HomeMy WebLinkAbout08/24/2015 Council Work Session
August 24, 2015
Time indicated below
Harold E. Getty Council Chambers
Roll Call.
Approval of Agenda, as proposed or amended.
4:00 p.m. Discussion of Ban the Box
Submitted By:Abraham L. Funchess, Jr.
Approx. Discussion of Memorandum of Agreement regarding Council
4:45 p.m. oversight of Cultural and Scientific Facilities Levy on the ballot on
November 3, 2015.
Submitted By:Billie Bailey, Grout Museum District Executive Director
ADJOURNMENT
Suzy Schares, CMC
City Clerk/Human Resource Director
� 6 CITY OF WATERLOO , IOWA
° WATERLOO COMMISSION ON HUMAN RIGHTS
620 Mulberry Street • Waterloo, IA 50703 • (319)291-4441 Fax(319)291-4295
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Mayor
BUCK
CLARK August 24, 2015
COUNCIL
MEMBERS
Dear Mayor and City Council:
DAVID We are happy to report that since first coming to Waterloo City Council over three years
JONES ago about creating policy that would benefit our "returning citizens" in community, we
Ward I
now have access to a treasure trove of research data compiled by National Employment
CAROLYN Law Project (NELP) showing the benefits of such policy. We now return to Council
COLE
Ward requesting serious deliberation and consideration of a Ban the Box policy here for the
city of Waterloo in light of these developments.
PATRICK
MORRISSEY
Ward Enclosed you should find data inclusive of the following pieces relevant to our quest:
QUENTIN M. • A Fact Sheet about Ban the Box
HART
Ward • Model Administrative Memo for Cities and Counties
RON • Model Resolution for Cities and Counties
WELPER • Model Ordinance for Cities and Counties
Wards • Research Supports for Fair Chance Policies
TOM
LIND We thank you for your careful consideration of the material as you weigh the benefits of
At-Large such policy in our wonderful city of Waterloo.
STEVE
SCHMITT Res fectf ,
A/-Large
A ra am L. Funchess,Jr.
Ex:. tive Director
CITY WEBSITE:www.cityofwaterlooiowa.com
WE'RE WORKING FOR YOU!
An Equal Opportunity/Affirmative Action Employer
NATIONAL
ELP EMPLOYMENT
PROJECT FACT SHEET I JULY2015
"Ban the Box" is a Fair Chance For
Workers With Records
Removing questions about conviction history from job applications is a simple policy change
that eases hiring barriers and creates a fair chance to compete for jobs. Known as"ban the
box,"this change allows employers to judge applicants on their qualifications first,without the
stigma of a record. The most effective policies don't just remove the"box;"they ensure that
conviction information is used fairly. Employers should make individualized assessments
instead of blanket exclusions and consider the age of the offense and its relevance to the job
Candidates should be given an opportunity to review background-check results.
The Problem: Employers Are Not Hiring People With Records
There are an estimated 70 million U.S.adults with arrests or convictions that often make it
much harder to find work. The"box"on a job application is a barrier to jobs because it has a
chilling effect that discourages people from applying. It also artificially narrows the
applicant pool of qualified workers when employers toss out applications with the"box"
checked,regardless of the applicant's qualifications or relevancy of the conviction to the job.
Both the employer and job applicant lose out, Research affirms that a criminal record
reduces the likelihood of a job callback or offer by nearly 50%.
Removing Job Barriers Helps the Economy and is Good for Business
The reduced output of goods and services of people with felonies and prison records is
estimated at$57 to$65 billion in losses to the nation's economy. Allowing people to work
increases their tax contributions boosts sales tax,and saves money by keeping people out of
the criminal justice system. Major employers such as Target and Wal-Mart removed the
"box"because it made sense.
Employment Reduces Re-Offending
Employment has been found to be a significant factor in reducing re-offending. One study
found that a 1 percent drop in the unemployment rate causes between a Ito 2 percent
decline in some offenses.
The Solution: Adopt Fair-Chance Policies
A fair-chance policy has a real impact.Research indicates that once an employer has had the
chance to examine the qualifications of the applicant,the employer would be more willing to
hire the applicant.It's a tried and tested policy.In the United States, 18 states have embraced
fair hiring,with seven extending it to private employers. At last count,over 100 cities and
counties had adopted the policy.Now is the time for a fair-chance policy for all.
NELP I FAIR CHANCE FACT SHEET&FAQ I JULY 2015 1
Frequently Asked Questions
Q. What is"ban the box"?What is a fair-chance policy?
A. "Ban the box"was the rallying cry of All of Us or None organizers that refers to removing the
conviction history check-box from a job application. All of Us or None is a grassroots,civil
rights organization led by formerly incarcerated and convicted people.In addition to
delaying conviction history inquiries until later in the hiring process,fair-chance policies
include the following:
• Integrating the U.S.Equal Employment Opportunity Commission(EEOC)arrest and
conviction record guidelines,which require employers to take into account time
passed since the offense,whether the offense is related to the job position,and
evidence of rehabilitation;and
• Adopting strong standards of accuracy and transparency to maintain the integrity of
background checks when they are required and to protect workers against arbitrary
treatment in the hiring process.
Q. What doesn't a fair-chance policy do?
A. An employer is not required to hire an individual under a fair-chance policy. In other words,
the employer retains the discretion to hire the most qualified candidate. Some policies seek
to limit background check inquiries to only those positions deemed sensitive or to limit the
availability of certain criminal record information to only recent convictions. Other policies
have no limitations on background check screening except as to delay any inquiries until
later in the hiring process.See NELP's Best Practices and Model Policies,located in the NELP
Fair Chance Toolkit.
Q. Do fair-chance policies work?
A. Yes. Fair-chance policies have been so successful that some cities and states have expanded
their policies to include private employers. Because policies were adopted starting in the
early 2000s,several jurisdictions have had years of experience and success. The locations
that have collected data on the fair-chance policies show an increase in hiring people with
records. This is consistent with research that indicates that personal contact with an
applicant reduces the negative effect of a criminal record on the employment decision. See
NELP's Research Summary for more information,located in the NELP Fair Chance Toolkit.
Q. Who supports fair-chance policies?
A. Fair-chance policies are supported by policymakers across the political spectrum,law
enforcement,faith leaders,labor unions,civil rights and criminal justice reform groups,and
more. The U.S.Equal Employment Opportunity Commission also endorsed the policy. See
NELP's Voices in Support Factsheet,located in the NELP Fair Chance Toolkit.
