Tag: federal

Federal agencies urged to adopt fair hiring policies

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). The paper urges presidential action to implement the recommended reforms through an Executive Order on federal contracting, and a Presidential Memorandum directed to federal agencies.  It notes some legislation pending in Congress that would improve opportunities for people with a record, including the REDEEM Act co-sponsored by Senators Rand Paul and Cory Booker.  But changes in the law are not necessary to implement the report’s recommendations affecting federal employment practices. A Fair Hiring Platform NELP proposes an ambitious fair hiring platform that, if implemented by federal employers and contractors, would instantly transform the national landscape.  The Executive Order the report recommends would require federal contractors to take the following steps to increase opportunities for people with a criminal record: •  Remove the criminal history question from job applications and postpone the background check until a conditional offer of employment is made (i.e., “ban the box”), except where the specific position requires a national security clearance; •  Consider only “job related” convictions and take into consideration the age of the offense, the nature of the offense, and countervailing evidence of rehabilitation, as required by the EEOC; •  Refrain from asking about an individual’s arrest record, expunged offenses, dismissals, or juvenile offenses; •  Provide a written notice to the individual when an unfavorable determination is made, explaining the reason for the decision (including the disqualifying offense); • Provide strong notice and appeal rights for workers to challenge unfavorable determinations; and • Strictly comply with the background check requirements of the Fair Credit Reporting Act. In addition, federal agencies should be made subject to stricter regulation where their own hiring policies are concerned.  Specifically, a Presidential Memorandum should direct federal agencies “to correct the prejudicial aspects of the hiring standards and procedures regulating criminal background checks of applicants for federal employment,” and “embrace the role of a model employer.”  The report suggests that the appeal and waiver procedural protections mandated by the Maritime Transportation Security Act’s port-worker background check program, whose adoption NELP was instrumental in securing in the months after 9/11 and whose administration by the Transportation Security Administration NELP has monitored ever since, could be a model for federal agencies’ own employment policies and practices.  Specifically, the Presidential Memorandum should include the following key components: • The Office of Personnel Management (OPM) should revise the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964. Instead of the discretion now allowed to consider the age of the offense, evidence of rehabilitation, and other mitigating factors, the agencies should be required to do so; • To promote greater transparency and accountability, all federal agencies should report their suitability criteria to OPM and verify their compliance with the EEOC guidelines. Agencies should also report the appeal procedures that apply to each of the distinct categories of workers, including federal contract workers. Based on the information collected, OPM should issue a report to the president evaluating the findings and making recommendations for federal agency reform; • OPM should eliminate the criminal history question from the “Declaration for Federal Employment” form, and federal agencies should strictly follow the OPM standard policy that they postpone the background check until the end of the hiring process; • All federal agencies should be directed to evaluate the “collateral consequences” of federally mandated criminal background checks for employment; • Federal agencies should adopt the appeal and waiver procedures modeled on the Maritime Transportation Security Act’s port-worker background check program to all federal agency licensing and employment certification mandates; • The FBI should be directed to comply with existing regulations that preclude the reporting of non-serious offenses and to take additional steps to clean up the FBI background checks for employment, which severely prejudice the employment prospects of people of color; • The Consumer Financial Protection Bureau should publish regulations addressing the numerous routine violations of the Fair Credit Reporting Act by the background screening industry and employers, including the erroneous reporting of expunged and sealed cases; • Federal agencies should prepare options to require “targeted hiring” of people with criminal records on federally-funded projects and provide additional funding for “transitional jobs” that serve the needs of people who have been recently released from incarceration; • Federal agencies should actively promote and enforce the new federal civil rights guidances that strictly regulate the use of criminal history information by private – and public – sector employers and federally funded workforce programs. The bold reform agenda recommended by the NELP report seems a lot to expect of this Administration in its waning months.  However, we note that one person who has indicated an interest in assuming the presidency in 2017 already has a track record of implementing such a program, albeit on a somewhat smaller scale. In 2006 Governor Jeb Bush issued Executive Order No. 06-89, based on the report of a task force he had established, which directed each agency in the State of Florida 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) to report to him the reasons for any automatic disqualifications and any available procedures for waiver; 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  Governor Bush asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  He also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.” Might federal fair hiring become an issue in the coming presidential campaign? Read more

