Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘criminal records and hiring’

“Ban the Box” laws don’t work. So why do lawmakers love them so?

Elected officials across the aisle agree in applauding “ban the box” laws. Too bad they don’t work, I argue in my new piece at Cato. Earlier research found the laws didn’t improve employment of ex-offenders and actually harmed some groups. Now a new study finds no benefit for recidivism — and once again, harm to some groups.

With studies finding such laws ineffective even as to government hiring, “how much less justification is there for using them to constrain the freedom of private employers that have never incarcerated anyone”? Especially when directed at non-government employers, such laws “are a triumph of feel-good sentiment over economic rationality, practicality, and in the end the interests of the intended beneficiaries.” Whole piece here.

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Discrimination law roundup

  • In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
  • Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
  • Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
  • “Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
  • “Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
  • Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]

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January 8 roundup

  • Lenawee County, Mich. authorities have posted condemnation notices on Old Order Amish farmhouses over their use of outhouses rather than modern septic systems as required by code. Dispute now heading for court [Tom Henry, Toledo Blade]
  • Baltimore Mayor Young promotes white-van-abduction urban legends, police misconduct transparency, Montgomery County is watching drivers and more in my latest Maryland policy roundup [Free State Notes]
  • Following outcry from activists, Facebook disables as misleading ads some trial lawyer ads soliciting plaintiffs to sue over purported side effects of HIV prevention drugs [Tony Romm, Washington Post/Toronto Star, Peter Lawrence Kane, The Guardian, WTHR]
  • From Lowering the Bar, legal things that actually did happen in 2019;
  • 20 years ago I warned that by trying to dictate employers’ choices, a Wisconsin law might work to impede convict re-entry into the job market rather than encourage it [Reason, from its archives]
  • If county and city law enforcement officials have discretion not to charge low-level drug offenders, do they also have discretion not to charge low-level gun offenders? [Cam Edwards, National Review on Virginia battle over “Second Amendment sanctuary” resolutions]

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Discrimination law roundup

  • Don’t try to pull a “back where she came from” tirade at a private workplace [EEOC guidance (“potentially unlawful” for employer to allow); Daniel Schwartz]
  • “B.C. groin waxing case is a mockery of human rights” [Rex Murphy, National Post] Also from Canada: “Single dad facing Human Rights Complaint for asking the age and gender of a potential babysitter” [Justice Centre for Constitutional Freedoms, related case]
  • Canada continued: inquiry on missing and murdered indigenous women “strips the word genocide of meaning” [Jonathan Kay, Quillette]
  • More evidence that “ban the box” laws restricting criminal record inquiries “induce firms to engage in statistical discrimination that negatively affects the employment prospects of minorities.” [Peter Van Doren/Cato, earlier here and here]
  • Disparate-impact watch: Fifth Circuit rules, over a dissent, that landlords do not violate the federal Fair Housing Act by declining to accept Section 8 rent vouchers [opinion and denial of rehearing en banc (7-9) in Inclusive Communities Project v. Lincoln Properties; earlier here]
  • “Agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular.” [David Bernstein]

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Occupational licensure reform advances

“The Latest On Occupational Licensing Reform: At the federal level and in the state of Michigan, there have been encouraging moves toward market liberalization.” [Thomas A. Hemphill and Jarrett Skorup, Cato Regulation mag] Related: George Leef, Regulation (reviewing “Bottleneckers” by William Mellor and Dick M. Carpenter II). “Florida Lawmakers Are Fast-Tracking Licensing Reforms” [Boehm] “But sadly Elias Zarate is no closer to being a barber, because he still doesn’t have a high school diploma. And, yes, that matters for some reason.” [same] “Inside the Insane Battle Over Arizona’s Blow-Dry Licensing Bill” [same] “Tennessee has imposed nearly $100K in fines for unlicensed hair braiding since 2009” [Debra Cassens Weiss, ABA Journal] Licensing bars on applicants with criminal histories, often related hardly at all to the risks of crime in licensed occupations, make re-entry of offenders harder [Arthur Rizer and Shoshana Weissmann, The Blaze] A Twitter thread on board certification of music therapists, which are licensed in 10 states [Shoshana Weissmann et al.] Study: “optician licensing appears to be reducing consumer welfare by raising the earnings of opticians without enhancing the quality of services delivered to consumers.” [Edward J Timmons and Anna Mills, Eastern Economic Journal]

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Liability for abetting workplace bias

“Like the non-discrimination laws in a number of other states, including California, New Jersey, and Illinois, New York State’s Human Rights Law (‘NYSHRL’) contains a provision extending liability to those who aid and abet discrimination or retaliation.” The kicker is that New York’s law can impose extraterritorial liability on actors outside the state — such as a national moving and relocation firm that required by contract that its local contractor exclude from employment persons with certain categories of criminal convictions, and is now facing ban-the-box-related liability over that to New York plaintiffs that it did not itself employ. [Jodi Frankel, DLA Piper Labor Dish]

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Ban the Box laws backfire badly, cont’d

“‘Ban the box’ laws, which bar employers from asking job applicants whether they have a criminal record, may be harming some of the people they are intended to help….several recent studies have found that black men, even those without a criminal history, are less likely to get called back or hired after a ban the box law is put in place.” Following a push by advocates, 29 states “prevent state and sometimes city and county employers from including a criminal history box on job applications. Nine states have extended the ban to private employers as well.” [Rebecca Beitsch, StateLine/Huffington Post] The effect was already being noticed in the policy literature a year ago. Earlier here.

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Seattle landlords aren’t to know about would-be tenants’ criminal records

“The Seattle City Council approved an ordinance Monday that will mostly prohibit landlords from screening tenants based on their criminal records. Landlords will be barred from excluding people with records in advertisements. When taking applications, they will be barred from asking about records. And in choosing tenants, they will be barred from rejecting people due to their records.” [Daniel Beekman, Seattle Times] Now with more re-education: “Any participation in this ‘conciliation’ process also mandates landlords attend anti-bias training courses.” [Christian Britschgi, Reason]

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Labor and employment roundup

  • Rhode Island bill would lock in existing public employee union benefits until new contract reached. Why bargain in good faith? [Providence Journal editorial]
  • NYC Mayor De Blasio signs “Fair Work Week” package imposing on fast-food and retail employers various constraints typical of unionized workplaces; meanwhile, court strikes down 2015 NYC law imposing punitive terms on nonunion but not union car washes [Seth Barron, City Journal; Ford Harrison on new legal package]
  • How reliable a guide is Paul Krugman on the minimum wage? [Scott Sumner and commenters] “Thing is, there has been an awful lot more empirical research on the effects of minimum wage increases than this one paper by Card and Krueger.” [Thomas Firey, Cato] “New Paper Shows Workers Commute Away From Minimum Wage Rises” [Ryan Bourne, Cato]
  • House hearing: “Illinois worker recounts ordeal to decertify union” [Sean Higgins, Washington Examiner]
  • New Mexico: “‘Ban the box’ issue not so clear cut” [Joel Jacobsen, Albuquerque Journal]
  • In which Jonathan Rauch and I for once disagree, but still a good survey of ideas for reinventing unionism (works councils, Andy Stern/Eli Lehrer, Ghent, etc.) [The Atlantic]

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