Q. Who has adopted fair-chance policies?
A. Currently 18 states and over 100 cities and counties around the country have adopted fair-
chance policies. Six states and many local jurisdictions apply their policies to private
employers and/or government contractors. Target.Walmart,Home Depot,and Bed,Bath&
Beyond have removed the question about convictions from their initial job applications. See
NELP's Voices in Support Factsheet,located in the NELP Fair Chance Toolkit.
NELP I FAIR CHANCE FACT SHEET&FAQ I JULY 2015 2
4 Model Local and State Policies and Laws
A. Model Administrative Memo for Cities and Counties
A mayor,city manager,or human resources director ready to enact a fair chance policy
may be able to do so by developing an administrative memo or by executive order. This
could be the most viable option if a local council or board is unwilling to entertain a fair
chance policy. Legislation is a more permanent solution,but an administrative change
may provide the foundation for a new law. However,an administrative policy change may
be inappropriate if the goal of the campaign is to apply the fair chance policy to non-
government employers.
This model administrative memo provides a comprehensive approach. A more limited
approach could be taken by omitting sections below. Note that local-and state-specific
terms,such as criminal justice related terms,must be adjusted for local law. For examples,
see Oakland, California and Durham,North Carolina. A downloadable text version of the
model policy is available
Sec.1. Policy
The City will not conduct background checks on applicants unless it is required by law
or the City has made a good faith determination that the relevant position is of such
sensitivity that a background check is warranted. Applicants will be considered for
employment opportunities on the merits of their skills and experience related to the
position sought,and will not be denied employment solely or in part because of a prior
conviction,unless the City determines that the conviction is job-related. If the City has
determined that a background check is warranted for the position,the background
check will be conducted after the City has selected the best candidate for the position. If
a background check yields information that is of concern to the City,the applicant will be
provided an individualized assessment. The applicant will be given an opportunity to
review the background check findings and present information regarding inaccuracy,
mitigating circumstances,and rehabilitation.
Sec.2. Definitions
"Adverse action"means to refuse to hire,to not promote,to discharge a person,or to
revoke an applicant's conditional offer of employment.
"Applicant"means a person who has filed an application for examination to a City job
position.
"City"means the City,department,agency,or office thereof.
Sec.3. Existing Law
The City will comply with state and federal law requiring background checks for certain
positions and dictating certain disqualifying offenses and other existing law. An
employer's use of an individual's arrest and conviction record in making employment
decisions to automatically disqualify applicants may violate the prohibition against
employment discrimination under federal law,Title VII of the Civil Rights Act of 1964.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 20
The U.S.Equal Employment Opportunity Commission("EEOC") Guidance recommends
employers adopt the following best practices to avoid violating federal law. The
employer should only consider job-related convictions taking into account length of time
since the conviction. In addition,the guidelines recommend that the employer perform
an individualized assessment on the applicant,which would allow the applicant to
demonstrate that the conviction history is inaccurate or provide evidence of mitigating
circumstances or of rehabilitation.
The federal Fair Credit Reporting Act,15 U.S.Code Sec.1681,et seq.,governs the use of
commercially-prepared background reports. The subject of the background report must
authorize the report. These reports should not include information on arrests older
than seven years and the applicant should be provided a copy of the report prior to any
adverse action.
Sec.4. Considering Conviction History in Employment Decisions
1. Identifying position as requiring background check. Human Resources
analyst performs initial review of position to determine if the position is of such
sensitivity that a background check is warranted or if a background check is
required by law.
2. Posting job announcements. All job announcements and position
descriptions shall contain the following statement if the position requires a
background check,unless otherwise required by law: "This position is subject to
a background check for any convictions directly related to its duties and
responsibilities. Only job-related convictions will be considered and will not
automatically disqualify the candidate."
3. Job applications. job applications shall not inquire into an applicant's
conviction history.
4. Examination process. A list of eligible applicants will be created based on
examination results and the list will be sent to the hiring department The
hiring department will conduct interview(s)and select an individual from the
list of eligible applicants.
5. Notice of rights. Once an individual has been selected,the hiring department
shall notify Human Resources(HR),and HR shall send the individual a
conditional offer letter,notice of rights under this policy,and a request for
authorization to conduct a background check,if so required.
6. Limitation to conviction history. HR shall not use or access the following
criminal records in relation to a background check: records of arrest not
followed by a valid conviction,sealed,dismissed,or expunged convictions,
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 21
misdemeanor convictions where no jail sentence can be imposed,and
infractions.
7. Conviction history inquiry. If required,HR shall consider job-related
convictions only. If a statute explicitly requires that certain convictions are
automatic bars to employment,then those convictions shall be considered as
well. Otherwise,no person shall be disqualified from employment,solely or in
part because of a prior conviction,unless it is a job-related conviction. In
determining if a conviction is job-related,HR shall consider:
(a) Whether the conviction is directly related to the duties and
responsibilities of that employment position;
(b) Whether the position offers the opportunity for the same or a similar
offense to occur;and
(c) Whether circumstances leading to the conduct for which the person
was convicted will recur in the position;and
(d) The length of time since the offense occurred.
8. Pre-adverse action notice. If an applicant's conviction history contains
information that maybe the basis for an adverse action,HR shall:
(a) Identify the conviction item(s)that are the basis for the potential
adverse action;
(b) Provide a copy of the conviction history report,if any;
(c) Provide examples of mitigation or rehabilitation evidence that the
applicant may voluntarily provide;and
(d) Provide the applicant with an individualized assessment as described
below.
9. Individualized assessment. A job-related conviction shall not be the basis for
an adverse action if the applicant can show evidence of mitigation or
rehabilitation and present fitness to perform the duties of the position sought.
The applicant shall have ten(10)business days,after issuance of the notice,to
respond with any information rebutting the basis for the adverse action,
including challenging the accuracy of the information and submitting mitigation
or rehabilitation evidence. HR shall hold the position open until it makes the
final employment decision based on an individualized assessment of the
information submitted by the applicant and the factors recommended by the
EEOC.
10. Evidence of mitigation or rehabilitation. Evidence of mitigation or
rehabilitation may be established by:
(a) Evidence showing that at least one year has elapsed since release from
any correctional institution without subsequent conviction of a crime;
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 22
and evidence showing compliance with terms and conditions of
probation or parole;or
(b) Any other evidence of mitigation or rehabilitation and present fitness
provided,including,but not limited to,letters of reference.
