Promoting Success: How to Help a Job Seeker with a Criminal RecordCenter for Community Alternatives

Program Goals:Big Picture Part I: understanding the backgrounding of America as a new phenomena Big Picture Part II: Implications of criminal backgroundingTypes of background checks and mistakes common to themRelevant federal and state lawBenefits of hiring a person with conviction historyRecommended best practices for helping a job seeker with a conviction history

Part One

The Backgroundingof America

Percentage of Employers Who Conduct Background ChecksThe prevalence of criminal background checks is a new phenomenonSociety of Human Resource Managers (SHRM) surveys on percentage of employers conducting criminal background checks:1996 51% of employers2010 92% of employers

The primary reasons employers give for conducting criminal background checks on job candidates?*SHRM Survey From Powerpoint available on SHRM websiteNote: n = 310. Percentages do not total to 100% as respondents were allowed multiple choices. Respondents were asked to select top two options.

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0.12

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0.39

0.55

0.61

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Other4%

To assess the overall trustworthiness of the job candidate12%

To comply with applicable State law requiring a background check (e.g., day care teachers, licensed medical practitioners, etc.) for a particular position20%

To reduce/prevent theft and embezzlement, other criminal activity39%

To reduce legal liability for negligent hiring55%

To ensure a safe work environment for employees61%

To resize chart data range, drag lower right corner of range.

Research and evidence vacuum No research or evidence to suggest that conducting criminal background checks:Makes the workplace more safe and reduces violence, theft, and dishonestyHelps to identify trustworthy and reliable job applicantsGuards against negligent hiring claims

Legal Protection from Negligent Hiring Claims2009 Amendment to Human Rights Law 296(15):[T]here shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee's past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.

Part Two

Work Force and Community Implications of Wide-Spread Backgrounding

Common Perceptions of People With a Criminal RecordCommon perception: a person with a criminal record is prone to violence and aggressive behaviorIs this perception accurate?Do most arrests involve violent and aggressive behavior?

Profile of Arrests in New York2010 total of 584,558 arrests73% misdemeanors27% felonies7% violent feloniesMost people arrested for a crime are arrested for a low-level, non-violent offenseThe prevalence of arrests for low-level, non-violent crimes is a feature of mass criminalization

Increase in Number of People with a Felony Conviction, 1948-2010Source: Shannon, Uggen, Thompson, Schnittker & Massoglia, 2011 GROWTH IN THE U.S. EX-FELON AND EX-PRISONER POPULATION, 1948 to 2010

Disparate Impact: All State and Federal Prisoners 2008African American 38%Hispanic20%White 34%Source: BJS

Race and Conviction Histories: Impact on Employment OutcomesDevah Pager and colleagues two surveys (NYC and Milwaukee) which both produced 2 primary findings:1) Having a criminal record has a significant impact on hiring outcomes, even for well-qualified and appealing candidates2) This negative effect is substantially larger for African-Americans

Impact on Employment Outcomes, cont.

As soon as they see my conviction, my work history, skills and experience go out the window.- Dory, who has over 10 years of work experience and a college degree, but because of a 2001 drug conviction still struggles to find employment

Part Four

Types of CriminalHistory Records

Types of Criminal History RecordsRap sheetsConsumer reporting agenciesCourt generated records

RAP SheetsRecord of Arrests and ProsecutionsRecords maintained by federal and state repositories 1) New York state repository- Division of Criminal Justice Services (DCJS) 2) federal repository - FBIThese records are fingerprint-based

DCJS and FBI Reports, cont.The DCJS and FBI Records are Confidential;Access is Permitted Only By Statute

Criminal justice agencies Specified government agencies responsible for occupational licensing (sealed information not disclosed)Individual can obtain his or her own record (because it includes sealed information, it is not to be re-disclosed)

Office of Court Administration (OCA):Court Generated State-Wide ReportThe New York State Office of Court Administration (OCA) provides a New York Statewide criminal history record search (CHRS) for a fee of $65.00. The search criteria is strictly based on exact match of Name and DOB (variations of Name or DOB are not reported.) The search results are public records relating to open/pending and convictions of criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties. Sealed records are not disclosed. Town & Village criminal disposition data is limited (see FAQ).

Commercial Background Check Companies A Booming BusinessMore than 600 commercial companies (consumer reporting agencies) in the U.S. that produce criminal background checksIt is now a multi-billion dollar industry

Mistakes: A Common OccurrenceWhy So Many Errors?Magnitude of U.S. criminal justice system Human frailties in the maze of our criminal justice system

Mistakes Common to ALL Types of Criminal History ReportsEven Official Records Contain Mistakes

Lack of dispositionMultiple charges for one arrest listed separatelyFailure to honor a sealing or expungement order Mistaken identity

CRA Reports: The Wild West of Employment ScreeningNCLC, April 2012 Report: Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and BusinessesMismatch the subject of the report w/ another personReveal sealed or expunged informationOmit disposition informationContain misleading informationMischaracterize the seriousness of the offense

Correcting Mistakes

Sometimes a job applicant can correct a mistake by obtaining information directly from the court:Certificate of dispositionSealing or expungement order

Can All Mistakes Be Corrected?

