Helping Individuals with criminal records Reenter through Employment

HIRE Network News, June 2012 (full text)

HIRE Network News, June 2012
Director's Corner

Dear supporters:

Thanks to members like you throughout the country, HIRE has grown to a network of more than 8,000 members after more than a decade of making a difference in the lives of people with criminal histories.

With your help, our range of technical assistance supports individuals, direct service providers, policymakers, advocates and other stakeholders who are working to improve employment prospects for people with criminal histories. With the need for our services growing more each year, we are asking for your help in moving toward an even better future by joining our new paid membership.

We hope you’ll agree that it’s well worth it. In 2010-11 alone, HIRE:

  • Worked with state advocates to promote fair hiring practices and employment standards and laws that create certificates of rehabilitation or remove occupational licensing bars;
  • Trained hundreds of parole and probation officers, employers, and workforce development professionals on the barriers to employment faced by individuals with criminal records – including state laws, policies, and practices that limit opportunity – and on effective strategies to address them;
  • Provided our membership with research, advocacy, and policy information at the intersection of workforce development and criminal justice;
  • Advocated for the highest possible funding for reentry programming at the federal level; and
  • Worked with Congress and the Obama Administration to eliminate criminal record barriers to employment and essential services.

Looking back on these successes, we’re hoping you’ll take part in HIRE’s new membership drive. HIRE members will receive a semiannual newsletter and unlimited access to our new website, launching today! While many organizations offer e-blasts of aggregated news, HIRE’s new website content and newsletter will contain timely, substantive analysis of the news and issues that affect those we serve.

Membership is available on an annual or lifetime basis:

  • Annual Member: $35
  • Lifetime Member: $100

But you don’t have to be a member to help: As always, any donation you can make to support our programs is greatly appreciated. We are a small project trying to do big things. Your membership donation to support HIRE’s work would not only be greatly appreciated, they would be dollars well spent on your behalf. Our newsletter will serve as a token of our appreciation of your commitment to help HIRE and, should you call on us, you will receive priority response to any question you may need answered via email or phone.

Thank you in advance for your continued support.

Roberta Meyers Director
 

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The National H.I.R.E. Network is a project of the Legal Action Center, a nonprofit law and policy organization. All donations are fully tax deductible.

Update of the EEOC Guidance: Why It Matters for Everyone

By Roberta Meyers

In a tremendous victory on April 25, 2012, the U.S. Equal Employment Opportunity Commission’s (EEOC) commissioners agreed to update the guidance it released nearly 30 years ago to discourage employers from establishing blanket bans against hiring people with arrest and conviction records, which could violate Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful to discriminate in employment based on race, color, national origin, religion, or sex.

The EEOC’s recent guidance included new provisions that:

  • Put employers on notice that categorical exclusions for people with certain arrest and conviction records may violate TitleVII;
  • Emphasized its earlier recommendation that job applications not ask about criminal records, and if they do ask, that they limit inquiries to records for which exclusion would be job-related with business necessity;
  • Offered a series of examples of common policies and practices that violate Title VII; and
  • Informed local and state governments that barring people with certain criminal records from jobs or occupational licenses also could violate Title VII.

The EEOC notes that to establish business necessity, the employer must show that three factors were taken into consideration in the hiring decision:

  • The nature and gravity of the offense(s);
  • The time since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.

Few states have laws prohibiting discrimination against job seekers with criminal histories, and there is no federal law. For years, the National H.I.R.E. Network has promoted the EEOC’s guidance as a model policy that states should adopt and educated employers on the use of criminal records in hiring decisions. It is a fair and sensible policy that should be applied to every job applicant who has a criminal record.

The new EEOC guidance was necessary because people of color have been disproportionately impacted by the criminal justice system. The statistics have always been clear, but the dialogue about why has happened only in recent years. (See Unchaining Civil Rights and The New Jim Crow.) Therefore, any policy that serves as a blanket policy against hiring applicants with a criminal history could be construed as race-based employment discrimination. This does not negate the fact that white job applicants with criminal records also face discrimination.

