Many violations of ban-the-box policies are straightforward: The employer just didn’t remove questions about criminal history from its job-application form. Ninety-four percent of complaints to the D.C. Office of Human Rights were about employers who had criminal-background questions on their application forms. In the remainder of cases, alleged violations took place during the interview or offer process. That’s a trickier kind of violation to identify and prove, according to Palacio. “Those are more nuanced, and those can easily keep happening,” she says, in contrast to the violations related to application questions, which are simpler for both employers and job seekers to identify and fix.
In states and localities whose policies apply only to public employers, governments typically ask their human-resources agencies to remove criminal-history questions from state job applications, but many of them don’t establish complaint or enforcement processes.
In the case of California’s previous ban-the-box law, which covered only the public sector, governments in the 10 largest counties and the 10 largest cities in the state had successfully removed criminal-background questions from their job applications by the date the law took effect, according to a National Employment Law Project survey. But Beth Avery, an attorney with NELP, which advises localities on fair-chance-hiring issues, acknowledges that even in the public sector, compliance likely isn’t perfect. “I’m sure that things fall through the cracks,” she says, depending on internal government support for the policies.
In general, interpreting data on ban-the-box compliance can be tricky. “You can’t assume that a lack of complaints, for example, means high compliance,” Avery says. “It could mean a lot of things.”
People overseeing ban-the-box implementation assume that low numbers of complaints don’t indicate better compliance; instead, possible violations are likely being underreported. Kevin Kish, who leads California’s Department of Fair Employment and Housing and has found the state’s fair-chance hiring complaint numbers to be lower than he anticipated, reflected on attending a recent event for the reentry community in South Los Angeles: “I could count on two hands, of the hundreds of people there, the number of people who knew about this.” Kish recently hired an assistant deputy director of education and outreach to increase awareness across the state.
Changes in staffing are also possible in Austin, where a local news report last year found that the city’s human-resources department, which is tasked with outreach and enforcement of ban-the-box, had failed to resolve the handful of complaints that had come in since the law went into effect in 2016.
Greg Casar, the city councilman who shepherded Austin’s measure, says he’s pushing the city to move enforcement of fair-chance hiring to a new civil-rights agency, which would “not just focus on education and taking reactive complaints,” but also “do proactive enforcement” and gather more comprehensive data, with the goal of making fair-chance hiring a norm among the city’s employers. “We’re never going to get fair-chance hiring fully implemented based on enforcement,” Casar says. “The point is to create a culture in the city that it’s just the right thing to do.”