Ex Felons For Hire

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Written By ESR News Blog Editor Thomas Ahearn

On January 28, 2021, the City of Lakeland, Florida, announced the implementation of a “Ban the Box” process to remove questions about prior criminal records of job applicants from applications, and the new process took full effect on February 1, 2021, according to a news post on the official website of the City of Lakeland.

“My goal as City Manager is to have a more diverse pool of applicants so our workforce mirrors the community’s demographics. It has been proven in other jurisdictions that similar Ban the Box initiatives bring in more applicants from minority communities,” Lakeland City Manager Shawn Sherrouse stated in the news post.

Starting February 1, 2021, Lakeland used an application that eliminated criminal record questions for positions outside of the public safety sector that used applications specific to the police and fire departments. Other cities in Florida with Ban the Box laws include Tampa, Orlando, Gainesville, Jacksonville, Tallahassee, and Sarasota.

“As far as I know, Lakeland will be the first City in Polk County to initiate this type of process that will eliminate a job applicant from checking a box in regard to admitting a previous criminal conviction, and this will provide opportunities for truly reformed individuals to serve our public,” Sherrouse stated on LakelandGov.net.

The Equal Employment Opportunity Commission (EEOC) published guidelines on Ban the Box – “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” – to ensure individuals are not discriminated against based on prior criminal records.

“There is a whole matrix that we use to determine if a candidate is the most qualified and we measure those risk factors that include the time elapsed since conviction, rehabilitation efforts, employment history, character, and the facts surround the criminal offense” Sherrouse added, referring to the EEOC’s Ban the Box guidelines.

Criminal history questions were removed from the City’s initial hiring process and job candidates with a criminal offense will not be judged when submitting an application. Instead, criminal background checks will allow the City to plug factors surrounding the situation into the matrix and determine if an applicant is qualified for the position.

“There are pros and cons to Ban the Box initiatives but we believe the pros far outweigh the cons,” Sherrouse stated in the news post. “We will increase our pool of applicants, provide a second chance for qualified individuals, and open our job market to those that made a mistake but paid their dues to society.”

Ban the Box legislation started in 1998 with Hawaii being the first state to pass a law restricting employers from asking about a job candidate’s criminal record prior to a job offer. Since then, legislation has been enacted in 36 states and more than 150 municipalities, according to the National Employment Law Project (NELP).

Data provided by the EEOC shows that criminal histories are impacting the ability to hire minorities because arrest rates are higher with African American and Hispanic males at rates up to three times their proportion of the general population. NELP estimates that 70 million U.S. adults have an arrest or conviction record.

“Ban the Box” laws and Second Chance Programs that help allow ex-offenders with a prior criminal record an opportunity to find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.

Employment Screening Resources® (ESR) – which was named the #1 screening firm in 2020 by HRO Today – offers a white paper on “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce,” an “ESR Ban the Box Resource Guide,” and a Ban the Box Resource Page. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not
provide or offer legal services or legal advice of any kind or nature. Any
information on this website is for educational purposes only.

© 2021 Employment Screening Resources® (ESR) – Making copies of or using any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.

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Skaff: The Hypocrisy of Police Reform Legislation | Columnists | roanoke.com  Roanoke Times

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Daunting job awaits new St. Louis mayor as city besieged by violent crime  STLtoday.com

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On December 10, 2020, the New York City Council amended New York City’s Fair Chance Act (FCA), also known as the “ban the box” law. The recently enacted amendments will take effect on July 29, 2021.

Relevant Fair Chance Factors

The current New York City FCA regulations apply to an applicant’s arrest and conviction history and contain eight factors that are essentially the same as those set forth in the New York State Correction Law, Article 23-A, for analyzing whether an employer may “take adverse action against any applicant” based on the applicant’s arrest and conviction history. The new amendments add “relevant fair chance factors” that extend the FCA’s coverage to additional scenarios beyond an applicant’s arrest and conviction history. The newly enacted relevant fair chance factors apply to (i) applicants with pending arrests, (ii) employees pending arrests, and (iii) employees with criminal convictions. The new FCA relevant fair chance factors are:

• “the policy of the city … to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
• “the specific duties and responsibilities necessarily related to the employment held by the person”;
• “the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities”;
• “whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations”;
• “the seriousness of such offense or offenses”;
• “the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public”; and
• “any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.”

