A bill prohibiting communities from enacting their own ban the box ordinances stirred divisions in the Indiana Legislature with supporters arguing for employers’ rights and opponents citing the need for individuals to have equal opportunities for jobs.
However, when Gov. Eric Holcomb announced his intention to sign Senate Enrolled Act 312, he brought some rare unity between the two sides. Along with enacting the new law, the governor also said he would sign an executive order that will essentially ban the box for state agencies.
Representatives from FreedomWorks, a nonprofit that advocates for free markets and individual liberty, and the NAACP applauded the governor’s action. They said the executive order will benefit all Hoosiers by helping ex-offenders provide for themselves and making communities safer.
Although she called the bill a “step backward,” Ngozi Ndulue, senior director of criminal justice programs at the NAACP national headquarters, said Holcomb showed leadership by doing “something positive for Indiana state employees.”
“Ban the box” refers to the question typically on job applications that asks individuals if they have a criminal record. People who indicate they do, by checking the box, run the risk of having their resume tossed immediately and not even getting in the door for an interview.
Ndulue noted that even when the box is banned, employers can still ask whether the job applicant has a criminal record, but it has to come later in the hiring process, like after a conditional job offer has been made. This, she said, gives ex-offenders the chance to get additional information in front of the employer and present a more holistic picture of themselves.
Jason Pye, director of public policy and legislative affairs for FreedomWorks, supports the governor’s order because it will only cover the public sector and does not include private employers.
Pye said Holcomb’s executive order is part of the second-chance movement giving ex-offenders around the country the ability to reform, which benefits communities and eases the burden on taxpayers. People who have broken the law in the past will be able gain employment and not have to resort to crime to make money. As a result, recidivism rates will drop, decreasing the costs of public safety, and public assistance rolls will shrink because more people will be working.
Ndulue and Pye could only talk about the executive order in general. The document has not been issued and the governor’s office said in an email to the Indiana Lawyer that the language was still being crafted. It is expected to be completed soon.
In introducing SEA 312, Sen. Phil Boots said the intent was to create uniformity for employers.
“All this is is a standardization to make sure we do this throughout the state of Indiana because employers do operate in different jurisdictions and to have one regulation in one area and another regulation in another area seems to me not to be consistent,” the Crawfordsville Republican said. “So that’s all I’m trying to do is make it clear that as long as state and federal regulations make it legal that they can ask that question.”
Only one local government — Indianapolis — has such an ordinance. Enacted in 2014, the ban the box measure applies to public employees as well as private contractors doing business with the city and Marion County. This new law is retroactive, and when it takes effect July 1, it will preempt the Circle City’s rule.
To Indianapolis employment attorney Stephanie Hahn, ban the box policies make sense because they enable ex-offenders to “be able to apply and obtain jobs where they can support themselves and their families without worrying about the consequences of a mistake they made 10, 15 or 20 years ago,” she said.
Hahn also pointed out, whether a law, an ordinance or an executive order, that ban the box initiatives usually have exceptions. Certain public entities, such as law enforcement departments, might be allowed to continue using the box because felony convictions could bar an individual from serving as a police officer or sheriff deputy.
Republican Sen. Chip Perfect of Lawrenceburg wrote the amendment to SEA 312 that offers protections to employers who do hire ex-offenders. The provision prohibits a worker’s criminal history from being used in a civil action against a business if, among other conditions, the illegal act does not relate to the lawsuit or the arrest did not result in a conviction.
“I wanted a way to make it easier for employers to take a chance (on hiring a former inmate),” he said. “If someone takes a chance, it can’t be used against them.”
Perfect, who supported SEA 312, acknowledged ban the box is intended to help people who have criminal records making a living. However, he said as an employer, it is an impediment to the hiring process because the employers have to invest more time and effort before they are able to get all the information they need.
First heard by the Senate Committee on Pensions and Labor, SEA 312 quickly divided the group. Supporters of the legislation said they did not want another regulation pertaining to the ability of businesses to screen job applicants. Opponents of the measure characterized the criminal history question as a barrier that prevents ex-offenders from contributing to their communities and makes them likelier to reoffend.
The vote in the Senate committee split along party lines, but the House Courts and Criminal Code committee unanimously supported the bill. Prior to the Senate committee vote, Sen. Eddie Melton, D-Merrillville, had his Republican colleagues nodding in agreement when he noted the Statehouse has to continue working on employment issues.
“I just want to make sure even after whatever the outcome is today that I think we need to have a broader conversation,” he said, “in terms of not just hiring practices but education, economics across the entire state and just figuring out how do we provide every single Hoosier an equal opportunity to access jobs that provide them a living wage.”•