By Chris Finnie – former Contributing Author to Crime, Justice and America magazine. Originally published in 2002 and reposted with permission from Crime, Justice and America magazine
In a June 2001 report by the U.S. Department of Labor called “From Hard Time to Full Time”, they cite figures from the Department of Justice on the number of people under criminal justice supervision. For 1999, 1.85 million were incarcerated in state and federal prisons and local jails, 3.8 million on probation, and 700,000 on parole. More than 500,000 offenders were released from state and federal prisons and returned to communities. The Christian Science Monitor quotes a figure from the Urban League saying, “…a record 630,00 inmates, an average of 1,600 a day, will walk out of U.S. prisons and back into society.”
In addition, the Labor Department notes that, “The number of people who have a record of arrest or conviction is much larger, though. Over 47 million Americans — and probably many more have a criminal history on file with state or federal governments. That means that about 25 percent of the nation’s adult population live a substantial portion of their lives having a criminal record.”
While the figures vary slightly, both agree that the journey to social reentry hinges on finding and keeping a job. In some cases, it is even a condition of parole or probation. Both also agree that ex-cons face significant barriers. However, while daunting, they are not insurmountable.
The Problems
The Labor Department report states “People with criminal records face a number of barriers to becoming employed. These include welfare laws that restrict ex-offenders with drug convictions from getting TANF assistance and feed stamps, and employment laws that allow, and even mandate, employers to consider a person’s criminal record.”
Dwayne Eckhoff left prison in South Dakota after serving 10 years for burglary. He says “Most of the time … people find out you’ve been in prison and they put your application on the bottom of the pile. There were times I thought it’d be easier just to go back in.”
Sharon Lattiker was convicted of check fraud in the city office where she worked. After finishing her term, she received a pardon from the governor of Illinois, became a born-again Christian, earned two master’s degrees, and is finishing a Ph.D. But she still has trouble landing the job she wants as a public-school principal. She asks, “If a person has served their time and paid your debt to society, how long does one pay for a mistake?”
John Sweeney, who spent 17 years in prison for robbery and kidnapping now runs Hope Ministries and helps ex-cons rebuild their lives. He sees this all the time. “People expect these guys to go out and get jobs right away. But first they need the basics. For most of these guys, being out here is a completely different reality. In a way, they’re like children.” Private-sector employment managers interviewed by Crime, Justice & America confirm the problem. Steve Guerzon, Director of Staffing for a diversified regional temporary staffing company says, “We’re more sensitive to potential problems because the people we send out are not working on-site under our control. We want to make sure the people we’re sending out are really good. There’s also a liability issue.”
Ken Realmuto, who has worked as a recruiter and staffing manager for 20 years says, “If an individual has a problem beating his wife and will be working around female employees, the risk is too high. People with theft or grand larceny convictions I’d be less likely to hire.“
Your Record Counts
There are a number of laws that govern the employment of people with criminal records. Some of these laws protect ex-offenders from discrimination based on their conviction record, and others restrict employers from hiring people with certain types of convictions. While employers are generally not allowed to have blanket bars against hiring people with criminal records, they are permitted to consider the relationship between the conviction record and the job they’re applying for.
Employers are allowed to consider an applicant’s conviction record and, in some cases, the arrest record as well. The types of jobs that with legal prohibitions against ex-offenders tend to be in the fields of childcare, education, security, nursing, and home healthcare, where vulnerable populations are involved.
A report by The Urban Institute, a Washington-based think tank, says at least six states permanently bar ex-offenders from public employment, and most cut them off from education, legal, real estate, and medical professions. Unions often keep ex-cons from their ranks as well.
Todd Clear, a criminal justice professor at the John Jay College of Criminal Justice in New York says, “Many types of jobs are barred to ex-convicts, and, surprisingly, it’s not just professions. In Indiana, ex-cons can’t be barbers, and in some states they can’t be truck drivers.”
Both Guerzon and Realmuto say pre-employment background checks are common — usually going back from 5 to 7 years. Investigators commonly check both police and court records. The other place companies can find out about a criminal record is from credit reporting agencies. The practice may be even more common after 9/11.
Guerzon says they do take the type of crime into account. “Anything with violence is a red flag and we wouldn’t hire them. Theft is a big thing, or any kind of dishonesty. A lot of our customers actually have controlled substances on site, or business secrets. There’s a lot of business espionage going on. So we can’t place anybody who might be suspected of that type of activity. Theft would preclude you from working in a materials department or warehouse, or a purchasing, department.” He also admits that companies used to have lists of crimes that would disqualify applicants, but says he hasn’t seen one in years.