11. Final notice. If HR makes an adverse decision,the applicant shall be informed
of the final decision,the appeal process,and that the applicant may be eligible
for other City positions.
12. Appeal. Applicants may appeal the final decision to the Director of Human
Resources.
13. Confidentiality. Any information pertaining to an applicant's background
check obtained in conjunction with the hiring process shall remain confidential,
and shall not be used,distributed,or disseminated by the City or any of its
agencies,or its vendors,to any other entity,except as required by law.
14. Data Collection. The Human Resources Department shall maintain a record of
the number of positions requiring background checks and for those positions,
shall maintain a record of the number of applicants: (a)for a position;(b)who
were found eligible for a position;and(c)who were provided a conditional offer
for a position. In addition,the Department shall maintain a record of the
number of applicants with a record for a position: (a)who were provided a pre-
adverse action notice; (b)who provided evidence of mitigation or
rehabilitation; (c)who were provided a final adverse notice;and(d)who were
hired. The Department shall also regularly conduct a confidential,anonymous
survey of employees in positions,in which background checks are not
conducted,to determine the number of people with records hired.
15. Audit. The Human Resources Department shall conduct a quarterly audit and
submit a report to the City Council which will review the City's hiring practices
in an effort to ensure that people with records are not unreasonably denied
employment with the City.
NELP FAIR CHANCE-BAN THE BOX TOOLKIT 23
B. Model Resolution for Cities and Counties
A resolution,as a formal expression of the intention or position of the city or county,often
entails a simpler process than legislation. Although an ordinance has the benefit of
typically being more detailed and thus,potentially more effective,a resolution may be the
best course for a fair chance policy that applies only to public employment. In addition,a
resolution may be appropriate as an initial step ifyou need to build your campaign to push
for an ordinance that applies to private employers.
This model resolution provides a comprehensive and effective approach. A more limited
approach can be achieved by omitting sections. Note that local-and state-specific terms,
such as criminal justice related terms,must be adjusted for local law, For examples of
resolutions,see Minneapolis, Minnesota and Petersburg, Virginia. A downloadable text
version of the model policy is available.
Purpose
Ensuring that the hiring practices of the City do not unfairly deny people with arrest and
conviction records employment with the City and further encouraging rehabilitation of
people with records to strengthen communities.
WHEREAS,the ability of people with records to successfully reintegrate into their
communities contributes to reduced recidivism,strengthens families,and leads to safer
communities;and
WHEREAS,people with records suffer from pervasive discrimination in many areas of
life,including employment,housing,education,and eligibility for many forms of social
service benefits;and
WHEREAS,people of color are arrested,convicted,and incarcerated in numbers
disproportionate to their representation in the population as a whole;and
WHEREAS,many people with records in the City are likely to be unemployed or
underemployed;and
WHEREAS,people with records represent a workforce that have skills to contribute and
a desire to add value to their community;and
WHEREAS,the City seeks to assist the rehabilitation of people with records and ensure
healthier,safer communities;and
WHEREAS,studies indicate that stable employment is one of the best predictors of post-
conviction success;and
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 24
WHEREAS,states and cities across the country have adopted fair chance hiring policies
to remove unfair barriers to employment of people with records;and
WHEREAS,the U.S.Equal Employment Opportunity Commission,to maximize
compliance with federal anti-discrimination law,recommends delaying inquiry of a job
applicant's conviction history and considering the job-relatedness of the conviction
taking into account length of time since conviction,and providing an individualized
assessment affording the opportunity to correct any inaccuracies and to submit
evidence of mitigation or rehabilitation;and
WHEREAS,it is the public policy of the City to encourage the employment of people
previously convicted.
NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY,that the City
Human Resources Department shall enact a fair chance policy and prohibit inquiry into
conviction history information on all City employment applications unless required by
state or federal law;and be it
FURTHER RESOLVED,that the City shall make a good faith determination as to which
specific positions of employment are of such sensitivity that a background check is
warranted or are required by law;and shall conduct background checks for these
positions only;and be it
FURTHER RESOLVED,if it has been established that a position requires a background
check,the City shall not conduct the check until after the applicant has been provided a
conditional offer of employment;and be it
FURTHER RESOLVED,the City shall not use or access the following criminal records in
relation to a background check: records of arrest not followed by a valid conviction,
sealed,dismissed,or expunged convictions,misdemeanor convictions where no jail
sentence can be imposed,and infractions;and be it
FURTHER RESOLVED,that the City shall consider job-related convictions taking into
account the length of time since the offense occurred,such that no person shall be
disqualified from employment,solely or in part because of a prior conviction,unless it is
a job-related conviction;and be it
FURTHER RESOLVED,that if an applicant has been convicted of an offense that is
directly related to the position sought,the Human Resources Department shall notify the
applicant and conduct an individualized assessment that permits the applicant to submit
information regarding inaccuracy of the record and evidence of mitigation or
rehabilitation,as appropriate;and be it
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 25
FURTHER RESOLVED,the Human Resources Department shall conduct an audit and
submit a report to the City Council which will review the City's hiring practices in an
effort to ensure that people with records are not unreasonably denied employment with
the City;and be it
FURTHER RESOLVED,that the City urges private employers and government
contractors to adopt fair hiring practices that encourage the rehabilitation and
employment of people with records.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 26
C. Model Ordinance for Cities and Counties
Enacting local law is the best option for regulating private employers. Because it has the
force of law,an ordinance is more permanent and authoritative than a resolution. This
model ordinance provides a comprehensive approach including the government,vendors,
and an option for private employers. A more limited approach could be taken by omitting
sections. Note that local-and state-specific terms,such as criminal justice related terms,
must be adjusted for local law. For examples,see New Haven, Connecticut and SaLl
Francisco,California. A downloadable text version of the model policy is available.
[EXAMPLE OF PREAMBLE ARE PROVIDED IN"WHEREAS"SECTION OF MODEL
RESOLUTION]
Sec.1. Definitions
"Adverse action"means to refuse to hire,to not promote,to discharge a person,or to
revoke an applicant's conditional offer of employment
"Applicant"means any person considered for,or who requests to be considered for,
employment or any employee considered for,or who requests to be considered for,
another employment position,by the employer.
"Awarding authority"means any department,agency,or office of the City that
authorizes a vendor to provide requested goods and/or perform services.
"City"means the City,department,agency,or office thereof.
"Employer"means the City; [IF APPLYING TO PRIVATE EMPLOYERS,THEN INCLUDE:]
any person regularly employing five or more persons;any person acting as an agent of
an employer,directly or indirectly;or any person undertaking for compensation to
procure employees or opportunities for employment.
