Talk Poverty: We Need Fair Chance Hiring of People With Criminal Records

The police shooting of Michael Brown provides yet another reminder of the need to address decades of over-criminalization and under-employment that have punished communities of color.   A timely Center for American Progress report, “How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records” – co-authored by Rebecca Vallas and Sharon Dietrich – helps advance a comprehensive criminal justice reform agenda as Americans struggle to respond to the troubling developments in Ferguson and across the nation.  Work plays a key role in that agenda.

Work not only reinforces an individual’s sense of pride, purpose and identity – and, of course, allows an individual to earn a living – but also contributes to strong communities and a thriving economy.  When one in four Americans faces the very real prospect of being locked out of the labor market because of a criminal record, then we all suffer a great loss in productivity and human capital.  However, if we seize on promising solutions, we can change this reality and create new opportunities for people who are struggling against significant odds to turn their lives around.

As featured in the CAP report, multiple strategies must be pursued in order to address the collateral damage caused by the proliferation of criminal background checks for employment. It starts with aggressive enforcement of federal civil rights and consumer laws that are already on the books to strictly regulate employers and the background check industry, including Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act.  Reform must also include broader sealing and expungement of misdemeanor and felony records, correcting faulty criminal records databases, and strengthening appeal protections that allow workers to navigate the thousands of occupational licensing laws that require criminal background checks.  Ultimately, we must create a process that allows people to compete for employment based on their merits instead of being stigmatized by their criminal records.

Significantly, organizations and elected officials from across the ideological spectrum have rallied around fair chance hiring reforms.  Fair chance hiring incorporates “ban the box” policies, which remove the criminal history question from the job application and delay the background check until later in the hiring process.  Fair chance hiring also incorporates the criminal background check guidelines adopted by the U.S. Equal Employment Opportunity Commission (EEOC), which require employers to take into account the age of the offense, whether the offense is related to the individual’s job, and whether the individual has been rehabilitated.  And finally, fair chance hiring calls for strong standards of accuracy and transparency to maintain the integrity of the background check and protect workers against unfair and arbitrary treatment.

In just the past two years, eight states passed fair chance hiring laws, which increasingly extend not just to government employers but private sector employers as well.  Most recently, Republican Governor Chris Christie of New Jersey signed fair chance hiring legislation, stating, “We are banning the box and ending employment discrimination.”  There are now 13 states and over 80 cities and counties that have adopted ban the box and other fair chance hiring reforms.  And three of the top five U.S. retailers – Walmart, Target and Home Depot – have also joined the effort by delaying criminal history inquiries until later in the hiring process.   Meanwhile, 2015 promises to be another big year, with fair chance hiring campaigns already underway in Ohio, Texas, New York City, and Los Angeles, to name just a few places.

These reform policies can have a measurable impact on employer hiring practices.  For example, in the four years since Durham implemented its fair chance hiring policy, city officials have documented a seven-fold increase in the hiring of people with criminal records.  Progress has also been demonstrated in Minneapolis and Atlanta since the enactment of their fair chance hiring policies.

While fair chance hiring is not a panacea for all barriers associated with a criminal record, it is a strategy that resonates deeply with communities severely impacted by over-criminalization.  It provides a platform to engage elected officials in a serious debate about the devastating legacy of the War on Drugs and its effect on struggling families and communities.  In fact, “ban the box” was the brainchild of a membership organization of the formerly incarcerated, called All of Us Or None. Together with faith-based leaders, including the PICO Network, the Formerly Incarcerated and Convicted People’s Movement, and other allied organizations, All of Us Or None is fighting to restore the full rights of people with criminal records to access employment, housing, education, public assistance, and the vote.

Now is the time for the federal government to act boldly, building on the wave of fair chance hiring reforms at the state and local levels.  The Obama Administration should require fair chance hiring by federal contractors and clean up the flaws in the federal hiring process, which unfairly disadvantage people with criminal records.  The recommendation of President Obama’s My Brother’s Keeper Task Force resonates loud and clear:  “Our youth and communities suffer when hiring practices unnecessarily disqualify candidates based on past mistakes.  We should implement reforms to promote successful reentry, including encouraging hiring practices, such as ‘Ban the Box,’ which give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits as they reenter the workforce.”

Given the bi-partisan support for criminal justice reform, backed by organizations likeRight on Crime, the new 114th Congress will also be well-positioned to enact fair chance hiring legislation.  The new Congress should immediately take up the REDEEM Act, co-sponsored by Senators Corey Booker (D-NJ) and Rand Paul (R-KY), as well as legislation sponsored by Congressmen Bobby Scott (D-VA) and Keith Ellison (D-MN)  that would correct the millions of faulty background checks for employment  generated each year bythe FBI.

These are challenging times for the nation. But if ever there were a time to seize momentum and make lasting change in the lives of people with criminal records, this is it.

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About the Author

Maurice Emsellem

Fair Chance Program Director, National Employment Law Project

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