The new relevant fair chance factors in the FCA are the same ones previously implemented in the FCA regulations, with one exception. Instead of eight factors, there are seven FCA relevant fair chance factors—deleting from consideration “[t]he time that has elapsed since the occurrence of the … applicant’s criminal conviction” factor. While this factor was deleted in the FCA’s relevant fair chance factors, employers may still want to consider that factor as part of the New York State Correction Law Article 23-A factors—which otherwise are almost identical to the FCA relevant fair chance factors and apply in New York City.

The amended FCA requires that employers affirmatively request from applicants information relating to the relevant fair chance factors. While this obligation is new to the FCA ordinance itself, the regulations implementing the FCA already contained this requirement.

Adjournments in Contemplation of Dismissal

Under the FCA, employers have been permitted to inquire about and consider only pending actions. Under the amendments, an action that has been adjourned in contemplation of dismissal is not considered a “pending action” (but seemingly a nonpending action) “unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.” As a result, employers may not ask about adjournments in contemplation of dismissal unless they have been restored for further prosecution.

Violations and Noncriminal Offenses

Pursuant to the amendments, unless specifically required by law, employers cannot make any inquiry or consider the following:

• violations (other than traffic infractions) for which the possible sentence is a term of imprisonment of 15 days or fewer; and
• noncriminal offenses as defined by the law of another state (e.g., noncriminal disorderly conduct). It is unclear exactly what constitutes a noncriminal offense.

The pre-amendment FCA prohibits consideration of nonpending arrests; criminal accusations; adjournments in contemplation of dismissal (unless revoked and restored to the docket, as noted above); youthful offender adjudications; and convictions sealed pursuant to certain sections of the criminal procedure law. The new FCA amendments close the gap, also prohibiting inquiries into these types of records. Once the amendments become effective, employers may not inquire about or consider the types of records listed in this subheading.

FCA Applied to Applicants and Employees

The amendments clear up any confusion as to whether the FCA applies to employees or only to applicants. It applies to both. The amendments fill in a gap left open by the original FCA. The original FCA applied to arrests and convictions for applicants, but perhaps not for employees. The amendments will apply the FCA to (i) pending arrests involving applicants, (ii) pending arrests involving employees, and (iii) convictions of employees.

Newly Codified Definition of “Conditional Offer of Employment”

The amendments add a definition of “conditional offer of employment” (consistent with the one already in the accompanying regulations) as “an offer of employment, promotion or transfer which may only be revoked based on one of the following”:

• “[t]he results of a criminal background check,” after the FCA process has been followed;
• “[t]he results of a medical exam as permitted by the [A]mericans with [D]isabilities [A]ct”; or
• “[o]ther information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.”

Most typical employer screening items or activities (e.g., drug screenings, employment and reference checks by consumer reporting agencies, etc.) will not fall into the third “other information the employer could not have reasonably known before making the conditional offer” category. This significant definitional addition may mean that New York City employers that generally use other, post-conditional-offer activities (e.g., drug screens) as part of their assessments must implement two-tiered screenings in which employers first receive noncriminal reports (e.g., drug screens), just before extending conditional offers. Then, after reviewing other information (e.g., drug screens, etc.) and before making conditional offers, employers would receive and review criminal history reports (and the few other items noted above—e.g., medical exam results) following the conditional offers.

Employers may want to ensure that their background check processes account for these changes in New York City law once they are effective.

Adverse Employment Action Allowed for Intentional Misrepresentation

The FCA had left open the question of whether employers were permitted to take adverse action against applicants and employees who had made intentional misrepresentations regarding their arrest or conviction histories. The amendments clarify that an employer may “tak[e] adverse action against an applicant or employee who is found to have made intentional misrepresentations regarding their arrest or conviction history, provided that such adverse action is not based on a failure to divulge information that a person may not be required to divulge … and provided further that the employer provides the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and gives the person a reasonable time to respond.”

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Criminal justice in America is at a crossroads. The election of President Biden — whose party is aligned with Black Lives Matter, who called Antifa “an idea” and who cites “systemic racism” as the major problem facing black Americans — will make the next four years challenging for proponents of effective policing.

This challenge will be felt not only by those on the thinning blue line, but also by those living in deteriorating urban enclaves that saw homicides and shootings spike in the second half of 2020.