"Employment"means any occupation,vocation,job,or work for pay,including
temporary or seasonal work,contracted work,contingent work and work through the
services of a temporary or other employment agency;or any form of vocational or
educational training with or without pay.
"Vendor"means any vendor,contractor,or supplier of goods or services to the City.
Sec.2. Considering Conviction History in Employment Decisions
1. Identifying position as requiring background check. The employer shall not
conduct background checks on applicants unless the employer has made a good
faith determination that the relevant position is of such sensitivity that a
background check is warranted or if a background check is required by law.
2. Posting job announcements. All job announcements and position descriptions
shall contain the following information if the position requires a background check,
unless otherwise required by law: "This position is subject to a background check for
any convictions directly related to its duties and responsibilities. Only job-related
convictions will be considered and will not automatically disqualify the candidate."
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 27
3. Job applications. Job applications shall not inquire into an applicant's conviction
history.
4. Notice of rights. Prior to any conviction history check,the employer shall send the
applicant a conditional offer letter,notice of rights under this ordinance,and a
request for authorization to conduct a background check,if so required.
5. Limitation to conviction history. The employer shall not use or access the
following criminal records in relation to a background check: records of arrest not
followed by a valid conviction,sealed,dismissed,or expunged convictions,
misdemeanor convictions where no jail sentence can be imposed,and infractions.
6. Conviction history inquiry. The employer shall not inquire into or consider an
applicant's conviction history until after the applicant has received a conditional
offer. If the employer is considering the conviction history of the applicant,the
employer shall consider job-related convictions only. If a statute explicitly requires
that certain convictions are automatic bars to employment,then those convictions
shall be considered as well. Otherwise,no person shall be disqualified from
employment,solely or in part because of a prior conviction,unless it is a job-related
conviction. In determining if a conviction is job-related,the employer shall
consider:
(a) Whether the conviction is directly related to the duties and responsibilities
of that employment position;
(b) Whether the position offers the opportunity for the same or a similar
offense to occur;
(c) Whether circumstances leading to the conduct for which the person was
convicted will recur in the position;and
(d) The length of time since the offense occurred.
7. Pre-adverse action notice. If an applicant's conviction history contains
information that may be the basis for an adverse action,the employer shall:
(a) Identify the conviction item(s)that are the basis for the potential adverse
action;
(b) Provide a copy of the conviction history report,if any;
(c) Provide examples of mitigation or rehabilitation evidence that the applicant
may voluntarily provide;and
(d) Provide the applicant with an individualized assessment as described
below.
8. Individualized assessment. A job-related conviction shall not be the basis for an
adverse action if the applicant can show evidence of mitigation or rehabilitation and
present fitness to perform the duties of the position sought. The applicant shall
have ten(10)business days,after issuance of the notice,to respond with any
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 28
information rebutting the basis for the adverse action,including challenging the
accuracy of the information and submitting mitigation or rehabilitation evidence.
The employer shall hold the position open until it makes the final employment
decision based on an individualized assessment of the information submitted by the
applicant and the factors recommended by the U.S.Equal Employment Opportunity
Commission.
9. Evidence of mitigation or rehabilitation. Evidence of mitigation or rehabilitation
may be established by:
(a) Evidence showing that at least one year has elapsed since release from any
correctional institution without subsequent conviction of a crime;and
evidence showing compliance with terms and conditions of probation or
parole;or
(b) Any other evidence of mitigation or rehabilitation and present fitness
provided,including,but not limited to,letters of reference.
10. Final notice. If the employer makes an adverse decision,the applicant shall be
informed of the final decision and that he or she maybe eligible for other positions.
11. Appeal. If denied employment by the employer,applicants may appeal adverse
decisions to the Enforcement Agency.
12. Confidentiality. Any information pertaining to an applicant's background check
obtained in conjunction with the hiring process shall remain confidential,and shall
not be used,distributed,or disseminated by the employer or any of its agencies,or
its vendors,to any other entity,except as required by law.
Sec.3. Vendors [CONSIDER COMBINING WITH TARGETED HIRING]
1. The City shall do business only with vendors that have adopted and employ
conviction history policies,practices,and standards that are consistent with City
standards outlined in this chapter.
2. During the bid or contracting process,the Awarding Authority shall review all
vendors'conviction history policies for consistency with City standards. The
vendors'conviction history standards shall be part of the criteria to be evaluated by
the City when determining whether to award a City contract. Further,the City will
be able to evaluate a vendor's execution of the conviction history standards as a part
of the performance criteria of said City contract(s). The Awarding Authority shall
consider any vendor's deviation from these conviction history standards as grounds
for fines or rejection,rescission,revocation,or any other termination of the
contract,or debarment from all City contracts.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 29
Sec.4. Compliance
1. Enforcement Agency. The employer shall retain application forms,records of
employment,and other pertinent data and records required under this chapter,
including but not limited to,communication with the applicant,for a minimum of
three years,and shall allow the Enforcement Agency access to such records to
monitor compliance with this chapter. Any person who is aggrieved by an
employer's violation of these provisions may contact the Agency to report any
problems,concerns,or suggestions regarding the implementation,compliance,and
impact of these sections,and the Agency shall keep a record. In addition,the Agency
shall conduct periodic reviews to assess compliance with these sections. The
Agency shall investigate and review complaints. The Agency shall report quarterly
on complaints,investigations,and reviews.
2. Data Collection. The employer shall maintain a record of the number of positions
requiring background checks and for those positions,shall maintain a record of the
number of applicants and the number of applicants who were provided a
conditional offer. In addition,the employer shall maintain a record of the number of
applicants with a record for a position:(a)who were provided a pre-adverse action
notice; (b)who provided evidence of mitigation or rehabilitation;(c)who were
provided a final adverse notice;and(d)who were hired. The City shall also
regularly conduct a confidential,anonymous survey of employees in City positions,
in which background checks are not conducted,to determine the number of people
with records hired.
3. Audit. The Human Resources Department shall conduct an audit and submit a
report to the City Council which will review the City's hiring practices in an effort to
ensure that people with records are not unreasonably denied employment with the
City.
