“Ban the Box” or Fair Chance to Work laws are state statutes that limit an employer’s ability to ask an interviewee about arrests and convictions. The name refers to that check box on many employment applications that asks the applicant to disclose any criminal record. Most job seekers assume, with some justification, that checking the box banishes an application to oblivion.
Fueled by the War on Drugs among other policies, the rate of incarceration in the U.S. has risen by 500 percent over the last thirty years. More than 70 million Americans have an arrest or conviction record, and most of them are Black or Latino men. Unemployment has a pernicious link to recidivism.
In an effort to undo some of this harm, 17 states and over 100 cities and counties now limit what and when an employer can ask about a criminal record. Most of the laws relate to public sector employers.
However, a growing number extend the restrictions to vendors or contractors who work with public agencies and even, in a few cities like San Francisco and Seattle, to private employers. For anyone with a marijuana conviction that stands in the way of employment, this looks like a good thing.
For the cannabis industry, however, Ban the Box laws do very little to open legal enterprise to those who came before and likely have little more than a criminal conviction to show for it.
The problem is state licensing statutes. In Washington and Colorado, a felony conviction, especially a relatively recent one, is likely a deal-killer for ex-offenders who want to work in or own a piece of the industry they helped create. The solution may be to amend licensing statutes to permit regulators and employers to distinguish between marijuana and other convictions.
Colorado Laws at Cross Purposes
Colorado’s Ban the Box law limits the kind of inquiries state agencies may make and so, on its face, does not apply to private employers. The owner of a Colorado dispensary, like any other businessperson, is presumably free to make any inquiries he or she wants to about arrests and convictions, as long as those fall within federal Equal Employment Opportunity Commission guidance designed to prevent racial or national-origin discrimination in employment.
More importantly, however, HB 1263 (2012) limits what licensing agencies may consider. In determining whether a conviction disqualifies an applicant for a license, the licensing agency must consider (1) the nature of the conviction; (2) the direct relationship of the conviction to the job; (3) rehabilitation and good conduct; and (4) the time elapsed since the conviction.
It might have been promising for marijuana pioneers, except for the fact that Ban the Box takes a back seat when other state laws preclude the issuance of a license based on a criminal conviction.
In Colorado, the Marijuana Enforcement Division and local licensing authorities have wide discretion and may deny licenses if they believe that a criminal history indicates that an applicant is not of “good moral character”.
Job applicants are discouraged from applying for a license in Colorado if they have any felony convictions for controlled substances or other felony convictions within five years.
Individuals may not own, invest in, or have a direct financial interest in a marijuana business if they:
- have discharged a sentence for a conviction of a felony in the 5 years before the application date; or
- have discharged a conviction of a felony related to possession, distribution, manufacturing, cultivation or use of a controlled substance in the 10 years before application, or the 5 years before the passage of this law, whichever longer.
Washington law similarly prohibits state agencies from refusing to grant a license to someone based solely on criminal conviction. Both Seattle and Spokane have adopted ordinances further limiting inquiries about criminal record.
Spokane simply delays any inquiry until the applicant is found to possess minimum qualifications for city employment.
Seattle imposes a similar delay, but applies the law to private employers, as well. Employers must identify a legitimate business reason for denying employment to an applicant on the basis of a criminal record, notify the applicant what the underlying information is and provide the applicant with a minimum of two days to correct or explain that information.
Washington Liquor Control Board regulations make it unlikely that a cannabis applicant will be able to exercise this right or an employer to use this kind of discretion. The Board uses a complicated point system to determine whether a criminal record would disqualify someone for a marijuana license. It takes into account the seriousness of the offense and the time elapsed since the conviction.
Misdemeanors and old convictions do relatively little damage to an applicant’s score. A felony conviction within 10 years or current probation for a felony would be disqualifying.
The policy of state licensing laws is to keep the industry crime free and to honor the Justice Department priorities set forth in the Cole memorandum. The policy of Ban the Box laws is to re-integrate ex-offenders into society and reduce crime and recidivism. These are not at odds.
Employers have a legitimate interest in knowing about applicants’ criminal records. Few would disagree that a recent conviction for armed robbery would be relevant to the proprietor of an all-cash business. On the other hand, a conviction for possession or possession with intent to sell, would hardly be news. Licensing statutes should be drafted in a way that recognizes history and allows employers to exercise judgment about that history.