Testimony in Support of the Fair Chance Act

Paul Keefe

Testimony of Paul Keefe, Senior Staff Attorney
Next Door Project, Community Service Society of New York
In support of the Fair Chance Act, Intro. 318
Civil Rights Committee of the New York City Council
December 3, 2014

This testimony is presented on behalf of the Community Service Society of New York (“CSS”), a nonprofit organization serving low-income New Yorkers for over 175 years. CSS has long believed that work is the surest pathway out of poverty, and, since 2008, our legal team has addressed employment barriers faced by people with criminal records. Through our Next Door Project, we train and supervise a cadre of retired senior citizen volunteers to help individuals obtain, understand, and fix mistakes on their criminal records, reaching over 500 clients annually. Additionally, we litigate individual and class action cases, help people obtain certificates that demonstrate rehabilitation, and advocate for policy changes on the state and local level.

The Fair Chance Act amends the New York City Human Rights Law to accomplish two primary goals. First, it implements a “ban the box” policy: private and City employers can’t search for or ask about a prospective employee’s criminal record until after offering that person a job. If employers want to withdraw the offer after a background check, they must explain their decision in writing and how it complies with current law, which already prohibits declining employment to people simply because they have a record. The employer must then give the applicant a copy of the background report with seven days to correct any mistakes, offer evidence of good conduct, and engage in an interactive process to find the best position for the applicant.

Second, the Act offers a second chance for people with old convictions: employers can’t use criminal convictions against a prospective employee after a certain amount of time has passed: five years for a misdemeanor and ten years for a felony. The time runs from the date the person is sentenced or released from incarceration, whichever is later. Studies show that the passage of time is the most reliable indicator that a person will no longer engage in criminal activity. These lookback periods are based on research showing that, after about seven years, a person with a criminal record has no more likelihood of reoffending than someone without, and match time periods in Massachusetts law. San Francisco bans inquiry into all convictions more than seven years old, and Hawaii’s time limit is 10 years.

The Fair Chance Act covers both private employers and City government, but it does not affect jobs where federal, state, or local laws require an official background check to prevent people with certain convictions from working in sensitive areas. For example, federal law governs institutions, like banks, insured by the Federal Deposit Insurance Corporation, and it prevents them from employing anyone who was convicted of, or entered into a pretrial diversion program for, a charge involving dishonesty, breach of trust, or money laundering.(1)  State law requires, with very limited exceptions, institutions serving the mentally ill, developmentally disabled, or providing home health aide services to deny employment to people convicted of a sex offense and, within the previous ten years, a felony involving violence along with several other felonies and misdemeanors.(2)

For those jobs, the employer can tell prospective employees that it does background checks and that certain convictions are disqualifying, though a person may become qualified with a certificate of relief from disabilities or certificate of good conduct. Only when employers are not constrained by legal requirements does the Fair Chance Act apply, and it dovetails with existing City and State law prohibiting employers from denying a job (or a license to do a job) simply because the person has been convicted of a crime.(3) Correction Law Article 23-A states that all public and private employers cannot base an employment decision on a conviction unless it is directly related to the job or otherwise poses an unreasonable risk. Before determining that a person’s conviction history is directly related to the job or hiring the person would otherwise pose an unreasonable risk, employers have to consider several factors, including:

• New York public policy encouraging employment of people with criminal records;
• The specific duties and responsibilities of the job and the bearing, if any, of the person’s conviction history on his or hers fitness or ability to perform them;
• How long ago the offense occurred, how serious it was and the person’s age at the time;
• The person’s evidence of rehabilitation; and
• The employer’s legitimate interest in protecting property, specific individuals, or the general public.

Currently, some employers simply refuse to consider job applicants who check “the box” verifying that they have a criminal record. Those employers are clearly not performing the appropriate evaluation the law presently requires.

The Fair Chance Act promotes racial equality and reduces recidivism

The racial disparities present in the criminal legal system are well-known. In New York, African-Americans and Hispanics are, respectively, ten and five times more likely to be imprisoned or on parole than Whites and seven and three times as likely to be in jail.(4)  In 2010, out of the total incarcerated population in the United States, 39% were White (compared to 64% of the total population), 19% were Hispanic (compared to 16% of the total population), and 40% were Black (compared to 13% of the total population).(5)  These numbers are the result of racial disparities that begin at arrest and follow people throughout their experience with the criminal legal system.(6)

Prior to incarceration, more than two-thirds of male prisoners were employed and more than half were the primary source of financial support for their children.(7)  Once a person has a criminal record, however, his or her economic prospects plummet. Within one year after release from incarceration, 60% of people are unemployed,(8) and those who have been incarcerated who do manage to obtain employment work approximately nine fewer weeks each year, earn less money—approximately 40% less in annual earnings—and have limited upward mobility, losing $179,000 by age 48.(9)  Ensuring that all New Yorkers have a fair opportunity to be considered on their qualifications first—rather than denied outright—will strengthen families and communities.

