Barriers to Employment and Re-entry

Safer Policy Institute Partner Corner
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Protecting the Backbone of the U.S. Economy: A Survey of U.S. State Law to Protect Fair Chance Employers
Rebecca Graham, Esq., Asawari Sodhi, Safer Foundation, May 2018
With the use of criminal records under increased scrutiny employers feel pressure to manage the legal risk of discriminatory hiring and negligent hiring practices. Several states have taken steps to protect employers from such claims. This paper provides a brief overview of statutory law in various states protecting employers from negligent hiring claims based on an employee's arrest or conviction history. 

Legal Financial Obligations and Re-Entry in Illinois

Safer Foundation, October 2017

This paper examines Legal Financial Obligations levied in criminal and quasi-criminal cases in Illinois. It highlights the practice’s implications for re-entry and, looking to solutions, discusses legislative initiatives from the spring session of the 100th Illinois General Assembly.

Licensed to Work
Safer Foundation, October 2017
This policy brief examines the use of probation and reprimand against new professional licensees who have prior arrests or convictions.

Packingham v. North Carolina
Supreme Court of the United States, June 19, 2017

SCOTUS invalidated a 2008 North Carolina law which made it a felony for individuals required to register on a sex offender registry to access a commercial social networking website used by minors as well. In Packingham v. North Carolina, the court held that the law was too broad and impinged on lawful speech in violation of the First Amendment.

Legal Mandates in Criminal Background Checks: An Evaluation of Disparate Impact in New York State
Garima Siwach, Shawn D. Bushway and Megan Kurlychek, June 14, 2017.
Modified Abstract: This paper presents a stylized model of “disparate impact”, showing that background check decisions could create unequal opportunities for minorities since minorities are more likely to have certain types of criminal records. The authors evaluate a state mandated criminal background check for employment, implemented by the New York State Department of Health (DOH). The DOH process follows a statute that determines certain crimes as automatically disqualifying from and certain others as automatically approving of employment. The authors show that adding these legal mandates to a statistically optimal approach which considers all factors of a conviction record, does not add any predictive power to decision-making but inadvertently leads to a disparate impact on minorities. The paper concludes that over-reliance on such mandates generates inefficient and inequitable outcomes.

Recognizing Redemption: Old Criminal Records and Employment Outcomes
Peter Leasure and Tia Stevens Andersen. N.Y.U. Review of Law and Social Change, The Harbinger, Vol. 41, 271-286. March 21, 2017

This study examines how the age of a criminal record affects employment outcomes. Results indicate that those possessing older criminal records still face barriers when seeking employment. Based on the findings, the authors present policy considerations.

Ban the Box, Conviction, and Public Sector Employment
Terry-Ann Craigie (Connecticut College), January 27, 2017

Excerpt: The study employs quasi-experimental methods to identify the impact of public sector BTB (Ban-the-Box) policies on public sector employment. In general, the study finds that public sector BTB policies increase the odds of public sector employment for those with convictions by close to 40%; the study uncovers no evidence of statistical (racial) discrimination against young low-skilled minority males.

Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs
Rule change by Centers for Medicare and Medicaid Services, Administration for Children and Families, published in Federal Register Vol. 81, No. 244, December 20, 2016

Some of the rules pertain to the status of child support orders during incarceration. These rules added language to permit states to initiate review of a child support order and adjust it if appropriate upon learning that a noncustodial parent will be incarcerated for more than 180 calendar days. They also provide that incarceration may not be treated as "voluntary unemployment" in establishing or modifying support orders. Here is an overview of the rule provided by the Administration for Children & Family Services, US Department of Health and Human Services. 

Helping Moms, Dads & Kids to Come Home: Eliminating Barriers to Housing for People with Criminal Records
Legal Action Center, National HIRE Network, December 2016
This report assesses some of the most common and pernicious obstacles to housing that confront Americans with criminal records and their families. It also examines innovative federal, state, and municipal initiatives that are helping people to overcome those obstacles. 

An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms

Peter Leasure, Tia Stevens Anderson, Yale Law and Policy Review Inter Alia, Vol. 35, No. 11, 2016. November 7, 2016 
Excerpt: The current study, which examines Ohio's program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer.
Ban the Box in Employment: A Grassroots History
Linda Evans, All of Us or None, A Project of Legal Services for Prisoners with Children, 2016
A grassroots group of formerly incarcerated people, All of Us or None spearheaded Ban-the-Box, the civil rights campaign to remove barriers to employment, housing, education and voting resulting from contact with the criminal justice system. Linda Evans, a founding member of All of Us or None, describes the movement’s history and progress.

99th Illinois General Assembly Spring Session
Safer Foundation, September 6 2016
Here is a summary of legislation concerning the use of criminal records in employment and licensing that was enacted during the Spring session of the 99th Illinois General Assembly.

A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian Murray, 10 Harvard Law and Policy Review 361, Temple University Legal Studies Research Paper No. 2016-39. August 16, 2016
Excerpt: This article proceeds to evaluate a few legislative efforts at the state level that are geared towards increasing relief, discussing the text of the laws in depth and comparing them with previously existing remedies. The articles also evaluates recent federal legislative efforts and efforts in the federal courts to allow for expungement at the federal level. The piece concludes by situating these recent reforms within a broader discussion about how to alleviate the effects and collateral consequences of criminal records. 
Racial Profiling in Hiring:  A Critique of New “Ban the Box” Studies
Maurice Emsellem, Beth Avery, National Employment Law Project, August 11, 2016
This is a critical analysis of two studies that evaluated the impact of ban-the-box policies and concluded that they have a detrimental impact on young African-American men. The authors of the critique challenge this conclusion and argue in favor of a renewed commitment to enforcing rather than repealing ban-the-box policies.

