States Slowly Adopting Laws To Ease Ex-Felons' Path to Employment

 by Rich Ehisen

When Saun Hough got out of jail in 2012, he knew reintegrating into society wasn't going to be a cakewalk. Just 20 when he was convicted of second degree murder, he had since spent the better part of the last two decades behind prison bars. Now armed with an associate of arts degree in biblical studies, a certification in Christian counseling and five years of experience working as a drug counselor inside the California prison system, the former Marine believed he had done what he needed to do to get a job and get his life back on track. But months down the road and with numerous job applications seemingly fallen into a black hole, his future was more in doubt than ever. 
 
Hough, who lives in the Los Angeles area, eventually did find an entry-level counseling position, but not before he was turned down cold for numerous jobs he felt he was eminently qualified for. The reason, he says, was always the same: his prison record. 
 
"Trying to find a job when you have a felony conviction is just extremely difficult," he says. 
 
It is a difficulty Hough shares with a significant number of Americans. According to the National Employment Law Project (NELP), approximately 70 million people in the United States — roughly one in every four adults — have a criminal record that could compromise their ability to get a job. A 2010 study by the Center for Economic and Policy Research in Washington D.C. estimated that somewhere between 1.5 and 1.6 million of those are locked out of the job market each year, costing the U.S. as much as $65 billion in annual economic productivity. There is also ample data to show that unemployment is one of the driving forces behind recidivism, or inmate re-incarceration, a leading factor in escalating prison costs across numerous states. 
 
It is also a problem that disproportionately impacts minority communities. For example, the U.S. Census shows that African-Americans account for just over 12 percent of the U.S. population. But a 2011 NELP report shows that African-Americans account for over 28 percent of all arrests, 2.2 times their portion of the population. U.S. Department of Justice statistics show that African-American males are six times more likely to be jailed than Caucasians, with Hispanic males more than two times as likely. Among 18 and 19 year old males, African-Americans are almost 10 times more likely to be incarcerated. Black males also comprise 39 percent of the nation's total number of adult parolees. 
 
While a number of lawsuits have been filed in recent years seeking to force major companies and even the federal government to change their disclosure policies in hiring, a growing number of state and local lawmakers are now also working to address the issue. Their efforts have come primarily through so-called "fair chance" or "ban-the-box" measures, the latter a reference to the box on many job applications where an applicant is asked to state if they have ever been convicted of a crime. In states with ban-the-box laws, job applicants are not required to reveal their past criminal history in the initial phase of the hiring process, potentially giving them a better chance to show a potential employer their qualifications instead of being automatically removed from consideration. They are required to do so if they are selected for an interview or otherwise get past the initial screening. 
 
"The theory is that if you let someone in that position get their foot in the door, the door that has always been shut now might just open," says Steven Luckner, an attorney in the Morristown, New Jersey office of the Ogletree Deakins law firm, which specializes in employment law. 
 
"We're not looking for special treatment," says Hough. "I just want a fair chance to compete. If I'm not qualified for a job, that's fine. That's how the real world works. But if I am qualified to do a job why not at least give me a chance to show it?" 
 
The ban-the-box concept has been around for decades, but getting states on board has been a slow process. After Hawaii became the first to adopt a statewide ban-the-box law in 1998, it would be over 10 years before another state (Minnesota in 2009) followed suit. But more quickly began to come on board. According to NELP, 10 more states have since adopted ban-the-box laws, including four in 2013 and three more, Delaware (HB 167), Nebraska (LB 907) and Illinois (HB 5701), this year. A similar bill in New Jersey (AB 1999) is expected to be signed into law any day, while a Washington D.C. ban-the-box bill has been signed by Mayor Vincent Gray and is now awaiting final approval from Congress. NELP says over 60 cities have also adopted their own ban-the-box measures, including major urban areas like Philadelphia, Seattle, Cleveland, Pittsburgh, San Francisco, Oakland, Austin, Jacksonville, Indianapolis, New York, New Orleans, Tampa, Louisville, Kansas City and Detroit. Retail giants Target and Walmart have also changed their hiring policies to no longer require criminal disclosure in the initial job application process. 
 
The federal government has got into the act, too. While legislation introduced in Congress in 2012 floundered and eventually failed, that same year the U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines that list removing the criminal background question among its best practices in the hiring process. The EEOC guidelines also say employers should be able to show a nexus between any hiring restriction placed on felons and the jobs they are applying for. Not doing so could open up the employer to civil rights litigation. 
 
"If you have a blanket ban on all criminal hires without being able to show a clear nexus, you could be on shaky ground," says NELP staff attorney Michelle Natividad Rodriguez. 
 
Not all ban-the-box measures, however, are created equal. Of the 12 states that now have such laws, only five — Hawaii, Illinois, Massachusetts, Rhode Island and Minnesota — apply the restrictions to both private and public sector companies. The rest — California, Maryland, Delaware, Colorado, Connecticut, New Mexico and Nebraska — enforce the ban only on public employers. Both tallies could soon change. The pending New Jersey measure would apply to both public and private employers, while Georgia Gov. Nathan Deal (R) has promised to bring the Peach State on board this year via an executive order. That order would apply only to public employers, though Deal has said he hopes it will serve as a model for the private sector. A Deal spokesperson did not have a timeline for when the order will be issued, saying the governor is still working out the details of what the order will cover. 
 