All Of It
But the Labor Department notes that, “… many employers are more willing to hire an applicant with a non-violent criminal background, rather than someone who has committed a violent crime.” They further observe that “most ex-offenders have convictions for drug-related or property crimes as opposed to violent ones, and a majority of people with criminal records do not have long conviction records. In fact, 71 percent of state prisoners were convicted of non-violent offenses. Fifty-six percent of male state prison inmates and 68 percent of women inmates had 2 or fewer prior convictions. Twenty-three percent of male and 35 percent of female inmates had never been previously convicted.”
Staffing managers agree that companies are more likely to hire applicants with a single conviction. Guerzon also says employers are willing to consider applicants with records, depending on the crime and the job. “A criminal record might not be a limiting factor. A misdemeanor or DUI will not usually be a problem unless driving is part of the job. We really do look at what the conviction is for.”
Realmuto sounds a hopeful note as well, saying, “I’ve never seen a blacklist of crimes. It’s always been on an individual, case-by-case basis. There are a lot of people who made mistakes and paid for it. They tried to get back into normal life and work situations. If they show honesty and that they’re really trying, they deserve the chance at a good job. They have to disclose their background though.”
Again, the Department of Labor confirms this saying, “Employers may consider an applicant’s conviction record and, in some cases, a person’s arrest record. Generally, employers are permitted to ask job applicants if they have ever been convicted of an offense, and employers may legally consider an applicant’s conviction(s) in making hiring decisions. If an applicant fails to disclose such information or misrepresents the information, and the employer discovers the deception, the individual can be legally fired.”
Ken Realmuto tells stories of several people he hired who told the truth about their criminal convictions. One man, he relates, was doubtful he’d get the job because of his DUI convictions. But he still brought it up during the interview. After a year in AA, he still had a restricted license. Because the candidate brought it up himself during the interview, and because of his AA membership, the team decided to hire him with a 120-day probation period instead of the usual 90-day one. Realmuto says, “That guy was never late, never missed a day, and was one of our most diligent workers. He was a model employee.”
In another case a woman put down on her application that she had a felony conviction. In the background check, they got more details and pulled the 5-year-old records. During the interview, she verified the details — which were identical to the court records. Despite the fact that she’d had trouble getting good jobs after her release, her pre-conviction experience was good, and the company was convinced she was being honest about herself. They hired her. Again, Realmuto says, “She was an exceptional employee and got 2 promotions in 14 months.”
However, even good qualifications can’t overcome a really bad record. Guerzon relates a story of a client that wanted to hire somebody and asked the agency to payroll them. The agency refused because he had a 17-page rap sheet and had just been released from jail. Guerzon says, “Even though the past doesn’t always indicate the future, the risk factor was just too high. If a person we place on assignment has a record we knew about, we could be liable as the employer for any damage. We could also be sued for criminal negligence. We do have insurance for that, but the rates would go up.” He also notes that many more employers require pre-employment drug testing, which can be a hurdle for many people to pass.
What Your Record Shows
Of course, police and court records are available to the public. But, surprisingly enough, many of these records are also available from consumer credit reporting agencies. However, under the Federal Fair Credit Reporting Act, consumer agencies are limited to providing criminal record information about the arrests and convictions for a job applicant over the last 7 years — unless the job has a salary of $75,00 or more. If the employer decides not to hire an applicant because of information found on the credit report, they must show the report the decision is based on to the applicant.
Several states have laws that limit how, and under what circumstances an employer can consider an applicant’s criminal record. These laws make it illegal for an employer to discriminate against an ex-offender unless his or her conviction is related to the duties of the job. Factors that are generally considered include the time elapsed since the offense, the person’s age at the time of the crime, the seriousness of the offense, the person’s efforts toward rehabilitation, and the employer’s interest in protecting the property and welfare of the workplace or the general public.
About a dozen states wipe out at least some felony convictions. Most only expunge first offenses. Some refuse to erase crimes such as murder, arson, and child molestation. Amid rising concern that a criminal record can unfairly penalize some people for life, more states are considering ways to wipe out a criminal record. In Rhode Island, legislators are debating whether to cut the waiting period between sentencing and expunging from 10 years to 5. The Oklahoma state Senate approved a bill that would allow ex-cons to erase records of drug-possession convictions. Other states offer certificates of rehabilitation to ex-offenders who either have minimal criminal histories or have remained out of the criminal justice system for specified periods of time. These can help get employment with public agencies and remove bars to obtaining licenses.
Both of the staffing managers we talked to said they had seen such certificates and would consider them in an applicant’s favor. Guerzon also says he’s seen letters from probation officers and a waiver that allowed the person to work anywhere but law enforcement and the federal government.
Can You Still Get Work?