[IF APPLYING TO PRIVATE EMPLOYERS,THEN INCLUDE:]
4. Penalty.The Enforcement Agency may issue a fine of up to$1000 for a first
violation of this chapter and provide counseling to the private employer to ensure
future compliance. Subsequent violations are subject to fines of up to$2000 per
violation. In addition,an individual may bring a civil action in any court of
competent jurisdiction against the employer or other person violating this chapter,
and upon prevailing,shall be entitled to such legal or equitable relief as may be
appropriate to remedy the violation including,but not limited to damages,
injunctive relief,and reasonable attorney's fees and costs. Where an employer does
not maintain or retain adequate records documenting compliance or does not allow
the Enforcement Agency reasonable access to such records,it shall be presumed
that the employer did not comply,absent clear and convincing evidence otherwise.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 30
D. Model State Executive Order
In both California(2010)and Illinois(2013),the governors were committed to enacting a
fair chance policy at a time when passing a bill was not feasible. Although legislation is a
more permanent solution,it is also resource-intensive to initiate a statewide campaign.
With the governor's backing assured,an executive order may be an appropriate first step
in a legislative campaign. In fact,in both California and Illinois,the legislatures passed fair
chance legislation in 2013 and 2014,respectively. If the goal of the fair chance campaign
is to apply the policy to private employers,a bill may be the only vehicle.
This model executive order provides a comprehensive approach for state agencies. A more
limited approach could be taken by omitting sections. Note that state-specific terms,such
as criminal justice related terms,must be adjusted for state law. For an example of a state
administrative order,see Illinois. A downloadable text version of the model policy is
Available.
Sec.1. Scope
This Order shall apply to all positions in State agencies,boards,and commissions. This
Order also urges private employers and government contractors to adopt similar fair
hiring practices that encourage the rehabilitation and employment of people with
records.
Sec.2. State Employment Applications
The State Personnel Department shall modify the application for state employment to
remove any questions about the applicant's conviction history.
Sec.3. Authorization of Release of Background Check
To the extent a background check is conducted for the position being filled,each agency,
board,and commission shall use an Authorization for Release form that obtains an
applicant's consent to acquire information relating to the applicant's conviction history.
The form shall indicate that the State shall not base employment decisions on the
information contained in the background check of an applicant unless the law prohibits
hiring an individual with a certain conviction for the position sought or the applicant's
conviction is directly related to the duties and responsibilities of the position sought.
The form shall indicate that job-related convictions will not automatically disqualify the
candidate.
Sec.4. Considering Conviction History in Employment Decisions
1. Establish procedure. Each agency,board,and commission shall establish a
documented review process: (a)to determine whether the relevant position is of
such sensitivity that a background check is warranted or if a background check is
required by law;and(b)to evaluate an applicant's background check in accordance
with procedures below.
NELP I FAIR CHANCE-BAN THEBOXT00LKIT 31
2. Limitation to conviction history. The agency,board,or commission may not
inquire into or consider records of arrest not followed by a valid conviction,sealed,
dismissed,or expunged convictions,misdemeanor convictions where no jail
sentence can be imposed,and infractions.
3. Conviction history inquiry. The agency,board,or commission shall not inquire
into or consider an applicant's conviction history until after the applicant has
received a conditional offer. lithe agency,board,or commission is considering the
conviction history of the applicant,the agency,board,or commission shall consider
job-related convictions only. If a statute explicitly requires that certain convictions
are automatic bars to employment,then those convictions shall be considered as
well. Otherwise,no person shall be disqualified from employment,solely or in part
because of a prior conviction,unless it is a job-related conviction. In determining if
a conviction is job-related,the agency,board,or commission shall consider:
(a) Whether the conviction is directly related to the duties and responsibilities
of that employment position;
(b) Whether the position offers the opportunity for the same or a similar
offense to occur;
(c) Whether circumstances leading to the conduct for which the person was
convicted will recur in the position;and
(d) The length of time since the offense occurred.
4. Pre-adverse action notice. If an applicant's conviction history contains
information that may be the basis for an adverse action,the agency,board,or
commission shall:
(a) Identify the conviction item(s)that are the basis for the potential adverse
action;
(b) Provide a copy of the conviction history report,if any;
(c) Provide examples of mitigation or rehabilitation evidence that the applicant
may voluntarily provide;and
(d) Provide the applicant with an individualized assessment as described
below.
5. Individualized assessment, A job-related conviction shall not be the basis for an
adverse action if the applicant can show evidence of mitigation or rehabilitation and
present fitness to perform the duties of the position sought. The applicant shall
have ten(10)business days,after issuance of the notice,to respond with any
information rebutting the basis for the adverse action,including challenging the
accuracy of the information and submitting mitigation or rehabilitation evidence.
The agency,board,or commission shall hold the position open until it makes the
final employment decision based on an individualized assessment of the
information submitted by the applicant and the factors recommended by the U.S.
Equal Employment Opportunity Commission.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 32
6. Evidence of mitigation or rehabilitation. Evidence of mitigation or rehabilitation
may be established by:
(a) Evidence showing that at least one year has elapsed since release from any
correctional institution without subsequent conviction of a crime;and
evidence showing compliance with terms and conditions of probation or
parole;or
(b) Any other evidence of mitigation or rehabilitation and present fitness
provided,including,but not limited to,letters of reference.
7. Final notice. If the agency,board,or commission makes an adverse decision,the
applicant shall be informed of the final decision,the appeal process,and that the
applicant may be eligible for other State positions.
8. Appeal. Applicants may appeal the final decision to the Personnel Department.
9. Confidentiality. Any information pertaining to an applicant's background check
obtained in conjunction with the hiring process shall remain confidential,and shall
not be used,distributed,or disseminated by the State,except as required by law.
10. Data Collection. The State Personnel Department shall maintain a record of the
number of positions requiring background checks and for those positions,shall
maintain a record of the number of applicants and the number of applicants who
were provided a conditional offer. In addition,the Department shall maintain a
record of the number of applicants with a record for a position:(a)who were
provided a pre-adverse action notice; (b)who provided evidence of mitigation or
rehabilitation; (c)who were provided a final adverse notice;and(d)who were
hired. The Department shall also regularly conduct a confidential,anonymous
survey of employees in positions,in which background checks are not conducted,to
determine the number of people with records hired.
11. Audit. The State Personnel Department shall conduct an audit and submit a report
to the Governor's Office which will review the State's hiring practices in an effort to
ensure that people with records are not unreasonably denied employment with the
State.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 33
E. Model State Legislation
The first state,Hawaii,has had its fair chance statute in place since 1998. Each year an
increasing number of legislatures are introducing fair chance bills. The model legislation
below provides a comprehensive example applying to all public employment,including
state agencies,cities,counties,and state licensing,and contractors with an option for
private employers. A more limited approach could be taken by omitting sections. Note
that state-specific terms,such as criminal justice related terms,must be adjusted. For an
example of a comprehensive state law,see Minnesota. For an example of a more modest
state law,see California. A downloadable text version of the model legislation is available.
