Road to Re-Entry: Criminal Records, Ban the Box and Getting Back into the Workforce

Transcription

1 Road to Re-Entry: Criminal Records, Ban the Box and Getting Back into the Workforce Clifford L. Hammond Foster Swift, P.C Northwestern Highway Suite

2 What is it?

3 What is it?

4 Is anyone applying this yet?

5 Hawaii was the first state to approve a ban the box back in Nationwide, over 150 cities and counties have adopted what is known as ban the box.

6 Blue Yellow Orange Grey -- State covers public employers -- State covers private employers -- Other local policies, no state law or policy --No state or local policy Source: National Employment Law Project

7 About a quarter of U.S. workers are now covered by a ban-the box law. The laws extend to both public-sector and some private sector employers as well. Los Angeles, Seattle, San Francisco, New York City, Chicago, Austin, Boston, and Baltimore to name a few major cities apply the laws to all private sector employers.

8 What about Michigan?

9 Ban The Box in Michigan Some local governments have officially banned the box in their hiring: Ann Arbor Detroit (includes vendors with contracts of at least $25,000) East Lansing Kalamazoo (includes vendors with contracts over $25,000) Genesee County Muskegon County Saginaw County

10 Why?

11 Estimates from advocates state that nearly one in three adults, approximately 70 million people in the U.S. have a prior arrest or conviction record.

12 Recent Research Shows: Every week, over 10,000 prisoners are released from federal and state prisons, with over 650,000 offenders returning to their communities each year. Within three years of release, over two-thirds of released offenders are rearrested, over half are reconvicted, and over 40 percent are returned to custody As a result, exoffenders are contributing a growing share to overall crime rates. One potential explanation for high recidivism rates is limited labor market opportunities for ex-offenders. One year after release, as many as 60 to 75 percent of former offenders are not employed in the legitimate labor market. Source: Local Labor Markets and Criminal Recidivism, Crystal S. Yang, Assistant Professor of Law, Harvard Law School, May The paper evaluated four million offenders released from 43 states between 2000 and 2013.

13 Helping ex-offenders find jobs is a top policy priority for good reason. Without a stable job, its tough to build a life free of criminal behaviors and influences. When fewer jobs are available, re-entering offenders are more likely to reoffend.* This increases crime and incarceration rates, which is costly to all of us. Source: Local Labor Markets and Criminal Recidivism, Crystal S. Yang, Assistant Professor of Law, Harvard Law School, May The paper evaluated four million offenders released from 43 states between 2000 and 2013.

14 With over 2 million individuals currently incarcerated, and over half a million prisoners released each year, a criminal record presents a major barrier to employment, with important implications. The Mark of a Criminal Record1, Devah Pager, Northwestern University, American Journal of Sociology, Volume 108, Number 5, March 2003

15 African American and Hispanic men are more likely than others to have been convicted of a crime: the most recent data suggests that an African American man born in 2001 has a 32% chance of serving time in prison at some point during his lifetime, compared with 17% for Hispanic men and just 6% for white men.

16 The Argument Against Ban the Box

17 The Argument Against Ban the Box

18 The Argument Against Ban the Box Ban the box forbids public and private employers from inquiring about an applicant s criminal history. Many employers still do not want to hire ex-offenders. Many ex-offenders would make good employees, and some were convicted of relatively minor crimes. Two recent studies have looked at the effects of ban the box. In one, the gap between call backs for jobs of African American and White applicants in New Jersey and New York City, increased four times after ban the box went into effect. That may be because employers are still allowed to check criminal records before making a final offer, so applicants could be turned away at that point. In the other study, the authors measured the effect of ban the box across the country on employment outcomes of young, low-skilled men. The findings held that African American and Hispanic men without college degrees are significantly less likely to be employed after ban the box that before. See: Doleac, Jennifer, Ban the Box does more harm than good, Brookings, May 31, 2016; Agan, Amanda Y. and Starr, Sonja B., Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment (June 14, 2016). U of Michigan Law & Econ Research Paper No Available at SSRN: Doleac, Jennifer L. and Hansen, Benjamin, Does 'Ban the Box' Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden (January 1, 2017). Available at SSRN:

