) equal the expected (risk-adjusted) costs like lawyer's fees, bad publicity, even settlements and judgments?

America may have been the Land of Second Chances, but over the last few decades we've morphed into an unforgiving -- not to mention risk-averse -- Zero Tolerance Society. Many upsides have come with the litigation and mass media revolutions, but one of the downsides is that even some choices you know are reasonable, are going to be judged by people who know nothing about the situation and are going to look at things out of context, focusing on the worst.

So even if the employer -- and God -- knows that hiring a particular ex-con is a good risk all things considered, the employer knows that if something happens they'll be judged not by God but by a judge and jury picked precisely for their lack of knowledge, and said judge and jury will be harangued by a well-paid and highly-motivated lawyer who knows how to paint white into black (and vice versa). Not to mention the jury pool will come from a public which reads the newspapers, watches TV and reads Facebook, Twitter and all sorts of clickbait headlines just like electrodes on their limbic systems.

"Can you believe they hired someone CONVICTED OF ASSAULT!!! Just to SAVE A FEW DOLLARS! Ladies and gentlemen of the jury, will we let GREEDY COMPANIES PUT INNOCENT PEOPLE AT RISK???"

I just can't see any wage savings that are worth risking that.

Yes, of course choices have consequences. We can say "You made your bed, now lie in it" -- up to a point. That's why we have forced savings and insurance programs, bankruptcy (not to mention as generous as the US bankruptcy laws are), and of course somewhat more open-handed welfare programs than we otherwise would. For reasons including but not limited to simple fellow feeling and morality, we can't let people stay at the bottom with no hope whatsoever -- even if they did put themselves there to begin with.

Trust me, you don't want to share a country let alone a town with people who have nothing to lose. Let alone people who already have experience with hurting others and taking and breaking things.

Jeffrey, to re-iterate, roughly 15 million releases from prison. The Bureau of Justice Statistics is not indicating what share of the inflow have previous prison time. New York State data suggest that about 55% of their stock of prison inmates have no previous felony convictions. The stock data will understate the share of the flow if the recidivists serve longer sentences, which of course they do. So, 8 million ex-convicts knocking about would be a conservative estimate.

Now, you have 42 million men over 16 not currently employed. About 14 million are over the age of 65. So, you have 28 million men not employed of working age. Of these, 5 million are collecting Social Security Disability, which requires a work history to qualify. That leaves a remainder of 23 million. About 3 million more are working aged men drawing SSI (which might include some ex-convicts). About 7 million departed the labor force to attend school. Another 3 million are short term unemployed.

That leaves a residuum of 10 million men under 65 who are not working, haven't been working for at least 6 months, and did not leave the labor force due to enrollment in school or a disability adjudication. You're contending that north of 70% of these people are unemployable ex-cons?

Art Deco, I would not be surprised if a disproportionate, even large, part of the long-term unemployed (including those who only became long-term unemployed within the past eight years or so) have significant criminal records.

Jeffery,

About a quarter of the guys I went to high school with are dead or have served time. I am quite aware of what happens to people with nothing left to lose.

What I have seen, repeatedly, is that certain industries like cleaning (of non-sensitive places), construction, and delivery often prefer to hire those with criminal histories. Ordinary workers have many options and they are highly likely to move on to more remunerating positions quite quickly. Former criminals, precisely because they face hiring discrimination, are less likely to look for other jobs or believe that the work is too hard for the wage being offered.

The net result is that people who have criminal records are concentrated in low wage, low desirability fields. Employers in those fields do not have to pay as much because their workers cannot go seek alternate employment as bank tellers or even generic office workers. Restaurateurs, for instance, have a long history of disproportionate hiring of convicted felons to bus tables and clean after closing. This is aided by the Work Opportunity Tax Credit, which gives not only a stamp of governmental approval to the hire, but makes the economics even better.

Felons are not generally unemployable, they do, however, forfeit the ability to be employed easily in a lot of places. Like anyone, if you have fewer jobs which you can match into, your wages go down. Again, in what world does it make sense that the *marginal* cost for flunking Spanish is higher (missing the 4.0, not getting the top tier consulting job) than having an armed robbery conviction (bumping down from a accounts receivable clerk to a janitor)? I have vouched before for old friends who applied to sweep the floors and wash the restrooms; they got the job and kept because the liability risk was deemed by the bean-counters to be far less than we got back in tax credits (though I did have to vouch that they were not going to do something dumb). We were not legally allowed to employ them in my division, but then getting into my division required passing multiple background checks (no drug use allowed).

Now do convicted felons have trouble finding work? Sure. But a lot of the behavioral and personality traits that get you into felonies are also ones that make you a poor employee: poor control gratification delay, shoddy decision making, poor work ethic, etc.

The truth is whatever problems convicts have with employment started before they were arrested and will not be removed merely by making the process murky.

About a quarter of the guys I went to high school with are dead or have served time.

You're either fairly elderly or you've an interesting circle of friends. Less than 10% of the male population over 16 have prison time in their history and death rates are such that 3/4 of the male cohorts born ca. 1955 are still alive.

Hello Bob,

If I understand you correctly, you're saying that most convicted felons either [a] can't get and keep jobs anyway because they're typically unreliable or [b] can get and keep jobs even without Ban the Box, just lower-paying and nastier ones.

With regard to [a], according to a couple of job counselors I've listened to ex-cons are actually more highly motivated to find and keep jobs. Obviously that's not true of all or even most of them, but it appears to be a tendency.

With regard to [b], you certainly seem to know what you're talking about. I can see how specific jobs, and even sectors can effectively be set aside for ex-cons (and folks like illegal aliens).

Now here are my concerns:

(1) If an ex-con who, say, is qualified to wait tables, host or even help manage a restaurant has to settle for bussing and cleaning after closing, that's obviously better than no job at all. How much better?

(2) How many ex-cons are underemployed this way?

(3) How many ex-cons who are employable are in fact totally unemployed thanks to their criminal records?

PS: My full first name is actually Jeffrey, but please feel free to call me Jeff.

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