Why is news of the new guidance a victory for ALL job seekers with criminal records?

Several years ago, legal and policy advocates from all over the country came together to develop strategies to educate employers about unfair and discriminatory criminal record and background checks. One strategy was to bring litigation in states that have antidiscrimination laws to protect applicants with criminal records in applications for jobs and/or occupational licenses. Another was to advocate for legislative reforms in states that did not protect jobseekers from discrimination and employers from negligent hiring claims. Third, advocates agreed to educate and inform the EEOC about the employment discrimination around the country.

The accomplishments of this strategy have been great. The “Ban the Box” movement ensued, leading states and localities across the country to prohibit inquiries about criminal records until an applicant has been deemed qualified for a job and given a conditional offer of employment. Additionally, many states have passed legislation to limit access to certain criminal record information, including Georgia, Indiana, North Carolina, and most recently, South Carolina. In 2010, a class-action lawsuit accused the U.S. Census Bureau of raced-based discrimination through its criminal record background screening. In January 2012, the EEOC announced that it had settled a lawsuit against Pepsi Beverages for $3.13 million, saying:

"The EEOC’s investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense."

In April 2012, the EEOC announced that it had updated the criminal record guidance for employers. A tremendous educational tool for the employer/business community, the recommendations could increase opportunities for all jobseekers with criminal records, not just minority applicants. Therefore, while the National H.I.R.E. Network continues to advocate for federal and state laws to give qualified job applicants a fair chance to compete, we recognize the value of multiple approaches. These are victories that will benefit the entire population of qualified jobseekers with criminal histories.


Policy Trends: State Restoration of Rights --
Pardons & Certificates

By Roberta Meyers
Today, the term collateral consequence or collateral sanction is often part of any dialogue about criminal convictions. These terms reference the legal rights or privileges that are revoked or put in jeopardy after a conviction, most typically from a felony, but also some misdemeanor offenses. They include the right to vote, to work in particular industries, to obtain certain occupational licenses, to live in public or government-subsidized housing, to attend certain colleges, and many more. Therefore, restoration of civil rights is a critical component of the reintegration process for many individuals convicted of crimes who seek to fully participate in society. Margaret Colgate Love (2008) discusses in detail "the principal avenues to restoration available in U.S. jurisdictions:

  1. The executive pardon power;
  2. Judicial expungement and sealing of adult felony convictions; and
  3. Laws that limit consideration of conviction in employment and licensing.”[i]

Two areas of concern for most individuals with criminal convictions are obtaining a job that pays a living wage and securing permanent housing. However, some of the barriers to those goals are written into the law. A state may prohibit an individual with a felony conviction from working in a restaurant that serves alcohol, for example, or may bar an individual from obtaining – or even applying for – a security guard or cosmetology license. These laws vary by state, and in most states individuals may overcome these hurdles only through an executive pardon from a governor, which are rare. However, some states have created other restoration of rights opportunities for people with criminal convictions.

As of 2008, there were nine states that had restoration of rights programs that give limited or full pardon authority to judges and/or the board of parole and pardons: Alabama, Arizona, California, Connecticut, Georgia, Illinois, New Jersey, New York, and Nevada.[ii] The programs vary in name (i.e. pardon, certificate of relief from disabilities, certificate of good conduct, certificate of rehabilitation, or restoration of civil and political rights). The effect of the remedy differs, too, with some relieving all civil disabilities – including those in employment, voting, holding public office, housing, etc. – while others may be very limited. Eligibility requirements also differ, with some applicable only to individuals with felonies or only in-state convictions. However, in all cases, the individual usually cannot deny the existence of the record and expungement or sealing of the record is an additional relief granted by a judge or the issuing authority.

