Another day, another White House executive order on labor issues. President Obama is speaking Monday about criminal justice in Newark and is slated to announce that the federal government will push questions about a prospective employee’s criminal history — the infamous box that ex-offenders have to check on job applications — until later in the hiring process for federal jobs, ensuring that millions of Americans with a rap sheet have access to career opportunities.
That's a victory for civil rights groups, who have been campaigning all year for the administration to ease the path back into the workforce for the 1 in 3 Americans who have a criminal record. But it stops short of one of their biggest requests: that Obama ban the box for federal contractors as well.
While the federal government isn't exactly sure how many jobs are supported by the approximately $540 billion it spends every year on contracted services, it's probably many more than the 4.2 million people it directly employs; the Congressional Budget Office has estimated that 22 percent of the U.S. workforce is on some sort of federal contract. Most federal agencies already don't ask about criminal history until later in the hiring process, which means that today's announcement won't even affect that many open positions.
But the White House hasn't been shy about imposing requirements on contractors, with executive orders raising the minimum wage, requiring paid sick days and excluding bids from companies with labor law violations, among others. So why isn't Obama just doing the same thing with criminal history on job applications?
Well, Obama could extend the new edict to contractors, but he's aware that it could just be rescinded by his successor. Congressional action would be much more durable, because laws are more difficult to change. And while Congress wasn't about to mandate any of the previous changes the White House imposed through executive order, legislators might be more open to banning the box for federal contractors: The Fair Chance Act, which would do exactly that, passed out of a Senate committee unanimously in early October.
“We are working with them in this effort as we see this as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration,” a White House spokesperson said.
In part, the congressional movement reflects a growing bipartisan openness to various criminal justice reform measures, including reducing mandatory minimum sentences and encouraging alternatives to incarceration. But there's something else at work here, too: Businesses aren't really resisting the push to eliminate criminal history in the initial applicant screen. Usually, they retain the right to not offer someone the job if their crime turns out to have been egregious. Companies like Wal-Mart and Target have already done away with their boxes, and many local jurisdictions across the country have already required everybody else to do so as well — a federal law might just be less of a hassle to administer.
And while the federal contracting community has been sorely aggrieved by the spate of White House executive orders aimed at their HR policies, right now they're not resisting "ban the box” legislation in Congress.
“We are all aware of and sympathetic to the issues involved, the question has been how best to address them without adding unnecessary costs or process,” said Stan Soloway, president and chief executive of the Professional Services Council, which represents federal contractors. He’s satisfied with how the Senate bill creates exemptions for positions that require security clearances or involve direct child care, for example. “We think it’s the right way to address this issue.”
Advocates who pressed for an executive order covering federal contractors aren’t quite satisfied with that as a substitute. For example, the Senate bill doesn’t codify the Equal Employment Opportunity Commission’s guidelines, which say that employers should look at each formerly incarcerated applicant’s offense on an individual basis.
“It’s not using the full weight of federal authority,” said Maurice Emsellem, who worked on the issue for the National Employment Law Project. “The president can go further than what’s in the legislation.”
Nevertheless, there’s a reason why Obama is holding back on his executive power just this once — sometimes, letting other people do things can have a more long-lasting effect.