Wednesday, March 3, 2021: Democrats Introduce Workforce Justice Act in Congress Seeking to Federally Mandate “Ban-the-Box” Compliance
Democrats re-introduced the Workforce Justice Act, House Bill 1598. Rep. David Trone (D-Md.) previously introduced a similar bill in 2020 during the 116th Congress. The bill seeks to deny certain types of federal financial assistance to those states which fail to pass statutes prohibiting private employers from asking about the criminal history of job applicants. Legislation seeking to prohibit employer pre-offer inquiries of a job applicant’s criminal justice history are often referred to as “Ban-the-Box” legislation because employers checking the criminal histories of applicants for employment often require those applicants to check a box if they have the described criminal justice history about which the application form makes inquiry. Specifically, the bill would require the states to implement prohibitions within three years after enactment of the bill. If a state were to fail to implement the changes HB 1598 would mandate, the state would become ineligible for federal criminal justice assistance grants provided for personnel, training, equipment and supplies for state, local and tribal police forces.
As employers know, “second-chance hiring” has been pushed by civil rights advocates to address higher minority unemployment rates given the disproportionate imprisonment rates among minorities, to reduce recidivism rates among parolees (2/3rds of whom are rearrested within 3 years of release from prison), and to provide individuals with a criminal past a better chance to find work. “Ban the box” laws have recently gained some popularity, to the point that thirteen states and the District of Columbia now have laws prohibiting private employers from asking certain criminal history questions on job applications.
To date, there is no federal prohibition against asking job applicants about their criminal history on written application forms. While time ran out on the 116th Congress to take action on the Act when it was previously introduced, it’s early introduction in this 117th Congress signals that Democrats are going to take another run at this legislation. At this time, however, the legislation has little chance of succeeding in the United States Senate, even if it were to pass in the House of Representatives. This is because of the composition of the United States Senate and because of the current Senate Rules which would require any such legislation to pass on a bi-partisan vote of 60 or more Senators.
This checkerboard of states with “Ban-the-Box” legislation could very well continue if this does not pass in the Senate, adding to the many challenges multi-state employers face in determining which states (and in some cases, municipalities) have passed the legislation.