May 1, 2009

"There Are Almost No Absolute Bars:" A Conversation About Reentry and Employment with Glenn E. Martin

Research shows that individuals with criminal records are less likely to commit new crimes or to violate the terms of their parole if they are employed. Quite simply, employing reentrants is good for public safety, and therefore, good for business. Unfortunately, gaining such employment can be a major challenge for somebody returning from prison. We invited Glenn E. Martin, Vice President of Development and Public Affairs at The Fortune Society, to help us unpack this issue and explain how reentrants can address the employment challenges that they face.

Glenn, tell us a little bit about your role at The Fortune Society.

When I originally came to The Fortune Society 16 months ago, it was to help launch the David Rothenberg Center for Public Policy, which is Fortune's way of institutionalizing the policy advocacy work that we've been doing for the past 40 years. My task there was to take a look the programmatic models, the issues that clients were facing, and the barriers that prevented their success and to address them on a systemic level. Direct services are obviously really important to meet an individual's immediate needs, but when you see patterns develop across clients, you realize you have to address them on the systemic level. The Center will help do that, with the help of program staff to identify and advance the issues.

After 10 months here, I took over the communications department, which means that I am in charge of Fortune's messaging, website development, public education campaigns, and media relations. Then three months ago, I took over the development department and am in charge of developing a strategy to secure resources for programmatic and policy work.

Why is securing employment a challenge for people with criminal records?

There are a lot of practical and statutory barriers for reentrants seeking jobs, even those who are qualified. Obviously, there is a lack of soft skills, such as knowing how to engage an employer, showing up to work on time, and relating to colleagues. In addition, there are also statutory barriers and stigma -- in New York State, there are over 100 licensing agencies, each with some kind of barrier to individuals with criminal records. Many of those barriers can be removed with a Certificate of Relief or a Certificate of Good Conduct, which show that New York State considers a reentrant to be "rehabilitated" and that also remove some of the legal barriers that prevent people with criminal records from getting certain jobs or licenses. Most reentrants, however, just can't get over the hurdles required to remove those barriers without assistance from an advocate or an intermediary organization, like the Fortune Society.

There are also regulations that bar people from entire industries. For instance, the home health care industry has a regulation that most people with felony and some misdemeanor convictions cannot work in the industry for 10 years post-conviction and there is no nuance in the regulation. It does not differentiate between the jobs taking care of patients and positions for van drivers or uniform preparers. This also flies in face of New York State's anti-discrimination law, which says that licensing agencies have to use case-by-case evaluation and not blanket barriers in making hiring decisions. Typically, these sorts of regulations and laws that bar people from entire industries are very reactionary and are the result of a particular crime being committed – it makes good politics, but it makes bad policy.

But even there, there are almost no absolute bars – if a person gets a Certificate of Relief or Good Conduct, they can apply, just like anyone else. It's true that barriers exist in law enforcement jobs, some federal positions, and jobs at agencies (like banks) that have federal oversight (such as the Federal Deposit Insurance Corporation). But I always tell people that there are limited absolute bars. If you want to be a lawyer, OK. It's going to be really difficult, but it's not impossible.

What does the law say about what information reentrants must reveal to potential employers?

In New York, employers have the right to consider criminal convictions as far back as they want to see. Some employers are progressive and only ask for the last 5 or 7 years – we think that's great, if they stick to it.

To be clear, I’m saying "criminal convictions" – that means only felonies and misdemeanors, and does not include violations or infractions. Also, youthful offender (YO) adjudications are not fair game. Most people don’t realize they got that adjudication -- and that the reason a judge sentenced them as a "youthful offender" was so that they could avoid the stigma of a criminal record as they become adults. Finally, you are not required to reveal any past arrests that did not lead to conviction.

Having worked for a public interest law firm for years, I’m very "legalese" in the way I talk about these things. I see many organizations that suggest to people to use the penal code for their offense on a job application, as opposed to naming the actual conviction. I think time is money – if you put down a penal code, it sends a message that you are trying to be coy and that could really diminish your chances. It makes more sense to list what is there and to say that you are hoping to follow up in the interview. Some people don’t put down their convictions at all and say that they will discuss this issue at the interview. That usually gets people through door and even gets them jobs – but three to four years later, when they are up for promotion and need a background check, the person who hired them is likely not there. At that point, they have no proof of having disclosed a criminal conviction. When that section is left it blank, the individual looses their rights under Article 23A, because it is considered lying. In fact, you can be charged with a misdemeanor for lying on an application. It's a legal document. The best thing to do is to be honest.