Most law-enforcement policy is set by state and local governments, many of which have acted recently to hamstring cops and hack away at policing budgets. But the incoming Biden administration will have significant influence over how the debate plays out on the ground.

The next US attorney general will set the agenda at the Department of Justice, and there is every reason to expect the agenda to go backward, reverting to Obama-era practices. The Obama DOJ initiated numerous “pattern-and-practice” investigations of police departments based on racial disparities in various enforcement outcomes.

Should Team Biden reinstate this model, cities could see crime continue to rise. A troubling study, coauthored by Harvard economists Roland Fryer and Tanaya Devi, assessed the impact of pattern-and-practice investigations under former President Barack Obama. It found a strong causal connection between some of those investigations — the ones that followed viral incidents of police use of force — and spikes in serious crime.

In Baltimore, Chicago, Cincinnati, Ferguson, Mo., and Riverside, Calif., investigations led police to scale back proactive policing. Each of these jurisdictions saw sharp drops in police-initiated interactions, such as pedestrian stops; as a result, “almost 900 excess homicides and almost 34,000 excess felonies” occurred over a two-year period.

The last national “reckoning” on race and policing didn’t just broaden the influence of Black Lives Matter; it also gave birth to the “progressive-prosecutor” movement. In urban jurisdictions around the country, defense attorneys and self-styled criminal-justice reformers began targeting district, state and county attorney races. That bid has proved extremely successful, thanks in part to the financial resources poured into those races by George Soros.

The movement has helped install Larry Krasner in Philadelphia, Kim Foxx in Chicago, Rachel Rollins in Boston, Marilyn Mosby in Baltimore, Chesa Boudin in San Francisco, George Gascon in Los Angeles, John Creuzot in Dallas, Wesley Bell in St. Louis County, Kim Gardner in St. Louis and Eric Gonzalez in Brooklyn. Local prosecutors have upended the system by dropping or diverting more cases, requesting bail and pretrial detention less often, supporting more parole bids and declining to prosecute entire categories of criminal conduct.

In some of these cities, US attorneys have sought to mitigate the harm of these policies by stepping up to prosecute cases with a federal dimension. If the progressive-prosecutor movement expands into the federal government with the appointment of soft-on-crime US attorneys, we could see a decline in the number of cases brought against violent criminals and drug dealers, as well as more leniency when it comes to charging decisions and plea bargaining. We have every reason to expect such a shift to affect crime rates in those jurisdictions.

A Biden administration could also decide to reduce or eliminate federal aid to local police departments already under new financial pressures. One initiative that could be on the chopping block is the 1033 program, which provides surplus military equipment (rifles, body armor, armored personnel carriers and so on) to local departments.

Progressive critics charge that the 1033 program represents the “militarization” of local police and leads to a perception of cops as an occupying force in communities. But denying local police equipment will only make it harder for them to do their jobs during a time of increasing violent crime.

The Joe Biden of 1994 is gone. Before announcing his presidential candidacy, he repudiated his role in passing the then-popular-now-infamous crime bill. His campaign site featured all the race-focused rhetoric that one would expect to see from far-left police critics.

Vice President Kamala Harris has worked to rehabilitate her public image, recasting herself as a “progressive” prosecutor. These shifts in tone and approach reflect the real pressure exerted by groups like Black Lives Matter, their financial backers and their allies in the Democratic Party. The only question is whether, and to what degree, those shifts will manifest themselves in more consequential policy decisions.

Public safety hangs on the answer.

Rafael A. Mangual is a senior fellow and deputy director of legal policy at the Manhattan Institute and a contributing editor of City Journal, from which this column was adapted.

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Landing a job can be a difficult process, and it’s even harder for those who have a criminal history. For years, most job applications asked whether the candidate had ever been convicted of a crime. Job seekers having to answer this question, without the ability to provide any context to their answer, often gave employers a quick reason to discard the application and move on to the next.

In an effort to give job candidates who have been convicted of a crime the chance to make a good first impression, a movement to get employers to stop including this question on job applications started – called Ban the Box. It is important for employers to understand what Ban the Box is, how it started and the laws that now surround it. 

What is Ban the Box?