19 The Argument Against Ban the Box Accordingly, some stated that the overall unintended consequences of ban the box are large, and run counter to one of its goals: reducing racial disparities in employment. Instead they advocate for policies that would provide more information to employers about ex-offenders job-readiness, rather than taking information away. Better yet, they could help disadvantaged ex-offenders improve their job-readiness. The more employable the average ex-offender, the less cautious employers will be about hiring one. See: Doleac, Jennifer, Ban the Box does more harm than good, Brookings, May 31, 2016

20 The Argument Against Ban the Box Other detractors point to their need to ensure a safe workplace and potential for negligent hiring lawsuits or discrimination claims.

21 The Argument Against Ban the Box The ordinary standard for a negligent hiring and retention claim in Michigan requires a plaintiff to produce: Evidence of the appropriate standard for hiring, retaining, or supervising the relevant class of employee. Evidence demonstrating that the employer knew or should have known of the employee's propensity to engage in the challenged conduct. (Verran v. United States, 305 F. Supp. 2d 765, 771 (E.D. Mich. 2004).)

22 The Argument Against Ban the Box Michigan actually enacted a statute in light of these issues MCL d(2) In defending certain actions based on the employer having hired and retained a former criminal offender who caused personal injury, property damage or wrongful death during the course of employment, the employer may introduce the employee s certificate of employability. A certificate of employability is a document issued to a criminal convict who meets certain criteria when released from prison. Under the statue, the certificate of employability, conclusively establishes that the employer did not act negligently in hiring the individual, if the employer know of the certificate at the time of hire. (MCL a(2)) In addition, the statute provides for stricter evidentiary standards in certain negligent retention actions. When an employee who has previously been issued a certificate of employability is hired and then is convicted of or pleads guilty to a felony (or demonstrates that he or she is dangerous to people or property) an employer is not liable for negligent retention unless a preponderance of the evidence establishes that the employer: Was willful in retaining the individual as an employee, Had actual knowledge: of the subsequent felony conviction or plea; or that the individual was dangerous

23 Even Without the Ban the Box Statute Employers Hiring Practices Based on Criminal Convictions are Already regulated by Federal and State Law In 2012, the EEOC issued an Enforcement Guidance Memorandum The EEOC stated it issued the memorandum as part of its efforts to eliminate unlawful discrimination in employment screening for hiring or retention.

24 2012 EEOC Enforcement Guidance Memorandum The EEOC stated that recent studies have found that a significant number of state and federal criminal record databases include incomplete criminal records. A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests. A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI's database were associated with a final disposition. Additionally, reports have documented that criminal records may be inaccurate. One report found that even if public access to criminal records has been restricted by a court order to seal and/or expunge such records, this does not guarantee that private companies also will purge the information from their systems or that the event will be erased from media archives. Another report found that criminal background checks may produce inaccurate results because criminal records may lack "unique" information or because of "misspellings, clerical errors or intentionally inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal activities."

25 2012 EEOC Enforcement Guidance Memorandum The EEOC stated that recent studies have found that a significant number of state and federal criminal record databases include incomplete criminal records. According to the memorandum, the EEOC explained that it enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Whether an employer's reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: "disparate treatment" and "disparate impact."

26 Hypothetical Example: John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system. After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a coworker that Office Jobs, Inc., cannot afford to refer "these drug dealer types" to client companies. However, the same representative refers John for an interview, asserting that John's youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Is this a violation of Title VII?

27 Hypothetical Example Answer: Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.

28 2012 EEOC Enforcement Guidance Memorandum Examples of violation of Title VII: According to the memorandum, the EEOC explained that it enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Whether an employer's reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: "disparate treatment" and "disparate impact."

29 2012 EEOC Enforcement Guidance Memorandum An unlawful employment practice based on disparate impact is established if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer's criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.

