A nationwide political movement has spent years asking employers to think outside the box.
In Missouri, that box just got a little smaller.
Gov. Jay Nixon signed an executive order April 11 prohibiting state agencies from asking about a job applicant's criminal history on an initial job application.
"The action I'm taking today will ensure that state government continues to be a model for increasing economic opportunity, improving public safety and strengthening communities," Nixon said during a visit to the St. Louis Agency on Training and Employment, where he signed the order. "This is about fairness. Giving folks a fair chance to redeem their lives, support their families and make a contribution to their communities is a value we share as Missourians and as Americans."
Civil-rights organization All of Us or None started the official Ban the Box campaign in 2004. But formerly incarcerated people and their advocates had been fighting to outlaw employers practice of asking about criminal history on job applications even before then.
Hawaii became the first state to ban the box in 1998. Six other states and Washington, D.C., have followed suit. Missouri legislators have filed ban-the-box bills that would apply to all employers in the state again this year, but with little time remaining in the 2016 legislative session, those proposals are unlikely to advance past the committee stage.
"Even with legislation that's sort of simple on its face, often it will take several years to get it passed," said state Rep. Randy Dunn, D-Kansas City, who sponsored this year's ban-the-box bill in the House. "I filed House Bill 1684 because access to employment is one of the biggest barriers that individuals who might have a criminal background face in finding a job. We want to ensure that these individuals are able to integrate back into society, and one of the best ways to do that is, of course, through employment."
State Sen. Jamilah Nasheed, D-St. Louis, is sponsoring Senate Bill 724, the Senate counterpart to Dunn's bill. Similar proposals were on the table last year; but Nasheed's 2015 Senate bill, which had been amended to apply only to public-sector employers, died on the floor.
Dunn's bill would make it illegal for any public or private Missouri employer with at least six employees to inquire into or consider the criminal record of an applicant before the applicant has received a conditional offer of employment. Exemptions would exist for certain organizations, including religious employers, law enforcement agencies, the Department of Corrections, or any other position in which federal or state law requires or expressly permits reviewing applicants' criminal histories.
A criminal background inquiry would be permitted once an employer had extended a conditional offer to an applicant. At that point, the employer could consider an applicant's felony or misdemeanor convictions - but only if fewer than 10 years had passed since the felony, or five years for the misdemeanor.
The bill also would allow employers to withdraw a job offer because of criminal history only if based on an offense that bears a rational relationship to the duties of the position.
Reducing criminal temptation
Supporters of ban-the-box initiatives believe interviewing job applicants first to learn about their relevant skills and qualifications helps eliminate the opportunity for discrimination beforehand. They also assert removing barriers to ex-offenders' gaining employment has a larger societal appeal.
"Individuals with criminal backgrounds are oftentimes three times more likely to be denied access to employment simply because they have a criminal background. That creates an issue where those people often go back into a life of crime in order to sustain themselves or their families," Dunn said. "That creates issues for them and for the larger community."
The idea is that helping ex-offenders gain employment will reduce the rate of recidivism, or relapse into criminal behavior.
"We have thousands of individuals currently that are coming back home to our communities. If we aren't providing them with opportunities for employment, we're going to continue to see a high recidivism rate," Dunn said.
Nixon's executive order cites 96 percent of individuals sentenced to prison who will eventually return to their communities - with 44 percent of Missourians on parole listed as unemployed, according to the Missouri Department of Corrections.
A total of 19,145 offenders were released after serving prison sentences in Missouri during 2015 -- 5,202 of those people left after serving first-time felony sentences, ranging from Class A and B violent felonies to DWIs, according to the DOCs annual report.
Also last year, 5,558 people returned to Missouris prison system after their first release -- 11.1 percent of them relapsing into criminal behavior within six months of their first release. Fifty percent didnt return to prison until five years after their first release.
Banning the box seems to have worked for Hawaii -- since the 1998 law, repeat felony offending dropped from 78.5 of the states felony defendants in 1996 to 67.3 percent in 2004, according to a report in the American Journal of Criminal Justice.
Lengthened hiring process, litigation pose concerns
Another argument for banning the box is that keeping more candidates in the running for positions expands the pool of applicants to include more potentially qualified workers.
"I've got a good many individuals who have made a mistake years ago, and it haunts them -- and they are great employees," said Paula Benne, who owns C&S Business Services, a staffing agency in Jefferson City. "The ones that are truly repentant, they can be great candidates. Actually, they can be better employees because they've got something to prove -- they know it's a one-strike-you're-out."
Still, Benne believes banning the box wont turn the tables for those individuals when it comes to hiring practices.
"There's really no gray area; it's either policy or it's not policy," she said. It makes no difference about whether I find out before or after, except that it costs me time."
The strain on companies -- especially small ones -- to spend time interviewing candidates they will not end up hiring based on a criminal background policy is one reason some in the business community oppose ban the box.
"It creates an undue burden for employers," said Brian Bunten, director of legislative affairs for the Missouri Chamber of Commerce and Industry. "If you have a job opening, it takes time out of your day to go through the hiring process. Once you go through the hiring process, you can't ask about criminal record; you have to make a conditional offer first.
"That's an incredible waste of time and resources if you're a small business owner."
Plus, a criminal record isnt necessarily a deal-breaker, as long as you're applying at a company whose hiring policy doesnt expressly rule it out.
"If they've got a misdemeanor, that's hireable in most cases," Benne said. "If a company has a policy of accepting misdemeanors -- even two or three as long as they don't have a pattern -- they're still considered hirable."
Bunten also contends ban-the-box legislation would open the door to increased litigation -- and the costs associated with it -- for business owners.