Traditional employment applications include a question on whether a candidate has been convicted of a crime. There are usually two boxes – one for yes, the other for no. The job applicant is required to check one. But “the box” is said to be an unreasonable employment barrier to people with criminal histories.

Social justice advocates and employment experts say those convicted of crimes should be allowed to prove their qualifications for a job instead of being eliminated early in the process. With this in mind, there has been a push over the past two decades for employers to remove this type of question from the initial job application and instead ask it later in the hiring process. In theory, this gives job candidates the chance to make their initial case for why they should be hired. It lets them be evaluated on their qualifications, rather than on their criminal convictions, which may or may not give insight into the type of employee they would be.

What started Ban the Box?

Ban the Box is a movement in response to soaring rates of incarceration in the United States over the past few decades. Data from the National Conference of State Legislatures shows that an estimated 1 in 3 Americans have a criminal record.

The box is said to discriminate against Black and Hispanic males, according to the NCSL. Because of factors such as economic disadvantage, racial profiling and long-standing prejudices, these demographics have higher rates of criminal history than, for instance, white males. Thus, they are more likely to be rejected for employment if an application asks about criminal history.

In 1998, Hawaii became the first state to enact specific legislation on when employers could inquire about a job candidate’s criminal history. However, it wasn’t until six years later that the Ban the Box movement started. In 2004, All of Us or None, a national civil rights movement of formerly incarcerated people and their families, launched the Ban the Box campaign to give convicted criminals a better chance of finding work after their time in jail or prison.

“The campaign challenges the stereotypes of people with conviction histories by asking employers to choose their best candidates based on job skills and qualifications, not past convictions,” the group writes on its website.

The movement initially focused on public employers, like government agencies, but eventually expanded to include private employers as more organizations joined the movement.

Is Ban the Box effective?

A study by the Collateral Consequences Resource Center found that Ban the Box laws are “generally effective in increasing employment opportunities for people with a criminal history.” 

But not all studies have confirmed the effectiveness of Ban the Box. The U.S. News & World Report found some studies that show Ban the Box laws could have a negative impact.

“When employers aren’t allowed to ask about applicants’ criminal background early in the hiring process, they may be more likely to assume certain applicants – especially black and Hispanic men – have a criminal history, denying jobs to qualified applicants who don’t have a criminal history,” wrote Casey Leins in the article, summarizing the findings.

Despite this risk, many advocates claim Ban the Box is an important step on the road to fairness in hiring. 

What states and municipalities ban the box?

No state entirely prohibits employers from asking about criminal convictions. However, according to the National Employment Law Project (NELP), 36 states have enacted Ban the Box laws, with varying scope, requirements, exceptions and penalties for violations (often fines amounting to thousands of dollars). As the first state to pass legislation restricting when public and private employers can ask about a past criminal conviction, Hawaii has been a leader in the Ban the Box movement.

Another leader is California. In 2018, the state passed the California Fair Chance Act, which forbids employers with five or more employees to ask about criminal history until they have made a conditional offer of employment to the applicant. California employers must also take these steps:

• Warn candidates if they are considering rejecting them because of their criminal history.
• Hold the job open for five days to give candidates a chance to respond.
• Notify candidates when they are rejected because of criminal history.

Although many states have banned the box only for public employers, a considerable number has banned it for private employers as well. Here is a breakdown of states, and some cities and counties, with Ban the Box laws that apply to private employers. To ensure full compliance with these laws and ordinances, employers are encouraged to seek advice from their legal counsel.

• California: Employers with five or more employees must make a job offer before conducting a background check or asking the applicant about previous criminal convictions.
• Colorado: Employers are prohibited from asking about criminal history in an initial job application.
• Connecticut: Employers are prohibited from asking about criminal history on job applications, with some exceptions.
• Hawaii: Employers are prohibited from conducting background checks until after they’ve made a job offer. They may then ask only about felony convictions within the past seven years and misdemeanors within the past five (excluding periods of incarceration).
• Illinois: Employers with at least 15 employees are prohibited from conducting background checks before holding a job interview. If there is no interview, they may conduct a background check only after making a job offer.
• Massachusetts: Employers are banned from asking about criminal history on job applications, and from asking about certain crimes later in the hiring process.
• Minnesota: Employers are prohibited from asking about criminal history on job applications (with a few exceptions).
• New Jersey: Employers are banned from asking about criminal history during the “initial employment application process.”
• Oregon: Employers cannot deny applicants an interview solely because of a past criminal conviction.
• Rhode Island: Employers with at least four employees are prohibited from asking about criminal history on job applications.
• Vermont: Employers are prohibited from asking about criminal history on job applications.
• Washington state: Employers are prohibited from conducting background checks until they have deemed an applicant otherwise qualified.
  