30 Arrests The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty. An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. Another reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). Many arrest records in the FBI's database and state criminal record repositories are not associated with final dispositions. Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed. Source: EEOC 2012 Enforcement Guidance Memorandum

31 Arrests Hypothetical Mervin and Karen, a middle-aged African American couple, are driving to church in a predominantly white town. An officer stops them and interrogates them about their destination. When Mervin becomes annoyed and comments that his offense is simply "driving while Black," the officer arrests him for disorderly conduct. The prosecutor decides not to file charges against Mervin, but the arrest remains in the police department's database and is reported in a background check when Mervin applies with his employer of fifteen years for a promotion to an executive position. The employer's practice is to deny such promotions to individuals with arrest records, even without a conviction, because it views an arrest record as an indicator of untrustworthiness and irresponsibility. Is this discriminatory? Source: EEOC 2012 Enforcement Guidance Memorandum

32 Arrests Hypothetical If Mervin filed a Title VII charge based on these facts, and disparate impact based on race were established, the EEOC would find reasonable cause to believe that his employer violated Title VII. Source: EEOC 2012 Enforcement Guidance Memorandum

33 Arrests Hypothetical Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. After several ten and eleven-year-old girls attending the school accused him of touching them inappropriately on the chest, Andrew was arrested and charged with several counts of endangering the welfare of children and sexual abuse. Elementary School has a policy that requires suspension or termination of any employee who the school believes engaged in conduct that impacts the health or safety of the students. After learning of the accusations, the school immediately places Andrew on unpaid administrative leave pending an investigation. In the course of its investigation, the school provides Andrew a chance to explain the events and circumstances that led to his arrest. Andrew denies the allegations, saying that he may have brushed up against the girls in the crowded hallways or lunchroom, but that he doesn't really remember the incidents and does not have regular contact with any of the girls. The school also talks with the girls, and several of them recount touching in crowded situations. The school does not find Andrew's explanation credible. Based on Andrew's conduct, the school terminates his employment pursuant to its policy. Is this discriminatory? Source: EEOC 2012 Enforcement Guidance Memorandum

34 Arrests Hypothetical Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. After confirming that an arrest policy would have a disparate impact based on national origin, the EEOC concludes that no discrimination occurred. The school's policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. The Commission finds no reasonable cause to believe Title VII was violated. Source: EEOC 2012 Enforcement Guidance Memorandum

35 Arrests While Ban the Box is not the law in the state of Michigan, there are still specific requirements regaridng hiring that employers must still watch that mirror some of the Ban the Box issues The Elliott-Larsen Civil Rights Act, PA 453 of 1976 states at MCL a states: (1) An employer, employment agency, or labor organization, other than a law enforcement agency of this state or a political subdivision of this state, shall not in connection with an application for employment or membership, or in connection with the terms, conditions, or privileges of employment or membership request, make, or maintain a record of information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result. A person is not guilty of perjury or otherwise for giving a false statement by failing to recite or acknowledge information the person has a civil right to withhold by this section. This section does not apply to information relative to a felony charge before conviction or dismissal.

36 Arrests The EEOC will look at a decision to disqualify an applicant based solely on criminal conviction will look at a disperate impact. If that is determined, then the EEOC will look at: The nature and gravity of the offense or conduct, The Time that has passed since the offense or conduct and/or completion of the sentence; and The Nature of the job held or sought. An across the board policy that excludes all employment opportunities because of any criminal conduct is not approved of by the EEOC, because it does not focus on the dngers of particular crimes and the risks in particular positon.

37 Employment decisions under Ban the Box, in most cases still provide employers the right to ask about criminal convictions, but they require the employer to get past that initial obstacle first go through the process, know the person and then make a decision. Employers in non-ban the box states and communities are still required to ensure their hiring procedures are consistent with existing federal and state laws and do not intentionally or unintentionally have an unlawful discriminatory impact.

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39 QUESTIONS? Clifford L. Hammond Foster Swift, P.C Northwestern Highway Suite

40 Disclaimer This presentation highlights specific areas of law. This communication is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.