The story of Lisa P. reveals that just as a conviction can erect life-long barriers to employment, so too can a mistake on a criminal record.

Part FiveThe Relevant Law-or- What Every Service Provider Working with Job Seekers with Criminal Histories Ever Wanted to Know, But Was Afraid to Ask

The Various Laws Applicable to Hiring People with Criminal Histories

Federal Law: EEOCNew York State Law: Article 23-A and Human Rights LawFair Credit Reporting Act (FCRA)

EEOC: Civil Rights ImpactEmployment discrimination against individuals with arrest and conviction records is an issue that had long been with us, but which in recent years has re-emerged as an important civil rights issue.- Former EEOC Commissioner Naomi Earp, November 2008 EEOC meeting

EEOC Policy StatementEEOC Policy Statement on the Issue of Conviction Records Under the Civil Rights Act, Title VII (2/4/1987; updated 9/11/2006) An employers policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.

EEOC Policy Statement, cont.

Consequently, the Commission has held and continues to hold that such a policy and practice is unlawful under Title VII in the absence of a justifying business necessity.Business necessity turns on 3 factors:The nature and gravity of offense or offensesThe time that has passed since the conviction and/or completion of the sentenceThe nature of the job held or sought

New York Law: Public Safety and Basic FairnessProviding a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.- Former Governor Hugh Cary, signing legislation that makes it unlawful to discriminate against job applicants with a criminal record

Correction Law 752: The Basic Rule An employer cannot have a blanket policy against hiring anyone with a criminal record. It is unfair discrimination to deny a person with a criminal history a job or license because of his or her conviction unless: The conviction is directly related to the job in question, orHiring the person would create an unreasonable risk to property or the safety or general welfare of specific individuals or the general public

Correction Law 753: Factors Employers Must ConsiderThe States policy to encourage the employment of those with a criminal recordThe specific duties and responsibilities related to the employment soughtThe bearing, if any, the persons criminal offenses will have on his or her fitness or ability to perform the job dutiesHow long it has been since the person committed the crime of which he or she was convictedThe seriousness of the offense or offensesThe age of the person at the time of the crimeAny information the person provides on his or her behalf in regard to rehabilitation and good conductThe employers legitimate interest in protecting property and safeguarding the safety and welfare of others Whether the individual has a Certificate of Rehabilitation (CRD or a CGC)

Certificates of RehabilitationTwo types: Certificate of Relief from Disabilities (CRD)Certificate of Good Conduct (CGC)Establish a legal presumption of rehabilitationRemove presumptive barriers to employment

Correction Law 754: Applicants Right to a Reason Correction Law 754:At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within 30 days of a request, a written statement setting forth the reasons for such denial.

Human Rights Law 296: Unlawful Discriminatory PracticesSubdivision (15): Failure to comply with Article 23-A is an an unlawful discriminatory practice

Subdivision (16): It is an unlawful discriminatory practice for an employer to ask about or consider an arrest or conviction that has been sealed; further, job applicants are not required to disclose any arrest or conviction that has been sealed

What arrests and convictionsare sealed?An arrest that resulted in a disposition favorable to the accused, such as a dismissal, a decision not to prosecute, a grand jury no bill, a not guilty verdict, etc.An arrest that resulted in a conviction for a non-criminal offense (a violation)An arrest that resulted in a Youthful Offender adjudicationA conditionally sealed drug-related conviction

The caveat that should be included with the criminal history questionWithin the past 7 years, have you been convicted of a criminal offense (misdemeanor or felony)Answer No if your conviction:a) was sealed, expunged, reversed on appeal, or if your charge was dismissed;b) was for a violation, infraction, or other petty offense such as disorderly conduct;c) resulted in a youthful offender adjudication or juvenile delinquency finding; ord) if you withdrew your plea after completing a treatment program.

When an employer conducts a background check: Job Applicant Rights Under Fair Credit Reporting ActRight to advance notice with copy of Article 23-A and FCRA summary of rightsRight to give consentRight to copy of the background checkRight to opportunity to identify and correct mistakes Right to be notified in advance of adverse employment decision

Part Five

Benefits of Hiring People with a Criminal Record

Financial Benefit: Work Opportunity Tax CreditAn employer can claim up to $2400 tax credit for hiring an applicant with a felony conviction within one year of the date of his conviction or release from incarcerationSee U.S. Dept. of Labor, Work Opportunity Tax Creditwww.doleta.gov/business/incentives/opptax/

Financial Benefit: Federal Bonding ProgramDepartment of Labor offers a free fidelity bonding program for at risk job applicants, including people with criminal recordsThe fidelity bonds indemnify employers for loss of money or property caused by an employees dishonesty or stealing (theft, forgery, larceny, and embezzlement are covered)

Financial Benefit: Federal Bonding Program, cont.The first 6 months are free, after which the employee is deemed bondable for life through the Federal Bonding Programs commercial bond (Travelers)The bond insurance ranges from $5,000 to $25,000Information is at: www.bonds4jobs.comhighlights.htmlElaine Kost is NYs Bonding Services Coordinator: (518) 485-2151, elaine.kost@labor.state.ny.us.