Are there things that employers are not allowed to ask about?

I always tell people to get a copy of their rap sheet before doing an employment search, because a background check can reveal more than person wants to reveal. [Note: Rap sheets can also have errors on them, which is another reason to check what it says before putting in job applications. To get information about obtaining and correcting a rap sheet, click here.] If a person has a conviction for possession of a hypodermic syringe, for example, then an employer's assumption might be about past drug use, which is protected under the Americans With Disabilities Act.

Article 23A, which is part of the New York Corrections Law, provides a clear employment standards statute. This law gives guidance to employers or licensing agencies with 4 or more employees (except law enforcement entities and federal employers). It says that employers must take certain things into account when evaluating an individual with a criminal record for a job:

  • the relationship between the conviction and the duties of the job;

  • whether the person poses an unreasonable risk (in terms of liability);

  • the person's age at time of conviction;

  • the severity of the conviction;

  • the amount of time that has elapsed since the conviction; and

  • any evidence of rehabilitation, including a Certificate of Relief or Certificate of Good Conduct.
New York State promotes a public policy of encouraging the hiring of people with criminal records and requires individualized assessment of each person. Additionally, an employer cannot take into consideration an arrest that did not lead to conviction -- that right is protected under the State's Human Rights Law. Employers also should not be taking into account violations (such as disorderly conduct, or traffic violations). Finally, employers should not be asking about any past alcohol or drug use: under New York City statute, even current alcohol use is protected as a disability. As we know, there is a close correlation between people who have done time in prison and substance abuse history. The Department of Correctional Services reports that about 80% of people who have done time have a substance abuse history.

In the case that an employer has improperly considered some of these factors in making a hiring decision, a person has a right to contest such a denial. Job seekers with criminal records are entitled to get a letter from the employer (delivered within 30 days) describing why the job seeker is not being hired and including whether a conviction record is being considered in the decision-making. No other job seeker has this right, in fact. Job seekers also have the right to file a complaint against the employer, and can visit the New York State Division of Human Rights or the New York City Commission on Human Rights, if the employer is here in the city.

Unfortunately, people take advantage of that recourse very rarely. Results from a study about discrimination in low wage labor markets that I managed in collaboration with Bruce Western and Devrah Pager from Harvard and Princeton Universities, respectively, show that many employers do not know the law exists and many people with criminal records do not realize that job seekers with records have this protection. Now, employers who are familiar with the Americans with Disabilities Act rarely ever discriminate against somebody in a wheelchair, but they will regularly say that they don't accept people with criminal records. You see it on Craig's List all the time: "clean background check required." It's illegal in New York, but employers do it.

That's why we need ways to educate employers about the law. The Employer Education Act does just that: it insures that we develop mechanisms for educating employers and their human resource departments about this law. Among other things, it requires employers to provide post Article 23A in their place of employment and, as of February 2nd of this year, these posters contain the Article 23A anti-discrimination law.

What are good strategies for addressing criminal convictions if they come up in an interview or on the job?

First of all, a person has the right to know what information an employer relied upon to do a background check under the Fair Credit Reporting Act. If an employer is relying on information about an arrest that did not lead to a conviction, as we discussed, the information should not be taken into consideration. If questions about an arrest come up in an interview, I would say that a job seeker should not get into the details at all. If the employer does not respond favorably, I would consider filing a complaint against the employer and against the background check company, which is obligated to report only criminal conviction information.

Again, the best strategies for responding to these questions start before the interview. As you are beginning your job search, start thinking through what evidence of rehabilitation you bring to table and what you have done since the conviction. Take responsibility for the crime, but keep your comments future-focused. Maybe say “Yes, I have a conviction for robbery and here is what I have done since then,” talking about the programs you have completed either in prison or on parole, and any other jobs in which you have been successful.

If you are on parole, I would say that, but only if you follow up to explain what that means: some people who have no idea of what parole involves, and so it helps to say "that means that I have a curfew, that I have to seek and maintain employment, and that I am regularly drug-tested." At the end of the day, employers are concerned about the bottom line. Most employers are concerned with the amount of resources invested in an employee up-front, typically with training costs in the first 90 days of employment. If there is somebody else keeping an eye on a new employee, that can help the bottom line, in terms of reducing turnover and therefore additional training costs.

