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:
Capitalizing on the growing interest in the employment discrimination faced by people with a criminal record, Cornell University’s ILR School will host a program next month featuring Judge John Gleeson on “The Role of Courts in Managing Collateral Consequences.” Details of the program, which will take place in Manhattan on September 29, are here. Last year, Judge Gleeson expunged the conviction of a woman he had sentenced 13 years before, and later issued a “federal certificate of rehabilitation” to one of the woman’s codefendants. While the 2nd Circuit recently reversed Judge Gleeson’s expungement order, the government did not appeal his certificate order.
Participating with Judge Gleeson on the Cornell program are New York Supreme Court Justice Matthew D’Emic, who recently presided over a mass certificate ceremony in Brooklyn; and Michael Pope, Director of Legal Services for Youth Represent, who last month won a significant victory for a woman whose shop-lifting conviction had resulted in her rejection as a school bus attendant in New York City. Ted Potrikus, President and CEO of the Retail Council of New York State, and Margaret Love, Executive Director of the CCRC, will also participate. Registration is now open for the program, which carries CLE credit. Read more
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.
At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants. Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation. Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination. But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word.
In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Read more
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.
Washington State courts are now authorized to grant certain individuals a Certificate of Restoration of Opportunity (CROP), which prohibits many state licensing entities from disqualifying the holder solely based on his or her criminal history. A CROP also protects employers and housing providers from liability for negligent hiring and renting. The new certificate authority was created by HB 1533, which was signed by Governor Jay Inslee on March 31 and took effect last month.
In light of the trend toward giving courts responsibility for restoring legal rights and certifying rehabilitation, we took a closer look at who is eligible for this newest judicial certificate and the benefits it confers. Read more
Update: The National Employment Law Project has responded to these studies with a critique that we cover here.
Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities. A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.
Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:
Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators. His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.
On June 2, former Attorney General Eric Holder sent a letter to the Chicago City Council asking it not to make Uber and Lyft do FBI background checks on their drivers as a condition of operating within the metropollitan area. The ride-sharing companies have argued that they should be permitted to vet their own employees. Mr. Holder’s points out that FBI records are incomplete and thus misleading, and that they are intended for law enforcement purposes, not to screen applicants for employment.
Mr. Holder, whose tenure at the Justice Department was notable for efforts to highlight the problems faced by people returning to the community from prison, then argues more broadly that perfoming background checks on applicants for employment disadvantages communities of color. In this regard, he notes that 80% of African-American men of working age in Chicago have a criminal record, and only half of them are employed. (This seems to present another one of those “ampersand” situations that so frequently arise these days in the criminal law context.). He concludes by stating that screening employees through FBI record checks is “both unwise and unfair.”
Mr. Holder’s letter does not indicate the context in which it is written, or whether He represents an interested party — though it is written on his law firm stationery so it seems fair to assume he is writing in behalf of either Uber or Lyft, or perhaps both.
Chicago would not be the first city to provoke controversy by requiring ride-sharing companies to perform fingerprint-based FBI background checks on their employees and applicants for employment. For example, Uber and Lyft pulled out of Austin, Texas, after the city council voted to impose the same background check requirements on ride-share drivers as are required for taxi drivers. At the same time, reports of driver attacks on ride-sharing passengers raise public concern about the effectiveness of self-regulation. It seems clear that we have not heard the last of this issue.
A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record. Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE.
Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions. Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency. The abstract follows:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.