People do get work after felony convictions. Some do it by dogged persistence like the Las Vegas chef featured in our “Stars” column elsewhere in this issue. Some do it by legal means such as expunging their records. Some find other help. There are some prison resources for job training and placement. It is possible.
In a recent survey organized by The Welfare to Work Partnership, two thirds of businesses indicated they were more likely to hire an ex-offender who was convicted more than 5 years ago and had avoided any further trouble with the law. The Department of Labor recommends you explain any mitigating circumstances connected to a particular offense. Tell prospective employers about any rehabilitation efforts, vocation training or education, community service, or successful alcohol or substance abuse treatment you’ve participated in.
However, it is often true that your first job out of jail will not be a great one. A worsening job market makes it harder. The more arrests and convictions you have, the harder it will be. The longer you’ve been inside, the less likely you are to have recent experience and references to help you out. These are the hard truths about finding work after you’ve served hard time.
Whatever you do to land your first, or subsequent jobs, everyone agrees it’s critical to tell the truth on your application. Ken Realmuto tells the story of an applicant who didn’t. “We interviewed a person who lied on their application. The person was very qualified for this technical job and passed all the interviews with flying colors. But the background check showed up 3 felony convictions over a 10-year period. The 3 convictions were for assault charges. They were long ago, but there were 3 of them, which showed he had extremely violent tendencies. Because he lied on the application, we didn’t hire him. The lying was really the deciding factor.”
Both of the staffing managers stress that information on applications and from interviews is privileged. It is not passed along throughout the organization. For this reason, they say it is safe for applicants to be open and explain what happened. They believe employers are then more willing to take a risk on the individual. However, they note that they are less likely to give people a chance if they don’t come across as straightforward.
How To Do It
For starters, it’s important to know the facts. As staffing managers told us, many employers have liability concerns. If an ex-offender later commits a new crime, employers fear they will be culpable of what’s called negligent hiring. However, in most cases this is not true. While state standards differ, the key to determining liability is usually whether the employer could have foreseen the crime. Specifically, employers must know the employee had a history or propensity for harmful behavior. Generally, an employer’s reasonable efforts to check and consider a prospective employee’s background will satisfy the legal requirements and eliminate the risk of liability. This points up why so many employers now do background checks, and why they deal so harshly with applicants who fail to disclose criminal backgrounds.
In addition there is a Federal Bonding Program that offers bonding insurance to employers who hire ex-offenders. Sponsored by the U.S. Department Labor, this provides individual fidelity bonds to employers for job applicants who are or may be denied coverage by commercial carriers because of their criminal history. While the bond does not cover liability due to poor workmanship, job injuries, or work accidents, it does protect the employer from theft, forgery, larceny,
or embezzlement.
As another incentive, Work Opportunity Tax Credits are available, to encourage private employers to hire targeted groups, including ex-felons. Employers who are willing to train and provide work experience to ex-offenders may also be eligible to receive wage subsidies.
In addition, Title VE of the Civil Rights Act of 1964, which is enforced by the federal Equal Employment Opportunity Commission, prohibits private employers and state and local governments from discriminating in employment decisions on the basis of race, color, gender, national origin, or religion. The EEOC has determined that policies that exclude individuals from employment on the basis of their arrest and conviction records may violate Title VII because such policies disproportionately exclude minorities, in light of statistics showing they are arrested and convicted at a rate significantly in excess of their representation in the population. Employers cannot use arrest records to exclude people from employment unless there is a business justification. According to the EEOC guidance, “The employer is required to allow the person a meaningful opportunity to explain the circumstances of the arrest(s) and to make a reasonable effort to determine whether the explanation is credible before eliminating him/her from employment opportunities.” However, the Department of Labor notes that challenging decisions under these guidelines can be “time-consuming,
expensive, and difficult.
Where To Turn
The Department of Labor makes several recommendations. First is to check the accuracy of your “rap sheet.” They note that it is bound to come out in background checks, but state that many criminal record reports contain inaccuracies and mistakes that “may give an unnecessarily negative profile of the individual.” You can get a copy of your record from the state repository of criminal records. Legal services offices and public defenders may help you seal or expunge information where possible. In certain situations, funding may be available from Welfare-to-Work, Workforce Investment Act, and TANF programs to cover the costs of expungement or sealing.
Before you’re released, you can increase your chances of getting a job by participating in job training or treatment programs offered in the facility. In federal prisons, The Federal Bureau of Prisons uses mock job fairs to introduce employers to the idea of hiring recently released inmates. The fairs also give inmates the opportunity to develop job-seeking skills, and let employers meet inmates who have marketable skills. Other agencies in the community, such as criminal justice agencies, have developed employer networks and strategies for working with ex-offenders. For example, the U.S. Department of Justice initiated several projects in communities across the country aimed at facilitating the re-integration of returning offenders.
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