SBA to relax some rules on loans to people with a record, but most left in place

In December 2014, Amy Solomon, Senior Advisor to the Assistant Attorney General for the Office of Justice Programs in the Justice Department, testified before the U.S. Senate Addiction Forum about the review of collateral consequences federal agencies had been conducting under the auspices of the Federal Reentry Council.  She reported that most of the agencies participating in the review had concluded their collateral consequences were “appropriately tailored for their purposes.”  However, she also reported that Small Business Administration (SBA) had proposed amendments to its regulations to allow people on probation or parole to qualify for loans from its microloan program.  (The change, proposed almost a year ago, has still not become final.) We decided to take a look at the SBA’s proposed rule change, and at the SBA regulatory scheme more generally, to see how having a criminal record affects small business eligibility for government-backed loans. Current SBA regulations  The SBA guarantees against default certain loans made to small businesses by qualified private lenders under three different programs: general small business loans under the 7(a) program, real estate and equipment loans under the 504 program, and the microloan program.  The cap on 7(a) and 504 loans is $5 million, while the cap on microloans is $50,000.  Qualification standards differ under the three programs, but a core set of eligibility standards at 13 CFR § 120.110 applies to all of them. The core eligibility standards in § 120.110 do not generally bar loans to people with a criminal record (though the required “statement of personal history” asks applicants if they have ever been convicted of any criminal offense other than a minor vehicle violation, and advises that a conviction will not “necessarily” be disqualifying). However, people who are in prison, on probation or on parole, or who have criminal charges pending, are absolutely barred from obtaining a loan under any of the SBA programs. In addition, if an applicant employs individuals who are still under sentence, this may also result in ineligibility, since the SBA will not make a loan to any business with an ineligible “associate.”  An “associate” is any officer, director, owner of more than 20 percent of the equity, or a “key employee.”  A key employee is defined as one with “critical influence in or substantive control over the operations or management” of the business. See 13 CFR § 121.103 (g).  Accordingly, the SBA regulations don’t just render probationers and parolees ineligible to receive loans under the programs; they also make them ineligible for employment in significant management or operations positions in any business funded by SBA loans. The SBA restrictions on probationers and parolees are not mandated by or specifically authorized by its governing statutes.   The current eligibility restrictions pose a signficant barrier to reentry and integration, and affect a significant portion of the population. In 2013, 4.8 million Americans were serving probationary sentences or on parole (which in some jurisdictions can last many years). Because employment opportunities for this population are already limited, they frequently decide to open their own business. The SBA regulations effectively make it difficult for anyone still under supervision to make opportunities for themselves and create jobs for others. The number of business and employment opportunities limited by the SBA regulations is not insignificant:  In 2014 alone, the SBA made over 12,000 loans to small businesses under the 7(a) and 504 programs. A large number of businesses are dependent on SBA loans, which means a large number of closed doors for people currently serving a sentence. Importantly, it also means that a good number of people stand to lose their jobs if they are convicted and sentenced to probation while working in a key position for an employer dependent on SBA loans. The proposed rule change  The change in the SBA regulations would, for the first time, allow probationers and parolees to qualify for the relatively small-dollar loans available under the microloan program. Equally important, it would allow them to serve in key management or operational positions in businesses supported by microloans. The change is specifically intended to reduce returns to prison by enabling individuals who tend to have difficulty finding steady employment to start their own businesses. See 79 FR 14617, proposing to amend 13 C.F.R. § 120.707(a). Individuals under supervision for crimes involving fraud or dishonesty would remain ineligible under the microloan program, and a person convicted of an offense against children would be ineligible for a loan to a non-profit child care center. This change will be good news for many.  But it seems unnecessarily conservative, considering the SBA’s asserted interest in encouraging reentry and rehabilitation. If expanding employment options for persons under sentence is something the SBA truly wants to do, it needs to look beyond its microloan program to relax the restrictions applicable to employees as well as borrowers under the SBA’s larger 7(a) and 504 loan programs.  Businesses supported by those larger loans are more likely to provide high-level employment opportunities than those supported by smaller microloans.  They are also more likely to have internal controls in place to guard against fraud or malfeasance, giving confidence to lenders. Moreover, the current SBA regulations are anomalous in imposing no bar to those convicted of serious financial crimes who have completed their sentences, while restricting those on supervision for what might be a minor offense with no adverse implications for business dealings.  It is hard to see how barring a person serving probation for a reckless driving conviction, for example, protects the SBA or the public. Perhaps one practical reason for restricting loans those under sentence has more to do with business calculus than with fear of criminality: Probationers and parolees who violate the terms of their supervision are subject to incarceration, and people who are incarcerated are likely to have a tough time paying back their SBA-guaranteed loans. Those who have already been released from supervision, even those convicted of serious financial crimes, don’t pose such a specific risk.  But if this may be a reasonable justification for barring borrowers on supervision, there are no similar business reasons for holding their employees to the same standards. Conclusion The changes to the regulations proposed by the SBA would allow certain probationers and parolees to qualify for microloans for the first time, but would leave in place substantial restrictions for people under sentence in other SBA loan programs.  If the SBA is concerned about encouraging reentry, then it needs to go further than simply expanding borrower eligibility under its microloan program.  While giving probationers and parolees access to microloans -– and to employment with microloan borrowers — will certainly allow some to reestablish themselves as productive citizens, the real employment opportunities are with businesses funded under the larger 7(a) and 504 programs, for which probationers and parolees would remain absolutely barred. These businesses are also likely to be better protected against employee fraud or malfeasance.  It is hard, therefore, not to see the proposed rule as a token gesture rather than a broad effort to open opportunities for those under supervision in the community. At the same time, it is encouraging to see that reentry is an issue that at least one federal agency is giving thought to.  Perhaps other federal agencies will follow suit. Read more