You direct the David Rothenberg Center for Public Policy at the Fortune Society. One of your stated advocacy priorities for the next few years is to remove counterproductive barriers to employment for job seekers with criminal records. Can you give us an update on your progress with legislation like the Employer Education Act?

Well, we've seen that it’s one thing to get a law passed and another to get it implemented. Interestingly enough, the part that was easy to implement was the signage in the workplace about Article 23A, as I previously mentioned. Most signage companies saw an opportunity to make money on the posters and so they did all the advertising and promoting for us.

The other piece of the Act, requiring employers to provide a copy of the anti-discrimination law, is going to take longer and employer education will be necessary. We’re currently working with large law firms that have employment practices to educate their clients and we'll be sending out posters to 10,000 employers in New York State about the changes in the law. We're encouraged that the New York State Department of Labor posted the law on their website and Elaine Kost, the Federal Bonding Coordinator for the State, has been promoting the change in law through the Department of Labor One-Stop centers and various trainings and presentations.

We are also considering drafting legislation to add attorney's fees to the Human Rights law on employment discrimination for people with criminal records. Currently, there are no legal resources for people who have experienced discrimination based on criminal records, in part because there are opportunities to collect legal fees in these sorts of cases. A person can be assisted pro-bono through the Legal Action Center and the Reentry Law Project at the New York City Bar Association, but they have a limited number of attorneys for all of the 28,000 people being released from state prison this year. This bill would say that, for any lawsuit that ends in a judgment, the attorney is able to also seek fees, incentivizing them to represent people.

Working with the Legal Action Center, we also got a bill introduced to give Family Court judges discretion to reduce child support payments for people who are incarcerated and who do not have the means to pay their child support (in other words, people who have no assets and no income). Currently, incarceration is considered willful unemployment, so judges don't have the discretion to reduce those payments. We see guys coming out with $40,000 or $50,000 in arrears. Those kinds of debts drive them into the underground labor market, which can also lead to more involvement in crime. This bill would stop their child support arrears from accumulating while they are incarcerated, so that they don't come out to those kinds of insurmountable debts upon release.

What strategies would you like to see employers utilize to mitigate the exclusion of workers based on criminal records?

You know, there was a bill drafted by the New York City Bar last year and passed. It says that, if employers do their due diligence through the Article 23A check, they are protected against negligent hiring claims. In other words, if you do your job as an employer, you are protected from liability. That’s huge, and there needs to be education about it, since it responds to a major concern from employers, which is liability.

Some other reasons why hiring reentrants is good for business:

  • employers get qualified employees;

  • employers can take advantage of federal bonding programs, or insurance to indemnify employers for loss of money or property sustained through the dishonest acts of their employees;

  • employers can claim Work Opportunity Tax Credits for hiring people with criminal records;

  • if a person is supervised by parole or probation, there is an added level of protection against the employee going astray and a support system for that person to succeed; and

  • many people with criminal records work closely with intermediary organizations -- such as The Fortune Society -- that can offer services to small- and medium-sized businesses akin to those provided by human resource departments (placement, re-placement if somebody doesn't work out, drug treatment support, etc.).

Hiring reentrants reduces recidivism and increases public safety, and employers can play a role by giving qualified job seekers the opportunity to compete for a job on the merits. It's about bringing everybody up to the starting line.

What effect do you think the stimulus money will have on creating job opportunities for reentrants? Have you noticed any concerted effort to include reentrants as a specific category of jobseekers in any federal or state solicitations?
New York State has decided to invest a considerable amount of its stimulus resources to help make the recent drug law reform a success. There is going to be an increased number of people diverted from the justice system and an increased number resentenced to return to their communities. Stimulus resources will be going to agencies that can help people resettle themselves and reconnect to their families. In conversations we have had with the Division of Criminal Justice Services, those resources will be used mostly for career development-related purposes and invested in programs that provide workforce development for people with criminal records.

The question is: will it be sustainable? New York State is investing more money in the next two years in reentry ($40 million) than all of the resources devoted to the Second Chance Act for the entire country ($25 million). We essentially have a two year window of opportunity to demonstrate that these approaches save money and save lives.


For more information about how to protect yourself from illegal discrimination as a job seeker with a criminal record, take a look at this brochure from the Legal Action Center, starting on page 5.

For more information on how to get and cleanup your New York State rap sheet, see this brochure, also from the Legal Action Center.