"The bills require that, whatever's in someones background, the only way you can rescind an offer is if that thing in your background is rationally related to the thing you're offering," he said. "If an employer feels like something was rationally related -- and that could mean a different thing to a plaintiff in a case or a judge -- it's not a very cut-and-dry issue."
Rehabilitation before release
Most ban-the-box proponents would say what happens -- or doesnt happen -- after an offender's release affects whether he or she will add to a states recidivism rate.
But others point to what happens while an inmate is still behind the bars as well.
"When individuals are incarcerated, the criminal justice system is supposed to assist those individuals to hopefully prevent them from doing those acts in the future," Dunn said. "I think it's a larger issue that we have in that we are not providing the necessary resources to those individuals while they are incarcerated so that when they return back to society those concerns can be alleviated."
If preparing those individuals to qualify for available jobs is part of the solution, the Department of Corrections would seem to be on board.
Missouri's DOC has offered incarcerated offenders 18 Career and Technical Education programs since the 1950s, which provide certifications from the Missouri Department of Labor. Incarcerated offenders in Missouri can earn certifications in cosmetology, food handling and management, and nursing assistance, according to DOC spokesperson David Owen.
As of 2015, inmates at the Northeast Correctional Center can take advantage of a Commercial Vehicle Operator training class. And about 1,400 incarcerated offenders hold jobs at correctional centers spanning 23 industries through the Missouri Vocational Enterprises (MVE) program.
MVE also has an Apprenticeship Program that cooperates with the Bureau of Apprenticeship and Training, where incarcerated offenders receive training that affords them the opportunity to become skilled professionals in various occupations after their release from incarceration, Owen said.
Recidivism rates for individuals who completed vocational classes while incarcerated are markedly lower than those of individuals who were released as semi-skilled or unskilled.
In 2013, 27.3 percent of inmates who had completed vocational classes returned to prison, while 38.7 percent of people released as semi-skilled or unskilled became repeat offenders. In 2012, it was 20.7 percent and 37.9 percent, respectively.
Strangely, individuals who were already considered vocationally ready when admitted to the correctional system landed somewhere in the middle on recidivism -- 31.3 percent in 2013 and 29.4 percent in 2012.
Another option in Cole County
Non-violent offenders -- specifically, those whose crimes involve substance abuse, such as DWIs and drug-related offenses -- have another option locally in the Cole County Treatment Courts.
The treatment courts often offer participants a chance to have their charges dismissed -- meaning no lasting criminal record -- upon completion of the 15- to 18-month program. Some participants must plead guilty to a crime to qualify for the program.
"Those are the ones that we typically have issues with (finding jobs) because they permanently have that felony on their record," said Larry Henry, treatment courts administrator.
The treatment courts can act as a go-between for participants and potential employers. Henry has spent a lot of time building relationships with local businesses and temp agencies, where he often is the one to explain a participants criminal history as well as what the program consists of (i.e., random drug testing and monitoring).
"They're put at a bit more ease once they know that, and they feel a bit more comfortable, Henry said, adding employers would typically react better to him to making that contact than to the participant. "Initially and understandably, there's some concern from employers in the beginning. ...
"It would be pretty hard for a lot of our folks to get jobs if there wasnt an in-between for that."
Not every county has a treatment court program, so not every person with a criminal record has access to that layer of support.
But even with the successes he's seen for treatment court participants, Henry doesn't believe the ban-the-box approach would fix their problems.
"You still have some employers that have their own set of hiring standards," he said. "That's one of the things that sometimes can be a roadblock to some of our participants."
Municipal grassroots?
While Missouri hasnt banned the box statewide, several cities have passed their own ban-the-box initiatives -- Kansas City in 2013, and St. Louis and Columbia in late 2014.
The Jefferson City Council has never addressed the issue in any type of vote.
"I think it's run very smoothly," said Scott Dean, chairman of Columbias Human Rights Commission, which has enforced the city's ban-the-box ordinance over its year of existence.
The commission fielded three complaints in 2015 from people who were asked about criminal history on a job application. One was by a business that was exempt. One case required a business to update its online application, which it had been in the process of doing. The third case involved a large corporation with headquarters located outside of Columbia that was not aware of the change.
"Our goal was going to be mediation. We knew that there may be businesses that didn't find out," Dean said. "Our goal was not to litigate them. Our goal was to explain to them what the changes were and help them get into compliance."
Dean said while both supporters and those opposed to banning the box in Columbia were vocal about the issue before the City Council passed the ordinance, since then some concerns have been assuaged.
"A lot of the concerns were that you could end up with a sex offender working at a day care, which is an exempt organization by federal and state law," Dean said. "Those protections were still going to be in place whether the ordinance passed or not."
It may be too early to tell how successful those cities' ban-the-box ordinances have been in helping offenders secure employment and reducing recidivism. It's also unclear whether their successful implementation at the municipal level means statewide adoption is imminent.
"Especially if we have a Republican governor next year, I don't see that this is going to become law anytime soon," Bunten said.
But Dunn thinks its progress in multiple Missouri municipalities, as well as legislative discussions about criminal record expungement, may be laying the groundwork.
"Oftentimes the Legislature takes its cues from what local municipalities are doing -- oftentimes they know and understand the issues impacting their communities better than we do at the state level," Dunn said. "I think the reality is that it's not likely to pass this year. However, I think it's an important conversation for us to continue to have."
Regardless of legislative progress, Nixon's executive order means that, at least within the realm of state government employment, the criminal record box will begin closing in as July 10 -- 90 days after the order was signed -- approaches.
For more local business coverage, read the full April 25, 2016, issue of #jcmo Inside Business.