‘Tis the season for . . . . some presidential forgiveness

It’s that time of year again.  Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences.  I have never quite reconciled myself to the unfortunate and ahistorical  association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power.  But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree. It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process.  But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history.  And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since.  Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984. But there is some reason for optimism even this late in the game.  President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives.  There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary.  They deserve something more than a gambler’s chance at forgiveness. Read more

Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in: Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes. In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.” Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” The D.C. Housing Authority determined that he was eligible for three properties in his area, but he received three rejection letters, each specifically citing his criminal record as the reason he was denied.  As a result, his plans to move into subsidized housing were derailed, and he became homeless. Even with help from the Legal Aid Society of the District of Columbia, he wasn’t able to find housing until November, nearly seven months later. The problem is that when even when decision-makers have discretion “to review case-specific mitigating circumstances, such as how long ago the crime was committed, and how the offender has behaved since,” in practice they generally prefer not to take a risk.  The result is categorical rejection based upon status alone.  If challenged, an agency may relent in a particular case, but continue to enforce the “just say no” rule in all others. It now appears that most federal agencies are willing to go along with this result where their own regulations and policies are concerned. In considering what might be done to put some teeth into his exhortation to federal agencies to ensure that people with a criminal record are treated fairly, the Attorney General might consider what Colorado has recently done to ensure agency accountability. Under a law enacted in 2013, Colorado licensing agencies must now report in a public hearing on whether collateral consequences in their regulations and policies “serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(9)(b)(VIII.5).  To assist the legislature in determining agency compliance, the department of regulatory agencies is required to prepare an analysis for each agency that includes “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.  Any proposal to regulate a new profession or occupation must evaluate any proposed disqualification based on criminal record by these same standards.  Colo. Rev. Stat. §§ 24-34-104.1(2)(f), (4)(b)(IV).  Colorado backs up its new procedures with a general anti-discrimination law that governs consideration of conviction in most licensed professions.  See Colo. Rev. Stat. § 24-5-101(1)(a). Colorado is not the only state that polices its agencies, holding them to account for their treatment of people with a criminal record with evidence-based practices.  Many states include provisions in their administrative codes that compel fair consideration of conviction, and provide for the enforcement of these provisions through the courts.  See 50-state chart here.  It is unfortunate that the federal government does not.  Absent the kind of transparency and data-driven accountability that Colorado has introduced into its regulatory scheme, the default rule will inevitably be rejection. Read more

“The president’s idle executive power: pardoning”

As the presidential pardon of everyone’s favorite Thanksgiving galliformes makes front-page news across the country (a tradition that the many human clemency petitioners who have spent years awaiting action must struggle to find the whimsy in), two law professors take the federal clemency system to task in a new Washington Post opinion piece.  In the piece, professors Rachel E. Barkow (NYU) and Mark Osler (University of St. Thomas) argue that the long and multi-tiered review process for federal clemency petitions could be significantly improved if the president would minimize the Justice Department’s involvement in the process while shifting responsibility to a bi-partisan review commission.  From the article: What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties. That’s why the average review time for approved clemency petitions in this administration has been about four years, according to P.S. Ruckman Jr., a political science professor who edits the Pardon Power blog. It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. Read the full article here. Read more