In New Jersey, the legislature is considering a law called the Opportunity to Compete Act, which “would prohibit an employer from conducting a criminal background check on job candidates during the pre-application and application process,” and only allow a check “once a candidate has been found to be qualified and has received a conditional offer of employment.”
In a letter, Larry L. Bembry, drug court director and deputy of intensive supervision program, state Office of the Public Defender, argued in favor of the law, saying “The Opportunity to Compete Act would represent a step forward in helping individuals with criminal records turn around their lives.”
What about employers and their lives?
As a practical matter, the “Opportunity to Compete Act” now before the New Jersey legislature would put the state in position to nose into, and eventually dictate, every business’s “hiring process.” Otherwise, how does one define “late in the process?” Indeed, Page 7 of the Act states “New Jersey’s Opportunity to Compete Act requires that employers follow certain procedures when asking about your criminal history,” followed by six pages of procedures, and capped off with a listing of fines for violations of procedures based on number of employees.
The Act would create yet another avenue for predatory lawsuits, forcing employers to waste time and effort—as well as the time and effort of job applicants—going through the hiring process when the job applicant has no chance of getting a job, lest the applicant sue based on the charge that the potential employer inquired about his criminal background “too early” in the process.
But on the moral level, this intrusive bill violates the rights of businessmen and other employers to establish the terms of their hiring policies according to their own judgment and in accordance with their own self-interest.
The fundamental issue is not whether former criminals deserve a chance to rebuild their lives. Many undoubtedly do, and who would be against that? The issue is individual rights and the proper role of government: The government has no right to force anyone to give anyone a chance or an opportunity. In effect, this bill empowers the state to emulate criminals, the very people for whom the bill is designed to help escape from a life of crime? After all, what makes an act a crime?—violating the rights of others by initiating force against them. Is the answer then for the state, whose job it is to protect us from criminals, to initiate force and violate rights of businessmen? This is patently absurd.
The proper way for activists such as Bembry to advocate for jobs for those with a criminal history is through voluntary persuasion, rather than legal coercion. As the text of the Act itself acknowledges, this is a very viable approach. The Act notes that many large employers have already “voluntarily implemented their own policies removing barriers to the employment of those with criminal histories, including, among others, British Petroleum, Exxon Mobil, McDonald’s, Microsoft, Procter & Gamble, Royal Dutch Shell, Staples, Starbucks, . . . Target [and] Wal-Mart.”
But if any employer refuses to implement hiring practices regarding criminal histories of applicants that the government doesn’t approve of, it is the employer’s inalienable right to do so, and no one has a right to force them to change its policy. While the government may create whatever procedures it likes regarding government employment, private employers have a right to accept or reject job applicants on whatever terms they choose.
Pundits and politicians are forever agonizing over the lack of jobs. Look no further than laws like this intrusive bill to see why that is.
Hiring, Racism, and Criminal Records