Sec. 1. Policy
The Legislature finds and declares that reducing barriers to employment for people with
arrest and conviction records,and decreasing unemployment in communities with
concentrated numbers of people with records,are matters of statewide concern. The
Legislature further finds and declares that increasing employment opportunities for
people with records will reduce recidivism and improve economic stability in our
communities.
Sec.2. Definitions
"Applicant"means any person considered for,or who requests to be considered for,
employment or any employee considered for,or who requests to be considered for,
another employment position,by the employer.
"Employer"means the State,its agencies,or political subdivisions; [IF ADDING
PRIVATE EMPLOYERS,THEN ADD:] and any person in this State employing four(4) or
more individuals; any person acting in the interest of an employer directly or indirectly;
or any person undertaking for compensation to procure employees or opportunities for
employment.
"Hiring authority"shall mean the person,board,commission,or department of the
State,its agencies or political subdivisions,responsible by law for the hiring of persons
for public employment
"Licensing authority"shall mean the person,board,commission,or department of the
State,its agencies or political subdivisions,responsible by law for the licensing of
persons for occupations.
"License"includes all licenses,permits,certificates,registrations,or other means
required to engage in an occupation which are granted or issued by the State,its agents,
or political subdivisions before a person can pursue,practice,or engage in any
occupation.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 34
"Occupation"includes all occupations,trades,vocations,professions,businesses,or
employment of any kind for which a license is required to be issued by the State,its
agencies,or political subdivisions.
Sec.3. Availability of Records
(a) The following criminal records shall not be used,distributed,or disseminated by the
State,its agents,or political subdivisions in connection with any application for
employment nor in connection with an application for a license:
(1) Arrest not followed by a valid conviction.
(2) Convictions which have been sealed,dismissed,or expunged.
(3) Misdemeanor convictions for which no jail sentence can be imposed or
infractions.
(b) Any information pertaining to an applicant's background check obtained in
conjunction with the hiring process shall remain confidential,and shall not be used,
distributed,or disseminated by the State,its agents,or political subdivisions,except
as required by law.
Sec.4. Considering Conviction History
(a) An employer or hiring authority shall not inquire into or consider an applicant's
conviction history until after the applicant has received a conditional offer.
(b) A licensing authority shall not inquire into or consider the conviction history of an
applicant for licensing until after an applicant is found to be otherwise qualified for
the license.
(c) Job applications and licensing applications shall not inquire into an applicant's
conviction history.
Sec.5. Relation of Conviction to Employment or Occupation
(a) No person shall be disqualified from employment,nor shall a person be disqualified
from pursuing,practicing,or engaging in any occupation for which a license is
required,solely or in part because of a prior conviction,unless it is a directly related
conviction to the position of employment sought or to the occupation for which the
license is sought. If a statute explicitly requires that certain convictions are
automatic bars to employment or licensing,then those convictions shall be
considered as well. Otherwise,no person shall be disqualified from employment or
licensing,solely or in part because of a prior conviction,unless it is a directly related
conviction to the position of employment sought or to the occupation for which the
license is sought.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 35
(b) In determining if a conviction directly relates to the position of employment sought
or the occupation for which the license is sought,the employer,hiring authority,or
licensing authority shall consider:
(1) Whether the conviction is directly related to the duties and responsibilities
of that employment position or occupation;
(2) Whether the position or occupation offers the opportunity for the same or a
similar offense to occur;
(3) Whether circumstances leading to the conduct for which the person was
convicted will recur in the position or occupation;and
(4) The length of time since the offense occurred;
Sec.6. Notification of Denial of Employment or Disqualification from Occupation
(a) If an employer,hiring authority,or licensing authority intends to deny an applicant
a position of employment or intends to disqualify an applicant from pursuing,
practicing,or engaging in any occupation for which a license is required,solely or in
part because of the applicant's prior conviction of a crime,the employer,hiring
authority,or licensing authority shall notify the applicant in writing of the following,
prior to a final decision:
(1) Identify the conviction item(s)that are the basis for the potential denial or
disqualification;
(2) Provide a copy of the conviction history report,if any;and
(3) Provide examples of mitigation or rehabilitation evidence that the applicant
may voluntarily provide.
(b) The applicant who has been convicted of an offense which directly relates to the
employment sought or to the occupation for which a license is sought shall not be
disqualified from the employment or occupation if the applicant can show evidence
of mitigation or rehabilitation and present fitness to perform the duties of the
employment sought or the occupation for which the license is sought.
(c) The applicant shall have ten(10)business days,after issuance of the notice,to
respond with any information,including challenging the accuracy of the information
and submitting mitigation or rehabilitation evidence. The employer or hiring
authority shall hold the position open until it makes the final employment decision
based on an individualized assessment of the information submitted by the
applicant and the factors recommended by the U.S.Equal Employment Opportunity
Commission.
(d) Evidence of mitigation or rehabilitation may be established by:
(1) Evidence showing that at least one year has elapsed since release from any
correctional institution without subsequent conviction of a crime;and
evidence showing compliance with terms and conditions of probation or
parole;or
NFLP I FAIR CHANCE-BAN THE BOX TOOLKIT 36
(2) Any other evidence of mitigation or rehabilitation and present fitness
provided,including,but not limited to,letters of reference.
(e) If an employer,hiring authority,or licensing authority denies an applicant a position
of employment or disqualifies the applicant from pursuing,practicing,or engaging
in any occupation for which a license is required,solely or in part because of the
applicant's prior conviction of a crime,the employer,hiring authority,or licensing
authority shall notify the applicant in writing of the following:
(1) The final denial or disqualification;
(2) The appeal process;
(3) The applicant may be eligible for other employment or occupation;and
(4) The earliest date the applicant may reapply for a position of employment or
a license.
Sec.7. Contractors
(a) It shall be the policy of the State to do business only with contractors that have
adopted and employ written policies,practices,and standards that are consistent
with the requirements of Sections 1-6.
(b) State agencies shall review all contractors'background check policies for
consistency with the policies of the State as expressed in Sections 1-6,and shall
consider background check policies and practices among the performance criteria in
evaluating a contract.