Workforce BenefitsPamela Paulk, VP of Human Resources, Johns Hopkins Health Systems: Dont look at this as a social program and dont look at it as being altruistic. Look at this as a business decision.In a short video, Ms. Paulk describes how Johns Hopkins decision to affirmatively hire people with positive criminal histories has helped develop a workforce that:is more loyalharder workinghas better retention rates

The video is available at: http://www.pastforwardmd.org/index.cfm?page=profile_pamela.

Community Benefits:Enhanced Public SafetyStable employment helps ex-offenders stay out of the legal system. Focusing on that end is the right thing to do for these individuals, and it makes sense for local communities and our economy as a whole.- Hilda L. Solis, U.S. Secretary of Labor, 2010 press release

Community Benefits:Sustainable Economy Unemployment of individuals with criminal histories lowers overall employment rates 2 in 3 men were working/financial contributors before incarceration- David Lopez, General Counsel, EEOC Cannot sustain an economy in which almost of working age adults cannot obtain work- NELP, 65 Million Need Not Apply

Part Six

Best Practice Tips

Tip One: The Application Question Accurately disclosing conviction history information in response to a question on a job application Date of convictionName of conviction chargeLevel of offenseCourt of conviction

The wording of the question can be confusing or illegal, so assist your job seeker

Tip Two: The InterviewThe Opportunity to Build a Rapport

Some employers seemed uncertain about whether it was legally or socially appropriate to ask about prior convictions, and others seemed simply uncomfortable with the topic

Employment prospects improve significantly for applicants who have a chance to interact with the hiring manager

Personal contact can help provide some signals as to the disposition of the applicant and can help the employer develop a gut feeling about whether the individual is likely to diverge from the stereotype of ex-con- Devah Pager, Bruce Western, Naomi Sugie (2009)

The Interview: Strategies for Discussing Conviction History and RehabilitationWork with your job seeker to anticipate an employers concerns about hiring a job seeker with a conviction historyCannot be trustedThey will scare other employeesLazy Not dependable Shows poor judgment What skills could they possibly have?Not in it for the long haul Prone to violence

The Interview: Strategies for Discussing Conviction History and Rehabilitation, cont.Work with your job seeker on highlighting his or her strengths and the changes he or she has made since his or her conviction. Have they obtained a Certificate of Rehabilitation?Have they completed a treatment program?Have they completed and earned a degree? Or completed any job training programs?How long ago was the crime?Are they now a member of a community group or a religious organization? Do they have any letters of recommendation?

The Interview: Strategies for Discussing Conviction History and Rehabilitation, cont.

Two Step Process:Concisely, yet thoroughly, describe conviction history, and Discuss lessons learned and rehabilitation successesThere is a less effective way and a more effective way to have this conversation

A Less Effective WayYes, I was convicted of assault in 2005. I beat my cousin with a doorstop. But he was a drug dealer and he had stolen marijuana from my bedroom. I did three years Upstate but have had no fights or dirty urines in the last 6 months. My parole officer hasnt caused me any problems so far. As long as my cousin doesnt come near me there shouldnt be any problems.

A More Effective WayYes, I was convicted of assault in 2005 after a fight with my cousin. I was 22 years old. I spent three years in prison, during which I really took the time to think about my life and see where I was headed. I participated in Anger Replacement Programming. I am very careful to avoid my cousin because I know it is important to remove myself from volatile situations. I earned my GED as well as several Vocational Drafting certificates. I received an outstanding achievement award from my Drafting instructor, which motivated me to apply for this job at CNY Blueprint.

Example 2: a less effective wayI have a burglary conviction but I didnt go into the house. I was outside the whole time and I didnt know they were going to do that. I just thought we were all hanging out. We were caught and I was convicted because I was with them.

Example 2: a more effective wayI was convicted of Burglary four years ago. Although I did not actually enter the house, I was associating with negative people and I should have known better. This is my only conviction and it has been a wake-up call to me how easily a bad decision can have drastic consequences. Going forward, I am choosing carefully who I spend time with. For example, I am now enrolled in community college which is a positive place for me to be.

Group Exercise: Joseph Joseph is 23 He has applied for a job as a delivery truck driver He has a conviction from three years ago for second degree assault He grew up in a poor neighborhood, and was in a fight with a gang member who verbally threatened Joseph because he refused to join the gang He spent two years in state prison during which he obtained his GED and completed an anger replacement program. He liked the program so much he also volunteered as a peer counselor. Since his release, he has enrolled as a part-time student at a community college and is getting good grades. He has worked part-time at a fast food restaurant. He wants a full-time job with more responsibility.

Group Exercise: Joseph

How should Joseph prepare for the application and job interview?

What should Joseph say to the employer during the interview?