While hailed by supporters, ban-the-box measures have drawn sometimes fierce opposition from business groups like the National Federation of Independent Businesses, NFIB, which contends such laws are just another expense (having to pay for new application forms, etc.) and an additional layer of bureaucracy forced on small employers by the government. NFIB has also resisted measures they said would place employers at risk of civil liability for refusing to hire applicants with a criminal history, or for asking the question before a job has been conditionally offered. Statutes can also vary in regard to the size of the employer the laws cover or for how far back a period of time a criminal conviction is reportable. 
 
But all of those challenges are fairly minor, says Brian Arbetter, a partner with the Chicago employment law firm Shepard Mullin. As often as not, he believes, employers misunderstand what ban-the-box laws actually do. 
 
"Mechanically, these bills could cause some small headaches for employers," he says. "But a lot of employers freak out a bit when they hear about them because they think it means they will never be able to hear about an applicant's criminal record. None of the laws I know do that, they only control when an employer receives that information." 
 
Luckner says he hears the same thing from some employers. "They see this as a way to eventually ban all criminal disclosures," he says. 
 
Neither man sees that happening. Even so, Arbetter and Luckner say they believe the tide has definitely turned in favor of eliminating initial criminal disclosures. 
 
"At the end of the day, these are not difficult laws to comply with," he adds. "They are happening and will likely continue to happen, so my best advice for employers is to just get on with it and change your policies now." 
 
Nonetheless, over the last two years strong pushback from business interests has helped defeat ban-the-box legislation in Florida, Michigan, Delaware, Louisiana, Ohio, North Carolina, South Carolina, Virginia and Washington. 
 
As they are fairly new, how much the ban-the-box measures will help folks like Hough remains to be seen. And not everyone in his position agrees that just banning the box is the best policy. Mississippi resident Jerry Dorton once served two years in a California prison for mortgage fraud. Like most convicted felons, he struggled to find work at first after he got out. But he says he would make a point of telling a prospective employer of his history even if he didn't have to at first. Having it come out later, he says, would only create mistrust between him and a potential boss. 
 
"Look, I know I did something really stupid, and I paid the price for it," he says. "For me, working with someone is about trust. So when I got out, I told every person I applied to, 'this is who I am, this is what I did and this is the penalty I paid for doing it. Now if that means you don't think you can ever trust me to work for you, so be it. I'll leave now.'" 
 
It took time, but Dorton rebuilt his life and eventually became a successful business owner himself. But Hough isn't so sure Dorton's system would work for most ex-cons. He says his strong religious faith would have kept him away from the criminal activity that got him locked up in the first place, but thinks others he sees "absolutely" would return to crime if they are unable to find work, particularly if they believe they are doing it to support their families. 
 
"People will do the most irresponsible things," he says. "In the name of responsibility." 
 
Washington D.C. resident Sherman Justice sees validity in both perspectives. Justice, who served five years in an Ohio prison for robbery and drug trafficking, spent months looking for a job when he got out two years ago. Rejection was an almost daily occurrence, making the pull of his previous life very strong. 
 
"I'm very fortunate in that I had a strong support system around me," he says. "But I had those thoughts all the time. It was almost like it was destined to happen." 
 
Even so, he too made a point of telling potential employers about his record right up front. He says most employers reacted positively, even if they didn't hire him. He now works for the National Coalition on Black Civic Participation, an advocacy group that supports ban-the-box legislation. Justice says he would still follow the same path of personal disclosure, but he strongly supports the ban-the-box effort. Anything that helps people in his situation get past that first hurdle, he says, will help them stay out of trouble. It also gives them something they can't get any other way: experience. 
 
"Just getting to an interview means a lot," he says. "You may not get the job, but no amount of practice can really prepare you the way going through an actual interview can. You learn how to best present yourself. You make contacts you can't make any other way. Even if that employer doesn't hire you, they might be able to refer you to someone else."

A Dozen States Have 'Banned the Box' in Hiring 

 
Twelve states have enacted laws aimed at reducing unfair barriers to the employment of individuals with criminal records, according to the National Employment Law Project. In 1998, Hawaii became the first to adopt such a so-called "ban-the-box" initiative, barring both public and private employers in the state from inquiring about a job applicant's potential criminal record until well into the hiring process. Three states —Delaware, Illinois and Nebraska — have passed "ban-the-box" measures this year, but they only apply to the public sector.



The above article is provided by the State Net Capitol Journal. State Net is the nation's leading source of state legislative and regulatory content for all states within the United States. State Net daily monitors every bill in all 50 states, the District of Columbia and the United States Congress - as well as every state agency regulation. Virtually all of the information about individual bills and their progress through legislatures is online within 24 hours of public availability.

To subscribe to the Capitol Journal and access archived issue go to the State Net Capitol Journal

If you are a lexis.com subscriber, you can access State Net Bill Tracking, State Net Full Text of Bills, or State Net Regulatory Text. If you are interested in learning more about State Net, contact us.

For more information about LexisNexis products and solutions, please connect with us through our corporate site.