State Reforms

Advocates in several states have attempted to create new restoration of rights programs. Since 2008, there have been only three states that have created certificate programs. In 2009, Iowa created the Certificate of Employability program, which grants the Iowa Board of Parole authority to issue certificates to currently incarcerated or released individuals to relieve the recipients of automatic bars to employment imposed by law. In 2011, North Carolina enacted legislation to create a Certificate of Relief program that would grant judges the authority to issue certificates to relieve individuals of most collateral sanctions and disqualifications including, "a penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on [the] individual on grounds of relating to the individual’s conviction of an offense." In May 2012, the Ohio legislature passed legislation to create Certificates of Qualification for Employment, which would be issued by a judge or the Division of Parole and Community Services and lifts the automatic bar of most a collateral sanctions that are "a penalty, disability, or disadvantage that is related to employment or occupational licensing, however denominated, as a result of the individual’s conviction of or plea of guilty to an offense and that applies by operation of law in [the] state whether or not the penalty, disability, or disadvantage is included in the sentence or judgment imposed."[iii] The bill is awaiting the governor’s signature.

Advocating for Restoration of Rights in Your State

Stakeholders may seek to have similar programs implemented in their state. They are referred to, as a general term, as Certificates of Relief. However, they can be given any name that suits the effort. The Legal Action Center’s Advocacy Toolkits note the many values of a certificate of rehabilitation program:

  • Employers retain their discretion to individually assess every applicant and do not have to forego an opportunity to hire qualified employees because of some federal, state, and local laws and regulations that exclude people with certain criminal records.
  • Individuals with criminal records who have completed relevant job training and education programs can be eligible for those jobs.
  • Criminal records remain accessible for law enforcement purposes.
  • Certificates can offer a presumption of rehabilitation for job applicants -- or at a minimum an individual’s commitment to rehabilitation -- and shift the burden to the employer and licensing agency to demonstrate that the individual is not suitable for the job or license sought.
  • Certificates can provide clear guidance to occupational licensing agencies or employers when considering an applicant’s suitability for a particular license or job. For example, New York and Illinois have enumerated in their laws the factors employers must consider when evaluating a job applicant with a criminal history.

Keep in mind that before advocates attempt to get legislation passed in their state, there are a few questions to consider.

- - - - - - - - - - -
[i] See Relief from the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide (June 2008). Retrieve from http://www.sentencingproject.org/detail/publication.cfm?publication_id=115.

[ii] Ala. Code § 15-22-36 9c); Ariz. Rev. Stat. §§ 13-904-06; Cal. Penal Code §§4852.01 (a)-(d); Conn. Gen. Stat. § 54-130a; Ga. Code Ann. § 42-9-54; 730 Ill. Comp. Stat. 5/5-5-5; N.J. Stat. Ann. § 2A:167.5; N.Y. Correct. Law §§ 752-754; Nev. Rev. Stat. § 213.157.

[iii] See Sect. 2953.25 of S. B. No. 337.


Spotlight: Federal Interagency Reentry Council

The Federal Interagency Reentry Council was convened by Attorney General Eric Holder in January 2011 to bring together most, if not all, of the federal agency leaders that have a stake in making communities safer. The goal of the Council is to reduce recidivism and victimization by ensuring that individuals who are committed to rehabilitation have access to the necessary resources and services. The Council has grown to include 20 federal agencies, which meet every six months to discuss reentry challenges and ways to increase access to employment, housing, treatment, and education opportunities that may reduce the likelihood of recidivism.

The Council has effectively worked to address a number of recommendations the Legal Action Center’s National H.I.R.E. Network promotes to end federal barriers to education, employment, housing, and public benefits.

Furthermore, the Council has implemented a national public education campaign to emphasize internally that the goal of the agencies is to facilitate successful reentry of formerly incarcerated individuals and to dispel the myths that surround the complexities of the law.

For example, the Assistant Secretary of the Employment and Training Administration issued a directive about facilitating the compliance of nondiscrimination provisions related to criminal record restrictions. The Council also developed several Mythbusters, fact sheets that are designed to clarify existing federal policies in areas such as public housing, access to benefits, parental rights, employer incentives, Medicaid suspension/termination, and more. We commend Attorney General Holder for his leadership in establishing an official group within the federal administration solely dedicated to improving the reentry success of the hundreds of thousands of individuals returning to communities every year. We also commend the staff charged with achieving the goals of the Council.