Group Exercise: JosephJosephs case, how might an employer consider the 8 factors listed in Correction Law 753See handout, Putting Correction Law 753 Factors into Practice

Eliciting Evidence of RehabilitationDiscover more about your job seekers rehabilitation through an open, non-judgmental conversationPossible questions:What lessons did you learn?How is your life different now?What did you change in your life?Has your attitude/thinking changed? How?How do you spend your time now?What are your goals?

Questions?.

Service providers who help people find work are discovering that an ever increasing number of job seekers have a history of past involvement with the criminal justice systemSimultaneously, an increasing number of employers are screening applicants for past criminal justice involvement.Add to this the fact that it is increasingly easy to get information about a persons past criminal justice involvementFor service providers it is now impossible to competently help a job seeker with a criminal history without understanding:Big picture issues, including issues related to why employers screen for criminal histories and features of our criminal justice system that have significant impact on screening decisions.The types of background checks available and frequently usedThe relevant law that is, what the law says about a job seekers rights and responsibilitiesThe benefits of hiring a person with a conviction history which you should know as a means of advocating for your job seekers to employers and as a means of helping your job seekers become better self-advocatesAnd specific strategies that you and your job seekers can work on together to enhance your jobs seekers chances of overcoming the stigma associated with a conviction history and obtaining positive employment outcomes. Lets start with the context.Researchers and criminal justice experts call todays prevalence background checks The Backgrounding of AmericaSuch backgrounding did not used to be so common and ubiquitous. Only 15 years ago, only about half employers conducted criminal background checks. I dont think we know exactly why backgrounding has increased so much, but two factors come to mind:9/11Increased number and use of data bases makes access to information much easierEnormous growth of private companies that conduct background checks for a profit and vigorously market their services This slide is from a presentation done by the Society of Human Resource Managers after their 2010 survey of employers on the issue of criminal background checks.It is possible to really distill this down to 3 main reasons: The belief that people with a criminal history are more dishonest and violent than their non-criminal historied counterparts, and therefore that hiring such people will include workplace fraud and violenceThe belief that criminal background check is an accurate way to gauge the presence or absence of positive employee attributes particularly trustworthiness and reliability.Concerns about negligent hiring claims.I want to briefly touch upon these 3. The backgrounding of America is occurring in a research and evidence vacuum:These issues were discussed at a recent conference sponsored by Cornell Universitys ILR School. This conference was for employers, private companies that sell criminal records, community-based organizations that try to help people with criminal histories find employment, and academics/researchers. - During the course of the conference, we learned that the growth of backgrounding has really occurred in a research vacuum.- This means that employers really do not know if screening out people with criminal records helps employers achieve their goals of finding good employees, creating a safe workplace, and preventing the loss associated with employee dishonesty. To the extent that employers are concerned about negligent hiring claims, there was statute enacted 3 years ago to provide employers some protections against such claims when they hire people with a criminal record. It is not a well known statute as people who assist job seekers, it is good for to know this protection and to be able to talk to potential employers about it. Thus, in 2009, Human Rights Law 296(15) was amended to include a provision that provides employers who comply with Correction Law 752 protections from negligent hiring claimsLater in this program, we will talk more about Correction Law 752But suffice is to say that the law offers important protections to employers who comply with NYS law in hiring people with a criminal recordIt is also an important signal from the State encouraging employers to hire people with conviction histories.We have discussed some of the concerns employers have that cause them to screen applicants for conviction histories.In this section, we look to at two significant features of todays criminal justice system and how these features will necessarily have implications for employers, the community as a whole, and service providers like you who are in the business of promoting employment. - It is important to first start with a common perception or misperception about people with a criminal record.Employers told us that when they hear the term ex-offender, or applicant with a criminal record, what immediately comes to mind is the thought thug that is a violent, dangerous individualAs people who work with job seekers with a conviction history, you might have a growing awareness of how untrue and problematic this perception is. But what does the data about our criminal justice system say? One way to answer these questions and get a true gauge of the profile of a typical arrest - is to look at the type of crimes for which people are arrested.As this slide reveals, most people who have a criminal history have been arrested for a low-level, non-violent offense.This NY data is mirrored at a federal level according to a 2007 FBI report, of the total arrests in 2006, only 5% were for violent crimes. (www.fbi.gov/ucr/cius/2007/data/table_29.htlm.) In addition, according to Bureau of Justice Statistics data, 2/3 of people released from prison were serving sentences for non-violent offenses- Thus, the belief that people with a criminal record are necessarily more prone to violence fails to recognize the reality of todays criminal justice system which swoops into its embrace more people for non-violent offenses than people for violent offenses