Research Supports Fair-Chance Policies 
Anastasia Christman and Michelle Rodriguez, August 1, 2016
Excerpt: This fact sheet provides information on studies that offer research and data that support the proposition that removing unjust barriers to employment is good for individuals, families, and communities, increases public safety, and contributes to a robust economy.
FACT SHEET: New Steps to Reduce Unnecessary Occupation Licenses that are Limiting Worker Mobility and Reducing Wages
Office of the Press Secretary, White House, June 17, 2016
The fact sheet provides an overview of federal and state measures to remove employment barriers including background checks. This includes $7.5 million in federal funding for organizations to work with states in enhancing license portability, and undoing burdensome restrictions.

Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment
Amanda Y. Agan, Sonja B. Starr, U of Michigan Law & Econ Research Paper No. 16-012,  June 14, 2016
The paper shares findings of a field experiment in New York and New Jersey that tested for statistical discrimination in hiring as a result of banning the box.
The Price We Pay: Economic Costs of Barriers to Employment for Former Prisoners and People Convicted of Felonies
Cherrie Bucknor and Alan Barber, Center for Economic and Policy Research, June 2016
Updating a prior study by the Center for Economic and Policy Research, this paper looks at the economic costs of employment barriers associated with imprisonment and having a felony conviction record. The study estimates that in 2014, the resulting decrease in overall employment rates suggests a loss to the economy of $78 to $87 billion in annual GDP.

Recruitment, Selection, and Placement (General) and Suitability
U.S. Office of Personnel Management, May 2, 2016
The U.S.Office of Personnel Management (OPM)  issued new rules prohibiting federal agencies from using the criminal history box on job applications. The proposed rules issued by the federal Office of Personnel Management (OPM) limit criminal history inquiries on the Optional Form-306 that federal agencies administer to job applicants. The rules however do make an exception for agencies that demonstrate a requirement to advance inquiries.
HB 5973 Passes Illinois House; Remove Barriers to Licensing in 3 Occupations
Press Release, Safer Foundation, April 21, 2016
Public Act 99-0876 removes barriers to employment in occupations and businesses covered by three practice acts—Barbering/Cosmetology, Roofing and Funeral Service—for people with criminal records. Proposed jointly by Safer Foundation and the Illinois Policy Institute, the law prohibits the Department of Financial and Professional Regulation from denying a license to an applicant for convictions that are unrelated to the profession for which a license is sought. It also limits discretion in license denials by having the Department consider a number of factors including rehabilitation before refusing to issue a license to an applicant with a license-related conviction.

Burdened for Life: The Myth of Juvenile Record Confidentiality and Expungement in Illinois
Illinois Juvenile Justice Commission, April 2016
The report provides a comprehensive analysis of the limitations in Illinois' confidentiality protections of juvenile records. It estimates the extent to which juvenile record expungements are granted in Illinois and includes the Illinois Juvenile Justice Commission's recommendations to enhance confidentiality protections of juvenile records and to increase access to juvenile record expungement.
Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People With Records
Michelle Natividad Rodriguez and Beth Avery, National Employment Law Project, April 2016
This paper examines states' occupational licensing criminal background check requirements. It compares and grades states across four criteria - blanket rejection of applicants with conviction histories, incorporation of “EEOC factors”, limitations on the scope of inquiry, and consideration of rehabilitation. Relevant recommendations are made.
People with Records and the Formerly Incarcerated in the Chicago Area
Safer Foundation, 2016
This fact sheet provides a snapshot of Chicago’s high economic hardship and high-return communities.
How Many Americans Have a Police Record? Probably More Than You Think
Jo Craven McGinty, The Wall Street Journal, August 7, 2015
How the numbers came about and why they might still under-count the number of people affected by the criminal justice system.

A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits
The Sentencing Project, 2013, Updated 2015
The Personal Responsibility  and Work and Opportunity Act (PRWORA) of 1996 made significant changes to cash assistance and food stamps programs including denial of federal benefits to people convicted in state or federal courts of felony drug offenses. States were given discretion to opt-out of or modify the ban. This paper reviews which states adopted, modified or opted out of the ban and estimates its effect on several fronts.
Federal Policy Recommendations to Increase Job Opportunities for Justice-Involved Workers
The National Employment and Reentry Committee, May 2014
This policy brief was submitted to the White House Domestic Policy Council. It makes several recommendations including restoring Pell Grants for the incarcerated, implementing fair higher education admissions standards and removing unnecessary regulatory barriers in growing industries.

Wanted: Accurate FBI Background Checks For Employment. Reward: Good Jobs
Maurice Emsellem and Madeline Neighly, National Employment Law Project, July 2013
Inaccurate and incomplete background checks can interfere with a job seeker's ability to find work. This report finds that although frequently used, FBI background checks are not always complete. Half of FBI's records fail to include information on the final disposition of a case. The authors make policy recommendations to reform the system and hold the FBI accountable for the records that bear its seal.
In Search of Redemption: Expungement of Federal Criminal Records
Raj Mukherji, Law School Student Scholarship, Paper 163, 2013
Excerpt: This paper analyzes collateral consequences of having a criminal record, the disparity of expungement remedies available in federal courts, expungement powers pursuant to federal statutes and expungement remedies made available by states for state criminal records. It compares two relevant congressional proposals to enact federal expungement and argues for a bill that would combine the best elements of the proposals with effective state models.



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