Sec.8. Compliance
(a) The employer shall retain application forms,records of employment,and other
pertinent data and records required under Sections 1-6,including but not limited to,
communication with the applicant,for a minimum of three years,and shall allow the
Enforcement Agency access to such records to monitor compliance with Sections 1-
6. Any person who is aggrieved by an employer's violation of these provisions may
contact the Agency to report any problems,concerns or suggestions regarding the
implementation,compliance and impact of these sections,and the Agency shall keep
a record. In addition,the Agency shall conduct periodic reviews to assess
compliance with these sections. The Agency shall investigate and review
complaints. The Agency shall report quarterly on complaints,investigations,and
reviews.
(b) The employer shall maintain a record of the number of positions requiring
background checks and for those positions,shall maintain a record of the number of
applicants and the number of applicants who were provided a conditional offer. In
addition,the employer shall maintain a record of the number of applicants with a
record for a position:(a)who were provided a pre-adverse action notice; (b)who
provided evidence of mitigation or rehabilitation;(c)who were provided a final
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 37
adverse notice;and(d)who were hired. Public employers shall also regularly
conduct a confidential,anonymous survey of employees in public employment
positions,in which background checks are not conducted,to determine the number
of people with records hired.
(c) Any appeals or complaints or grievances concerning violations of these sections by
public employers shall be processed and adjudicated in accordance with established
State procedures.
(d) The State Personnel Department shall conduct an audit to review the State's hiring
practices in an effort to ensure that people with records are not unreasonably
denied employment with the State.
[IF ADDING PRIVATE EMPLOYERS,THEN ADD:]
(e) The Enforcement Agency may issue a fine of up to$1000 for a first violation of
Sections 1-6 and provide counseling to the private employer to ensure future
compliance. Subsequent violations are subject to fines of up to$2000 per violation.
In addition,an individual may bring a civil action in any court of competent
jurisdiction against the employer or other person violating Sections 1-6,and upon
prevailing,shall be entitled to such legal or equitable relief as may be appropriate to
remedy the violation including,but not limited to damages,injunctive relief,and
reasonable attorney's fees and costs. Where an employer does not maintain or
retain adequate records documenting compliance or does not allow the
Enforcement Agency reasonable access to such records,it shall be presumed that
the employer did not comply,absent clear and convincing evidence otherwise.
Sec.9. Application
The provisions of these sections shall prevail over any other laws and rules which
purport to govern the granting,denial,renewal,suspension,or revocation of a license or
the initiation,suspension,or termination of employment on the grounds of conviction of
an offense. In deciding to grant,deny,revoke,suspend,or renew a license,or to deny,
suspend,or terminate employment for a lack of good moral character or the like,the
hiring or licensing authority may consider evidence of conviction of an offense but only
in the same manner and to the same effect as provided for these sections. Nothing in
these sections shall be construed to otherwise affect relevant proceedings involving the
granting,denial,renewal,suspension,or revocation of a license or the initiation,
suspension,or termination of employment.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 38
5 Research Supports Fair Chance Policies
NELP's conservative estimates indicate that roughly 70 million people in the United
States have some sort of a criminal record'and nearly 700,000 people return to our
communities from incarceration every year.Numerous research studies find that people
require a combination of family support,community assistance,and economic
opportunity to make different choices and stay out of the criminal justice system.
Having access to employment opportunities is a critical component of this web of
support. A steady job provides not just financial resources,but also connections to new
people and behaviors and a motivation to remain out of incarceration.
Unfortunately,finding a job is all too difficult for many people with records.Men with
criminal records account for about 34 percent of all nonworking men between the ages
of 25-54(generally considered to be prime working age),according to a New York
NELP estimates Times/CBS News/Kaiser Family Foundation poll?And the Great Recession made it even
that 70 million worse;for example,in Washington State,researchers found that before the Recession 40
percent of the formerly incarcerated were employed,but in 2008 the proportion had
people in the dropped to 10 percent.3
United States have
an arrest or While having a job—especially a low-wage job—is not a guarantee that a formerly
conviction record. incarcerated person will not reoffend,unemployment strains critical family supports
and provides opportunities and motives to reengage in illegal behaviors. Thus,
removing a barrier that cuts off employment opportunities before the hiring process
even begins,is critical to designing a robust policy platform to help millions of
Americans with criminal records reenter our communities.
Below is 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.
A. Removing Job Barriers for People with Records Helps the Economy
• Economists estimated that because people with felony records and the formerly
incarcerated have poor prospects in the labor market,the nation's gross
domestic product in 2008 was reduced by$57 to$65 billion.4
• A 2011 study by the Economy League of Greater Philadelphia found that
putting 100 formerly incarcerated persons back to work would increase their
lifetime earnings by$55 million,increase their income tax contributions by$1.9
million,and boost sales tax revenues by$770,000,all while saving more than$2
million annually by keeping them out of the criminal justice system.s
• A Washington State analysis found that providing job training and employment
to a formerly incarcerated person returned more than$2,600 to taxpayers
(2014 dollars).6
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 39
• By the time he has hit his peak earning years,a typical former inmate will have
earned$192,000 less in 2014 dollars than if he had never been incarcerated,7
with a commensurate decline in income taxes and a diminished ability for
consumer activity with accompanying sales taxes.
■ In a study of women released from prisons in Texas,18 percent of respondents
reported depending on public assistance even 8 to 10 months after release.8
Another study found that nearly one-fifth of heads of households relying on
Temporary Assistance for Needy Families(TANF)had been convicted of a
felony or arrested.9 These numbers don't fully reflect the need experienced by
people with records and their families since some types of violations disqualify
applicants for various types of publicly-funded supports.
B. Employing the Formerly Incarcerated Improves Public Safety
• A 2011 study of the formerly incarcerated found that employment was the
single most important influence on decreasing recidivism,and that two years
after release nearly twice as many employed people with records had avoided
another brush with the law than their unemployed counterparts.19
• A three-year recidivism study found that formerly incarcerated persons with
one year of employment had a 16 percent recidivism rate over three years as
compared to a 52.3 percent recidivism rate for all Department of Correction
releases. Even just 30 days of employment lowered the three-year recidivism
rate to 20 percent."