This data reveals reflects the first significant features of our criminal justice system that is, mass criminalizationFor the first 2/3rds of the 20th century, the defining feature of the US criminal justice system was just how steady rates of arrests and incarceration were.But this all changed in the mid-1970s when our tough on crime policies, including our war on drugs and other zero tolerance criminal justice policies led to a dramatic increase in arrests, conviction, and rates of incarcerationThis slide, from Christopher Uggen and his colleagues, illustrates the dramatic increase in the number of people who bear the stigma of having a felony conviction20 million people in the U.S. have a felony convictionThis is almost 9% of the adult population.But this is just a drop in the bucket of the total number of people who have any kind of criminal conviction whether it is a felony or misdemeanorIt is estimated that today, 92 million people in the US have a criminal convictions A recent study published in Pediatrics which reveals that nearly 1 in 3 people will be arrested by the time they are 23 years of age (this excludes arrests for minor traffic offenses). One of the authors of this study, Ron Christensen, has noted that: Arrest is a pretty common experience. The implications for you is obvious: a growing number of your job seekers will have had some past history of arrest, and will have to overcome the stigma of a conviction to get a job. The second defining feature of our criminal justice system is the disparate impact it has on people of color, particularly African American men.This slide, which reflects the racial composition of our nations incarcerated population, reflects this disparate impact. While African-Americans make up only about 13% of our population, they account for 28% of our prison population. Hispanics make up just 16% of our general population but account for 20% of the prison population.Data from the Sentencing Project reveals that these racial disparities cannot be explained by differing rates of crime amongst racial groupsFor example, African Americans account for only 14% of people who use drugs, but 34% of people arrested for drug use, and 53% of people imprisoned for a drug crime.The implications of this feature of our criminal justice system are also clear for employers by screening out job applicants because they have a criminal record, employers are unwittingly screening out more job applicants of color. In other words, a policy that is race neutral on its face will invariably have more of an impact on job applicants of color It almost certainly will also undermine efforts your organization is making to enhance diversity.

(If asked - Whites make up 72% of the general population)Devah Pager and colleagues have twice explored the impact that a criminal record and race has on employment outcomes once in Milwaukee and again in NYC. Their process send out to apply for entry level jobs matched testers - real people with attractive attributes and matched, well-qualified resumes. Some of the testers were people of color, some were not. At various points, these testers admitted to a felony conviction, at other times they did. In both studies, Pager and her colleagues found two important (though not surprising) phenomena:1. A criminal record has a significant impact on hiring outcomes, even for applicants with otherwise appealing characteristics. (A criminal record reduces the chances of a call-back or job offer by 50%)This means that employers are turning away well-qualified candidates merely because of their conviction histories.2. This negative effect is substantially larger for African Americans and Hispanics. (For African Americans the negative effect is almost double). This means that people of color are impacted by the practice conducting criminal background checks and that race has a particularly troubling role in hiring, despite legal protections to ensure that this does not happen.

CCAs Reentry Clinic our experience bears out Pagers research. All too often, skilled and motivated job applicants are turned away because of their conviction histories.In other words, to employers, a criminal conviction becomes a very salient feature of a job applicant - one that tends to outweigh positive attributes, including work experience, qualifications, education, good personality, and motivation It is important for you as a service provider to understand that this is happening and to develop strategies around two important areas: 1) how to deal with the stigma of a conviction in a manner that enhances your job seekers chances of getting a job; and 2) understanding and coping with the demoralizing affect this has on your job seekers with a conviction history. Now we move from the big picture context to more nuts-and-bolts issues.

- Every service provider who works with job seekers needs to know the types of criminal history records and background checks out there and the sources of information for these records.- Some records are generally confidential and only available to certain employers; others are the product of private companies and are generally available for a fee; finally, others are produced by courts.In Onondaga County, for years any employers relied on a report that the Sheriff called a criminal background check that really was not in fact, a criminal background checkBecause of a lawsuit, these so-called background checks are no longer available to employersSo you will see the employers you work with turning to the other sources of background checks that we will discuss here. - Rap sheets is a term commonly used to describe criminal history reports generated from a federal or state repository of criminal history information.- RAP stands for Record of Arrest and Prosecution In New York, DCJS is the state repository.The state repositories including DCJS - report to the national repository the FBI -These records are finger-print based meaning arrests in the records are based on fingerprints AND access to records generally occurs by fingerprint. But the fact that these records are fingerprint based does not mean they are free of errors.

