The following piece by Beth Avery was originally published on the blog of the National Employment Law Project.
Building upon the successes of 2016, legislatures across the country are off to a strong start this year toward adopting laws that increase fairness in hiring and employment opportunities for the one-in-three U.S. adults with arrest or conviction records.
This progress should come as no surprise—in recent years broad support has emerged from coast to coast for a number of reforms that address the criminal justice system and its disproportionate impact on people of color. Along with critical efforts to increase expungement and sealing, adopt bail and sentencing reforms, and expand voting rights for people with convictions, a powerful movement is also advancing two crucial policies that improve access to employment for people with records: “fair chance hiring” or “ban the box” laws and reforms to occupational licensing requirements.
The National Employment Law Project (NELP) recently published its November 2016 On the Record: Fair Employment newsletter which provides links and information on a number of interesting developments related to collateral consequences and criminal record mitigation. The full newsletter is available below:
In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014. The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.
HHS has now issued the final version of those regulations. Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition. For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.
Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services. Screening of those individuals is not required by the Act itself. As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:
In June we covered two recent studies that concluded ban-the-box policies tend to decrease minority hiring because some employers use race as a proxy for criminal history. In other words, in the absence of information about applicants’ criminal history, some employers assume that minority applicants have a record and exclude them on this assumption. The result is that ban-the-box policies increase opportunities for whites with a criminal record but decrease them overall for minorities, and thus encourage unlawful discrimination. Some observers, including one of the study authors, advocated for the repeal of ban-the-box policies based on those conclusions. Last week, the National Employment Law Project (NELP) published a critique of those studies, pointing out that any adverse effect on racial minorities is ultimately the product of unlawful discrimination barred by Title VII of the Civil Rights Act of 1964, not banning the box. In NELP’s view, the solution is “a robust reform agenda that creates jobs for people with records and dismantles racism in the hiring process, not [rolling] back the clock on ban-the-box.” We republish the summary and introduction of NELP’s critique below.
Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.
Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.” (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.
The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.
Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.
Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).
To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.
States are falling short when it comes to making occupational licensing opportunities available to people with criminal records. This is according to a report released this week by the National Employment Law Project (NELP). Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records examines the licensing laws of 40 states, and grades each state based on a number of criteria designed to assess how effective the law is at creating licensing opportunities for people with criminal records. The report is a powerful advocacy piece demonstrating the need for nation-wide reform of licensing laws, though it bears noting that its limited scope may distort the bigger picture in some states.
Recent studies and policy discussions focusing on the difficulty people with criminal records have finding employment tend to ignore the fact that nearly 30% of American jobs require state licensure or certification — which is frequently denied based on a conviction. The National Inventory of Collateral Consequences (NICCC) shows that there are over 25,000 formal occupational and business licensing restrictions imposed nationwide at the state or federal level. Many of these restrictions apply regardless of a crime’s relationship to a particular license or the time since conviction. Across the nation, over 10,000 of these restrictions are mandatory and apply automatically, forcing licensing bodies to reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation.
Municipal and county ordinances also regulate employment and business opportunities, including such important entry-level employment as taxi driver and street vendor, though ordinances are not catalogued in the NICCC and so were not included in the NELP report. Read more
Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change.
By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years. States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires.
If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse. On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. Read more
A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs. In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check.
The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention:
Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.
Apple, maker of the iPhone and iPad, came under fire earlier this month when the San Francisco Chronicle revealed that the company was prohibiting those convicted of a felony in the last 7 years from working on the construction of an enormous new corporate campus in Cupertino, California. Under pressure from the iron workers union and advocates for fair hiring policies, the company quickly reversed course:
We recognize that this may have excluded some people who deserve a second chance. We have now removed that restriction and instructed our contractors on the project to evaluate all applicants equally, on a case-by-case basis, as we would for any role at Apple.
But many believe that Apple can do more to end employment discrimination against those with criminal records and can set an example for the tech industry and the country in the process.
The National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record. In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country. Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.
The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process. Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers. Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities. These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).