After submitting a job application, people with criminal records are only half as likely to get a call back than those without; for African-American applicants, the likelihood is reduced to one-third.(10)  New York City employers offer jobs or second interviews to 17.2% of whites with criminal records, but only 15.4% of Latinos and 13.0% of blacks with no criminal record at all.(11)  Studies consistently show that employment is one of the best ways to reduce recidivism because it strengthens community ties and social connections, encouraging positive actions and reducing antisocial behavior.(12)  Reducing unnecessary barriers to employment of people with criminal records will positively impact the employment opportunities of New Yorkers of color, and it is key to reducing racial and economic disparities.

Implementing the Fair Chance Act will not be burdensome for employers

This bill increases employers’ pool of available employees by not excluding applicants simply because of their conviction histories, and it works without changing most employers’ current background check processes: nationally 94 percent of employers who use background checks do not run them until after a job interview; 64 percent wait until a job offer.(13)

The Fair Chance Act does not require an employer to hire someone with a criminal record. It simply defines a process designed to level the playing field for people with criminal records when being evaluated for employment. Penalties for violating it are serious, but not unreasonable:  Employers who circumvent the new law face a minimum fine of $1,000 and a legal presumption that they engaged in discrimination based on criminal record. The amount of this fine is in line with recent legislation passed by the City Council: the maximum fine for tenant harassment was just doubled from $5,000 to $10,000, and Paid Sick Leave fines are, for successive violations, $500, $750, and $1,000.

These penalties only come into play, however, if an employer inquires about an applicant’s record before a conditional job offer or, if the employer wants to withdraw the job offer, fails to explain why, provide a copy of the background check, and seven days to respond. There is no extra paperwork or process for an employer who does not ask about criminal convictions, for an employer who asks but decides to hire the person anyway, or for an employer who simply decides not to hire the person after the seven-day period. The Fair Chance Act is careful to only impose obligations on employers who inquire about an applicant’s criminal record.

Rather than creating a new burden for employers, this bill will enhance employers’ compliance with Correction Law Article 23-A, which requires employers to individually evaluate each applicant with a criminal record as an individual.(14)  Additionally, when employers determine candidates’ eligibility using Article 23-A, they gain protection against negligent hiring lawsuits.(15)

Anecdotal evidence and research show that individuals with criminal records work harder, have less turn-over, and readily develop into leaders. “My new employees are loyal, devoted to the company, and have played an enormous role in our success,” said Franklin Cruz, a Bronx business owner who, though initially skeptical, has been hiring people with records for thirteen years.(16)  His experience is supported by data. Evolv, a company that evaluates large amounts of human resources statistics to help companies profile successful employees, has found that “employees with criminal backgrounds are 1 to 1.5 percent more productive on the job than people without criminal records.”(17)

Large-scale employers have seen the benefits of giving everyone a fair shot at employment as well. At the beginning of this year, Target, the nation’s second largest retailer, joined the ranks of employers who have removed inquiries about criminal histories on job applications, following the lead of Wal-Mart, which removed the question in 2010.(18)

There is precedent across the country for enacting the Fair Chance Act. Hawaii, Massachusetts, Minnesota, New Jersey, and Rhode Island and San Francisco, Philadelphia, Seattle, and Buffalo prevent public and private employers from early inquiries into an applicant’s conviction history.(19)  By moving the inquiry later in the hiring process, Austin has increased the number of qualified job applicants. “There are extremely talented and qualified people who happen to be ex-offenders. They are just as productive as people who do not have criminal records,” said Mark Washington, Austin’s human resources director.(20)

The Fair Chance Act treats all potential employees, whether or not they have a criminal record, equally until one of them is chosen for hire. At that point, a background check may be done, and an employer can still, under existing law, refuse to hire the person if the conviction is directly related to the job or hiring the individual would pose an unreasonable risk. This ensures that people with conviction histories are considered on their present merits instead of their past mistakes, and it creates an opportunity for the employer and job-seeker to come to an agreement about what position is appropriate given the applicant’s record. In doing so, it furthers the goal of existing laws that require people with convictions to be viewed as individuals, rewarding their rehabilitation with the opportunity for meaningful work.

Thank you for the opportunity to comment on this legislation.