Access to DCJS and FBI reports is limited to criminal justice agencies (law enforcement and courts), and certain state agencies, including those involved in occupational licensing. These state agencies must enter into and comply with a user agreement. These agencies do not get access to juvenile arrests, arrests that resulted in Youthful Offender adjudication or any other arrests that have been sealed.In addition to the above, DCJS and the FBI have a mechanism for individuals to obtain their own rap sheets from the designated state repository.It is important to note, however, that when a person obtains his or her own rap sheet, it may include information that, under the law, others are not entitled to access. Thus a person should never disclose his or her own rap sheet to any third party. If you are working with a job seeker who has his or her own DCHS or FBI rap sheet, it is critical that you remind this job seeker to NOT REDISCLOSE IT.Instead, you and the job seeker should review it and use it to develop a list of the persons Unsealed, CRIMINAL CONVCITIONS. The job seeker can re-disclose this list to employers when asked about conviction history. We have discussed RAP sheets or criminal history records from an official repository. Now lets turn to court-generated criminal records.For almost 9 years, New Yorks Office of Court Administration has produced for sale state-wide criminal background checks. This is from the New York Office of Court Administrations web-site, describing their state-wide criminal history reports. The reports cost $65, and can be generated by providing a persons name and date of birth.. The report includes information that is otherwise publicly available; it does not include information about arrests that have been sealed. Employers can enroll with OCA so they can pay for and get the record electronicallyI dont have a sense of how many employers in the Central New York use the OCA recordWe now turn to the third type of background check that is, reports done by private companies. The burgeoning use of criminal background checks since 9/11 has spawned a booming business.Today, private companies that sell background checks make profits of billions of dollars each year. For example, in 2008 alone, Choicepoint, one of the larger companies that provides background checks, was sold to another company of $4.1 billion. There are now over 600 companies that sell criminal background checks for a profit. The companies all vary in what they use as source information. Many companies use court records; some use other sources of information, such as registries, or prison websites that may have information about former inmates. - There is no typical private background check, and they all differ in the source used, the information presented, and the format used for presenting information. Some include information about the arrest charges and the conviction charge; some include information about just the conviction charge.- As we will discuss later, use of these commercial background checks is subject to compliance with the Fair Credit Reporting Act. Unfortunately, none of these types of criminal history records is perfect or even near perfect, and all are prone to include mistakes. Why? As we discussed earlier magnitude of our criminal justice system. As service providers who work with job seekers with conviction histories, it is important that you understand the high likelihood that any background check that is completed for your job seekers may have a mistake.- All types of criminal history records we discussed have a significant possibility of mistakes.This slide reflects the most common types of mistakes we see A recent detailed report by the National Consumer Law Center identifies the various types of mistakes that are common on consumer background checks. Part of the problem is that the industry is not well-regulated. The consumer reporting agencies are in business to make a profit, so it is not surprising that they tend to prioritize profits over accuracy. As a result, the industry often engages in these practices, which lead to mistakes. These practices were also identified by the Natl Consumer Law Center:Obtaining information through bulk record purchases, but then failing to routinely update these databases;Failing to verify the accuracy of information obtained through less reliable sources, including subcontractorsUtilizing unsophisticated matching criteriaFailing to utilize all available information to prevent a false positive matchLack of understanding of the state criminal justice system So how does a person prove the existence of a mistake on a background check and then try to correct it?The means by which to correct or prove mistakes varies depending upon the nature of the mistake.But many mistakes can be corrected or proved by obtaining the correct information directly from the court in which the arrest was prosecuted. In many cases, this means obtaining a certificate of disposition or sealing/expungement order directly from the court.But this process can be difficult. Service providers who are willing to help their job seekers with this process can often help their job seekers obtain a job they otherwise would have been denied because of a mistake. This discussion raises the question: Can All Mistakes Be Corrected or Prove?Sadly, because if the magnitude of the criminal justice system and the problem of human error, not all mistakes are correctable. This is especially true for arrests that occurred prior to the 1990s, when many courts began computerizing their records.The story of Lisa P., a true story, illustrates this point.Lisa P. was arrested for shoplifting in upstate New York in 1976, when she was 17 years old. She was charged with petit larceny, and misdemeanor. The case was dismissed, and under New York law, it should have been sealed.Lisa went on to become a NYS State Trooper and wife and mother. After 20 years with the State Police, Lisa retired and began a second career as a social worker.Lisa sought to work as a volunteer mentoring school children in a City school district, but to her surprise, her application was turned down.Why? Because the school obtained a background check that included the petit larceny arrest on it.Lisa went to the court to get the documents needed to show that the arrest had been dismissed and sealed, but the records had been lost or destroyed.Lisa has sought several avenues to correct this problem, but to no avail. It still appears as an open arrest on this particular record which is often used in the specific locality in which Lisa lives and works. Clearly this has implications for all entities conducting background checks: mistakes happen on background checks, and it is not always easy, or even possible, for the subject of the report to correct the mistake on the record, or prove that information on the record is mistaken. Service providers who work with job seekers with criminal histories should not only be aware of the stigma associated with having a criminal record, but also the relevant law. Why? Two important reasons:The law offers job seekers some protections. But there is not enough effort/resources for federal and state enforcement agencies to investigate and pursue employers who do not comply with the law. As a result, many employers are not complying with the law and it is up to job seekers, and those who work with them, to alert employers when the employer has engaged in an unlawful employment practice. In other words, enforcement needs to come from job seekers and the service providers assisting them.

