This week, the White House announced a pending executive order instructing the Office of Personnel Management to “delay inquiries into criminal history until later in the hiring process.”

This delay, known as “banning the box,” eliminates asking an applicant if he or she has a criminal record.

The federal government certainly has good reasons to do so, but that does not mean it should mandate that all companies to do the same, such as in New York City, where a new law bans all employers from asking an applicant about his or her prior criminal history.

Employers (including the federal government) have many good reasons for asking potential employees about their prior criminal history. For instance:

  1. Having a criminal conviction often has relevance to job function. If someone has been convicted of theft, a business might not want that person at the cash register.
  2. Businesses are often on the hook in tort law if they put their customers in danger and harm occurs. For example, hiring a person convicted of multiple assaults might be dangerous if that person is going to be in a high-stress, client-facing job.
  3. Regardless of whether a company incurs liability, a business has its reputation on the line and could be harmed in the court of public opinion if it hires a released offender who engages in misconduct. There may be other good reasons why a particular business would not want to hire at least certain categories of released offenders if not all released offenders.

For these and no doubt other reasons, employers should be entitled to all available information about an applicant before making a hiring decision. “Banning the box” should be voluntary.

A Reason to Change the Application Process

Choosing to change its application procedures so as not to ask about someone’s past criminal history on a job application for federal employment is well within the authority of the executive branch. And there are also good reasons why the White House might want to remove asking for prior criminal record.

Asking applicants if they have a criminal history is a controversial issue, with some saying that it is simply a way to enforce discrimination against people with a criminal record. A decades-old conviction for small drug offenses or assault, the story goes, might not be relevant to the job function in question.

It could also help increase the chances for citizens with criminal pasts to re-enter the job market and society. After all, if released offenders cannot obtain legitimate employment, it is far more likely that they will return to a life of crime and pose a threat to public safety.

As President Obama noted, “[i]f the disclosure of a criminal record happens later in a job application process, you’re more likely to be hired.”

While there may be many explanations for why this is so, one reason might be that once you interview someone and are favorably impressed with his skills and demeanor, it is more likely that once you learn about his criminal record, you may be willing to take a chance on him or be more receptive to his assurances that he will stay on the straight and narrow.

A Choice for an Employer to Make

While it is laudable that an employer might want to hire a released offender, that choice should be left up to the employer. No employer should be compelled to hire a released offender or be subject to liability for refusing to do so.

According to the Justice Department, 60-75 percent of released criminals fail to find a job during their first year of release.

It is certainly a laudable goal to seek to assist those with criminal backgrounds to reintegrate into their communities and become productive members of society, and to the extent the federal government is trying to help with this, kudos to it.