New York Times: Ban Background Checks For Applicants


“Sixty-five million Americans have criminal records that might cause them to be denied jobs, even for arrests or minor convictions that occurred in the distant past,” writes The New York Times editorial board.

As someone who used to do background checks for a living, I’ll admit that the permanence of our backgrounds in this digital age often troubles me. It used to be that if you made some mistakes you could move on and leave your past behind you. Get a fresh start. That’s not possible any more, for better or worse.

I’m not sure there’s a solution to the problem. And I certainly don’t like what the Times is proposing:

The problem, however, has become so acute that a growing number of states and municipalities have explicitly prohibited public agencies — and in some cases, private businesses — from asking about an applicant’s criminal history until the applicant reaches the interview stage or receives a conditional job offer. In addition, many jurisdictions now require employers to show that the disqualifying offenses are directly related to the position in question.

Laws or administrative directives of this nature have been enacted in 50 cities and counties and in eight states, according to a recent analysis by the National Employment Law Project, a research and advocacy group. Other states are joining the effort to remove unfair barriers to employment. Bills that would give ex-offenders a fairer shot at getting a job are pending in six state legislatures: California, Michigan, Minnesota, New Jersey, North Carolina and Rhode Island.

As much sympathy as we might have for people guilty of mistakes and indiscretions in their lives, they’re still guilty of those things. We’re going to institute laws to prohibit employers from making decisions based on considerations of those records?

The problem with that proposal is it seems predicated on the idea that employees have a right to a job with a given employer. But that’s not how freedom of association works.

The same right to association which prohibits laws banning union membership, as an example, should also prohibit any law restricting an employer’s right to a thorough and unrestricted background check. Not only should employers be able to look at backgrounds, but they should be able to make whatever decision they want based on those backgrounds.

Because employers should be allowed to associate, or not associate, themselves with whoever they want.

Yet, that’s not how it is even now. There are all sorts of laws regulating how employers can use background check information. You can’t fire someone if you discover they’re a criminal after you hire them unless they lied on their application, for one thing, which is why applications always ask you if you’ve ever been convicted of a crime.

It’s as though we’re moving toward some European-style view of employment as an entitlement. That’s not how it should be.

When employees are given no choice but to work for their employers, we call that slavery. So how is employers forced to hire employees not slavery?