2) Job seekers have responsibilities under the law. Often, their ability to avail themselves of the laws protections is contingent upon them having met their own legal responsibilities. -The Equal Employment Opportunity Commission has long recognized that preventing people with a criminal history from obtaining employment is a civil rights issue.Thus, civil rights is the driving force behind EEOCs policies about hiring people with a criminal record. EEOCs policy is based on the realization that our criminal justice system has an adverse impact on people of color. Thus, relying on a job applicants criminal record to make employment decisions is a practice that has a disparate impact on job applicants of color.EEOCs policy is simple and straight-forward: It is a violation of Title VII for an employer to maintain a blanket policy barring the employment of people with a criminal record.It is permissible under Title VII to deny such an individual a job only if there exists a business necessity.Business necessity turns on 3 factors. We are not going to dwell on these factors, however, because when we review NY law, you will see that compliance with NY law is full compliance with federal law and the EEOC guidelines.While EEOC focuses on the civil rights implications of refusing to hire people with criminal records, New York law focuses on the public safety and basic fairness implications.New York law recognizes how important employment is in promoting a persons desistance from crime. New York also recognizes that it is fundamentally unfair to perpetually punish someone who has committed a crime, but paid his debt to society. Barring such person from employment constitutes needless, lifelong punishment. Like the EEOC policy, NY law prohibits employers from having a hiring policy that outright bars the employment of people with a criminal hisNY law tells employers they must make an individualized assessment of the job applicant to determine if the conviction is directly related to the particular job sought or if hiring the person will create an unreasonable risk to property or people.. Note that these factors include the three factors that EEOC sets forth. -Thus, compliance with Correction Law 753 is compliance with the EEOC policy. Discuss each factor, but place special focus on:The two highlighted factors rehabilitation and Certificates of Rehabilitation.These are the only two things that the job applicant can change (cannot change age at time of offense, etc.)As discussed later in the presentation, service providers can be most effective in working with their job seekers on determining what to present as evidence of rehabilitation.

- An employer can still decline to hire a job candidate with a Certificate of Rehab, either because the candidate is not qualified, or because even with a Cert the factors in Correction Law 753 militate in favor or not hiring. However, a Cert. of Rehab is a strong factor in the applicants favor. As a service provider, you should determine if your job seeker has such a Certificate, and if so, you should encourage your job seeker to use it. But you need to remind the job seeker that having such a certificate is no guarantee of a job so you need to also strategize with your job seeker on how to make the most effective use of the certificate.Not enough job applicants avail themselves of this right, yet it can be very helpful in clarifying if an employer is failing to comply with Correction Law 752/753.As we discuss later, if an employer denies a job applicant a job after conducting a criminal background check the job applicant has the right to a copyIn the materials, we have provided you with a sample letter that job applicants can use to both request a copy of that record and ask for the reason for the job denial.Finally, Article 23-A was specifically incorporated into Human Rights Law 296, which sets forth various unlawful discriminatory practices in housing and employment. Subsection (16) of 296 specifically protects people with prior arrest histories from having to disclose certain information to employers. Service providers who work with job seekers should understand this so they can help job seekers to know what they must disclose and what they are not required to disclose. If an arrest or conviction falls within one of these categories and has been sealed, job seekers should not be asked to disclose the arrest or conviction. If employers were to fully honor Human Rights Law 296(16), they would be very careful in how they fashion the question, and would fashion a question designed to make it clear that they are not asking for information that is protects under Human Rights Law. But most employers are not careful, and as a result, they often ask a question that whether intentionally or unintentionally asks the applicant to disclose protected information. This creates a dilemma for the applicant.Later in the presentation, we will discuss some strategies to deal with this dilemma.

is explanation of the question conforms ton 296(16), and also the equivalent to sealing or Youthful Offender adjudications in other states. Employers that use a consumer reporting agency that is, a private background check company must comply with both the federal and state Fair Credit Reporting Act.The FCRA provides job applicants certain rightsIt has been our experience that MANY employers do not fully comply with FCRA.And very few job seekers know what their rights are under FCRAA service provider who knows of a job seekers FCRA rights often can play a critical role in preventing mistaken information on a background check from being the reasons the job seeker did not get a job. Job seekers should be urged to exercise their rights and to ask for a copy of the background check that was done whenever an employer does one.- Service providers can be most effective if they can talk knowledgably about the benefits of hiring job applicants with a criminal convictions.-- Your package of materials includes the DOL Fact Sheet and Brochure on this program. The forms are easily accessible at this website.The program is designed to encourage employers to hire people who were recently convicted of a felony or released from prison on a felony. -Thus, the credit is available when an employer hires a person who, within the past year, was either convicted of a felony or released from prison. (i.e., person who was convicted of a felony and who is hired within one year of the conviction or release from prison)Unlike the Work Opportunity Tax Credit, this program is not limited to only those with a felony conviction who were convicted or released from prison within the past year. Rather, this applies to any ex-offender anyone with an arrest or conviction record. The bonding program exists to help a person who is considered un-bondable obtain the bonding they need to get a job.

A person is eligible to be bonded under this program as soon as a job offer is made and a start date set.Either the employer or the employee can apply for the bonding under this program. Data from the U.S. Interagency Reentry Council:Statistics from labor force participation reveal that most people in prison were employed at the time they were arrested, and most have above-average work records.Once released and employed, they exhibit a normal degree of turnover compared with the working population as a whole. In fact, several case studies from companies that have made extensive use of formerly incarcerated people in their workforces reveal a lower-than-average turnover rate.Bottom-line Employers who are willing to hire people with criminal records have experienced success doing so. These next three slides are from one employer FedCap who makes a practice hiring such individuals. This quote reflects a trend that we are seeing more and more as community stakeholders, including federal an state government recognize the value of giving people 2nd chancesIt is critical to remember that most people with a criminal record have work experience and in fact, were working and supporting themselves and their families prior to their arrest.Does it make sense that their conviction should take them out of the job market forever?It certainly does not make sense to our communities in the long term, our economy simply cannot sustain an economy in which more than 25% of working age adults are not able to find living wage employment. Employer willingness to tap into this untapped workforce is critical to our economy and to the health and wellness of our communities.