 

 

  1. 12 U.S.C. § 1829.
  2.   N.Y. Exec. L. § 845-b.
  3.   N.Y. Exec. L. § 296(15), N.Y. City Admin Code § 8-107(10). Employers are completely prohibited from asking about or acting upon any arrest that did not lead to a criminal conviction. N.Y. Exec. L. § 296(16), N.Y. City Admin Code § 8-107(11).
  4.   CHRISTOPHER HARTNEY & LINH VUONG, CREATED EQUAL: RACIAL & ETHNIC DISPARITIES IN THE U.S. CRIMINAL JUSTICE SYSTEM 20–21 (Nat’l Ctr. on Crime & Deliquency 2009), available at http://www.nccdglobal.org/sites/default/files/publication_pdf/created-equal.pdf.
  5.   Leah Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity, PRISON POLICY INITIATIVE (May 28, 2014), http://www.prisonpolicy.org/reports/rates.html.
  6.   SENTENCING PROJECT, REDUCING RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM 4–5 (2008), available at http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf
  7.   PEW CHARITABLE TRUSTS, COLLATERAL COSTS: INCARCERATION’S EFFECT ON ECONOMIC MOBILITY 3 (2010), available at http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/CollateralCosts1pdf.pdf http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Economic_Mobility/Collateral%20Costs%20FINAL.pdf.
  8.   CENTER FOR EMPLOYMENT OPPORTUNITIES, ISSUE OVERVIEW: CRIME AND WORK 1, available at http://www.ceoworks.org/Roundcrime_work012802.pdf.
  9.   PEW, supra, at 11.
  10.   Devah Pager, The Mark of a Criminal Record 108 Am. J. Soc. 937, 960 (2003), available at http://www.princeton.edu/ ~pager/pager_ajs.pdf.
  11.   DEVAH PAGER ET AL., RACE AT WORK: A FIELD EXPERIMENT OF DISCRIMINATION IN LOW-WAGE LABOR MARKETS 21 (Princeton U. 2008), available at http://faculty.chicagogsb.edu/workshops/orgs-markets/pdf/ pager.race.pdf.
  12.   Chris Uggen, Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism 67 AM. SOC. REV. 529, 529 (2000); DEIRDRE HEALY, THE DYNAMICS OF DESISTANCE: CHARTING PATHWAYS THROUGH CHANGE 177 (2010).
  13.   SOC’Y OF HUMAN RESOURCES MGMT., BACKGROUND CHECKING–THE USE OF BACKGROUND CHECKS IN HIRING DECISIONS (2012), available at https://www.shrm.org/Research/SurveyFindings/Articles/Pages/ CriminalBackgroundCheck.aspx.
  14.   N.Y. CORRECT. L. § 753; see Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 612, 523 N.E.2d 806, 809-10 (1988).
  15.   N.Y. EXEC. LAW § 296(15) (excluding evidence about employee’s criminal record). Negligence claims against employers have also failed on strong facts. See, e.g., Givens v. N.Y. City Hous. Auth., 671 N.Y.S.2d 479, 479 (App. Div. 1st Dep’t 1998) (three nonviolent convictions and one robbery conviction insufficient to establish propensity of violence in a public housing caretaker); Ford v. Gildin, 200 A.D.2d 224, 227 (App. Div. 1st Dep’t 1994) (unforeseeable that person with manslaughter conviction, employed as a porter in a residential building, would molest a child 27 years later).
  16.   New York State Department of Labor, Work for Success “Success Stories,” available at http://www.labor.ny.gov/ careerservices/work-for-success/stories.shtm.
  17.   Inside the Wacky World of Weird Data: What’s Getting Crunched, http://www.cnbc.com/id/101410448 (last visited Feb. 23, 2014).
  18.   Janet Moore, Target to ban criminal history box on job applications, STAR TRIBUNE, Oct. 26, 2013, available at http://www.startribune.com/business/229310141.html.
  19.   See NAT’L EMPLOYMENT LAW PROJECT, BAN THE BOX RESOURCE GUIDE (2014), available at www.nelp.org/page/-/SCLP/CityandCountyHiringInitiatives.pdf; and NAT’L EMPLOYMENT LAW PROJECT, STATEWIDE BAN THE BOX: REDUCING UNFAIR BARRIERS TO EMPLOYMENT FOR PEOPLE WITH CRIMINAL RECORDS (2014), available at http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf
  20.   Efforts to ‘ban the box’ continue, http://jailstojobs.org/wordpress/efforts-to-ban-the-box-continue/ (last visited Feb. 23, 2014).

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