• Washington, D.C.: Employers are prohibited from conducting background checks until after making a job offer.

In addition to these states, according to NELP, some 150 local jurisdictions have ordinances regulating inquiries into a job applicant’s criminal history. When state laws and local ordinances are considered together, roughly three-fourths of the U.S. population lives in a Ban the Box jurisdiction. 

These are some city and county ordinances in states that don’t already have Ban the Box laws for private employers:

• New York City: The city’s Fair Chance Act bans businesses with four or more employees from conducting criminal background checks before making a conditional offer of employment. The city’s law is stronger than New York state’s, which applies only to public employment.           

• Louisville, Kentucky: The city may end contracts with companies that do not ban the box.

• New Orleans, Louisiana: Contractors doing business with the city are prohibited from asking about criminal history on job applications.

• Baltimore, Maryland: Businesses with 10 or more employees are prohibited from conducting background checks until they’ve made a job offer.

• Detroit, Michigan: Companies doing business with Detroit (with contracts over $25,000) are prohibited from asking questions about criminal convictions until they have conducted an interview or deemed the candidate otherwise qualified.

• Kansas City, Missouri: Private employers with at least six employees are prohibited from conducting criminal history checks until after job interviews.  

• St. Louis, Missouri: Private employers with at least 10 employees cannot conduct criminal history checks until after job interviews. When making hiring and promotion decisions based on criminal record, employers must demonstrate that the decision is based on all available information. Hiring forms and job advertisements must not exclude applicants based on criminal history.  

• Philadelphia, Pennsylvania: All employers with at least one employee are prohibited from conducting background checks prior to a job offer.

• Pittsburgh, Pennsylvania: Contractors and vendors doing business with the city are prohibited from conducting criminal history checks before deeming an applicant otherwise qualified.

• Austin, Texas: Employers with at least 15 employees are prohibited from conducting criminal background checks before making a job offer.

• Madison, Wisconsin: Contractors doing business with the city (on contracts worth at least $25,000) are prohibited from asking criminal history questions or conducting background checks before making a job offer.  

Editor’s note: Looking for the right background check service for your business? Fill out the below questionnaire to have our vendor partners contact you about your needs.

Is there a federal Ban the Box law?

The federal Fair Chance Act is scheduled to take effect on Dec. 20, 2021. If you are a contractor with the U.S. government, you will be required to make a conditional offer of employment before requesting information on an applicant’s past criminal convictions.

The law also applies to employment in all federal agencies, with exceptions for jobs involving access to classified information or “sensitive law enforcement or national security duties.”

Why should companies ban the box?

Job seekers with criminal histories might be applying to your company. Some of them might be the best people for the job. So, even if you’re not in a Ban the Box jurisdiction, you may want to consider enacting your own company policies. Hiring these candidates could contribute to your company’s profitability as well as social justice.

Here are three factors to consider if you’re deciding when (or whether) to ask about a candidate’s criminal history:

• The relevance of the conviction to the job
• The time elapsed since the conviction
• The applicant’s job history and behavior since the conviction

Discussions of Ban the Box should involve your human resources team, executives, and perhaps even the direct supervisors of those who will be joining your company.

What companies have banned the box?

U.S. companies that have banned the box or taken other initiatives on behalf of job seekers with criminal histories include American Airlines, Coca-Cola, Facebook, Google, Greyston Bakery, Koch Industries (including Georgia-Pacific), the Libra Group, PepsiCo, Plank Industries (including Under Armour), Prudential Financial, Starbucks, Uber and Unilever. 

What other laws should employers be aware of?

The U.S. Equal Opportunity Employment Commission requires you to obtain a job applicant’s written permission before conducting a background check on them. It also issued guidance on Ban the Box in 2012. The EEOC says employers that base hiring decisions on an applicant’s arrest or conviction record may violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. [Read related article: How the EEOC Impacts Small Businesses]

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