- Many employers include a question about the applicants criminal records on the application. It many instances, if the applicant answers yes to the question about a criminal record, the application than requires the applicant to disclose that record. Usually, the application requires the applicant to disclose the information on this slide.Failure to disclose this information correctly if asked could lead to a job denial. And the law does not protect job seekers who disclose incorrectly even if the mistake was not intentional! An effective service provider will make sure the applicant can answer this question correctly and provide accurate information.But even when a job seeker is well-prepared to provide accurate information about his conviction history, the application process can be confusing because the wording on the application is often confusing or illegal.

Lets go through a few examples

This is a good example of a confusing and frankly illegal question.This application asks Have you ever been convicted of a law violation except for a minor traffic offense?On its face, this question asks the applicant to disclose non-criminal convictions that have been sealed as well as criminal convictions that have been conditionally sealed.Lets say your job seeker has a non-criminal conviction for a disorderly conduct that has been sealed. How should your job seeker answer this question?It is not clear whether Human Rights Law 296(16) fully answers this question. The statute says that a job applicant is not required to disclose such a conviction, but it does not explicitly say that a job applicant can legally lie. Two possible approaches:Answer no and do not disclose it. There is some case law that suggests that this approach is likely lawful under HR 296(16). But this is not 100% clear; nor is it evident that an employer knows of this case law. So it is possible that this approach could backfire if the employer finds out about the sealed conviction . The safest, though admittedly not necessarily as effective, approach answer as though the legal question were asked: I do not have a criminal conviction. This question is somewhat better though still problematic.

What if a job applicant has a felony conviction that has been conditionally sealed?(Again 2 possible approaches: 1) deny it; 2) answer as though legal question asked No I have no felony conviction that I am legally required to disclose)The explanation about misdemeanor conviction makes this question equally confusing. This explanation seems to suggest that certain non-criminal offenses, such as disorderly conduct, are misdemeanors. This is an illustration of why the job seeker needs to understand her record.It would certainly be appropriate for a job applicant to deny such a conviction given that the question asks only for disclosure of misdemeanors, but this means the job seeker needs to understand that her conviction is a non-criminal offense, and not a misdemeanor. This question is much better, but still could lead to two problems:If your job seeker has a conditionally sealed felony or misdemeanor (again 2 options); or If your job seeker has a Youthful Offender adjudication. The YO adjudication comes after a conviction for a felony or misdemeanor and vacates the conviction it means the person was not convicted of a crime. But some people do not understand this. (Example Reentry Clinic client who had been saying for 20 years that he had a felony conviction when he did not he had a YO adjudication).- This example illustrates the importance of making sure the job seeker knows and understands his or her criminal record. This is the best application question we have seen.It is an uncomfortable discussion for both the employer and the job applicants.Devah Pagers research that many employers are uncomfortable discussing criminal record and are not sure what to ask. Some employers deal with this understandable discomfort by avoiding the topic altogether, and therefore letting their assumptions and biases about the criminal justice system control their decision. This is not helpful.Discuss with your job seeker the possibility of them being the one to bring up the topic during the interview. It could be the elephant in the room. Particularly, if your job seeker indicated on the application that they would discuss their conviction history during the interview. Pagers research shows that interviews are most effective at addressing employers concerns about a job applicant with a criminal record Sit down and have this discussion with your job seeker. The job seeker who can put herself in the employers shoes in preparing for the interview is most likely to have the best employment outcomes.Effective service providers help the job seeker to do this.Very few employers will try to elicit evidence of rehabilitation from the job seeker. Yet, they will deny the job applicant a job saying no evidence of rehabilitation was presented!The job seeker must be prepared to present evidence of rehabilitation, even if the employer does not specifically ask for it. Some job seekers over look very important information about their rehabilitation. You can help your job seekers by listening carefully to them and helping them develop their response. This is how the reentry clinic works with our clients in developing their interview technique regarding their conviction history.

Discussing these two points in the most effective manner is not something that comes naturally to peopleThere needs to be time, effort, and thought put into thisYou can help your job seekers by encouraging and helping them to understand that this part of the interview is important and they need to prepare for it.,

What did not work well here? (Discussion) Denial of GuiltMinimization of Offending BehaviorThreat of Future ViolenceAdmitted Drug UseImplied InstabilityToo Much Detail

What works well here?(Discussion)What does not work well here? (Discussion) What works well here.Refer to handout for discussion.If there is time, discuss the example of Jane using the handout. To effectively help your job seeker, you need to learn of his or her rehabilitation.Everyone is different so a scripted conversation wont be effective.Best to have an open, non-judgmental conversation.These questions might help.