• An examination of a national experimental public work program for the
formerly incarcerated found that even marginal employment opportunities
were effective in reducing illegal activity and arrest for those over 27 years of
age.12
• A study of state-level data concluded that a 1 percent drop in the
unemployment rate causes a 2 percent decline in burglary,a 1.5 percent
decrease in larceny,and a 1 percent decrease in auto theft.13
C. Children and Families Suffer When People with Records Can't Work
• In the year after an incarcerated father is released,family income drops by
approximately 15 percent from what it was before incarceration.14
• Upward mobility for those with criminal records is significantly diminished;
while one-third of men without a record in the lowest quintile of earners were
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 40
still at that level 20 years later,more than two-thirds of men with records were
stuck there.15
• One survey of family members of the formerly incarcerated found that 68
percent said those who were parents were having trouble paying child support,
43 percent were challenged in regaining custody of their children,and 26
percent experienced trouble rebuilding relationships with family.16
■ Families of the formerly incarcerated often struggle to provide them with
financial help. One study of women with felonies found that 65 percent relied
on a family member or spouse for financial support.17
• Interviews with family members of formerly-incarcerated men found that 83
percent had provided the recently released family member with financial
•
support,but that half those reported that this presented financial challenges for
themselves and 30 percent went so far as to call these"financial hardships."18
D. Fair Chance Policies Help People with Records Get Jobs
Employers Refuse to Consider Applicants With Criminal Records
• A study of help-wanted advertisements in Virginia found that of more than
192,000 total positions listed,just under 16,000 (or 8.23 percent)were open to
hiring an applicant with a record.19
■ Interviews with Boston-area employers found that employers were especially
uncomfortable considering a recently released person with a record.20
• Other employer interviews indicated that while nearly all employers would
"definitely"or"probably"hire applicants on public assistance,with lengthy
unemployment spells,or other"stigmatizing characteristics,"only 40 percent
would give the same consideration to applicants with criminal records.21
• Studies have shown that if hiring discrimination takes place,it is most likely(76
percent)to take place at the first interaction:the submission of a job
application. Applicants who indicate a criminal record on these applications are
much less likely to get a call-back:34 percent of whites without a record were
contacted,while only 17 percent of those with a record did;and among African
Americans 14 percent without a record got a callback,but only 5 percent one of
African Americans with a criminal record heard back from the potential
employer.22
NELP I FAIR CHANCE-BAN THEBOXTOOLKIT 41
Personal Contact and Context Put a Criminal Record in Perspective,
Giving Applicants a Fair Chance
• Studies show that time since release can itself be a predictor of subsequent
criminal activity:one found that among those who did not reoffend in the first
10 years after release,only 3.3 percent were reconvicted in the next 10 years;23
another found that the number of formerly incarcerated people who returned to
prison peaked at 10 months,and that the risk of re-offense halved every 10
months thereafter;24 and a third found that 6 or 7 years after release,the risk
for recidivism among those with criminal records was only marginally higher
than among those who had never offended.25
• A survey of California employers found that if they knew the nature of an
offense,their willingness to consider hiring a worker varied significantly,with
23 percent willing to hire a person with a drug-related felony,and 84 percent
willing to consider applicants with a misdemeanor offense,but a blanket
prohibition on hiring those with a"criminal record"does not allow for this kind
of qualitative assessment.26
• In a study in which test pairs of potential workers,one with a criminal record
and one without,applied for jobs researchers found that having personal
contact with the potential employer reduced the negative effect of a criminal
record by approximately 15 percent.27
• In a study released in 2014 of how hiring managers consider job applicants with
criminal records,one of the central themes of the employers'accounts of hiring
was that applicants can compensate for their criminal records based on their
personality and ability to make in-person contact with hiring authorities.28
E. Employers Find Valued Workers
• One study of former prisoners found that 8 months after release,80 percent of
employed respondents said that their employers knew about their criminal
record but that they were satisfied with their work and their wages.29
• The Human Resources Director for Austin,TX,endorses their Ban the Box
policy. "We don't hire people because they[have records],we hire people
because they're the most qualified...There is a social responsibility for
Government to help enable that benefit for the community...There are
extremely talented and qualified people who happen to [have records]...They
are just as productive as people who do not have criminal records."30
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 42
• "In my experience,people with criminal records are often model employees.
They are frequently the most dedicated and conscientious. A lot of doors are
shut to them,so when someone gives them an opportunity,they make the most
of it." Brad Friedlander,CEO Red Restaurant Group.31
• In focus groups conducted by the U.S.Department of Labor's Center for Faith-
Based and community Initiatives in 2002,employers of people with criminal
records said:"One of the[people with records]we hired is now a store
manager,and another is an assistant manager. Each has excellent management
skills and both are great mentors to other[people with records]we've hired";
and,"There are many misconceptions out there about[people with records].
We try to look beyond that label and consider each person on his or her
merits—on a case-by-case basis."32
• Terri Jackson,head of a telecommunications company in Denver,CO,has said,
"Of all the groups we targeted,[people with records]turned out to be the best
employees,in part because they usually have a desire to create a better life for
themselves...They are often highly motivated and many have usable job skills
that are desirable for an employer. They come to work every day and do not
engage in the type of behaviors that will land them back in the penal system."33
• Mark Chippendale,a former manufacturing executive and current Rhode Island
state representative,"In my experience,a lot of times these folks actually make
exemplary employees because they work harder and they have something to
prove in a way,or that's how they feel."34
• "I believe our society should do more to support positive initiatives to
encourage the rehabilitation of prisoners. We should create more chances for
people who have been in jail to make a positive contribution to the workforce,"
Richard Branson,founder of Virgin Airlines and Virgin Group,a consortium
comprised of more than 400 companies worldwide.35
• Joey Turner,owner of Brewed,a coffeehouse in Fort Worth,TX,says of his
employees with criminal records: "It's not just a job for them—it's their life. It's
the on-ramp for them to get back into society. They have inspired our staff
because they are so serious."36
• "Numerous studies prove that a job is the key ingredient in the recipe for
stronger communities and reducing recidivism. Our role is to create those job
opportunities and at a fair,living wage."Gregg Keeling,President
RecycleForce.37
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 43
• 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."39
F. Fair Chance Policies Have Proven Effective
• After the City of Minneapolis implemented its policy,they found that removing
the criminal disclosure box from initial applications and postponing background
checks until a conditional offer of employment was made decreased the amount
of transactional work for City staff,did not slow down the hiring process,and
resulted in more than half of applicants with convictions being hired.39
• As a result of its new criminal disclosure policy,10 percent of the City of
Since fair hiring Atlanta's hires between March and October of 2013 were people with records.40
policy passed in
Durham County, • In Durham County,North Carolina,the number of applicants with criminal
NC, the number of records recommended for hire has nearly tripled in the two years since its"ban
the box"policy passed,with the resulting number of hires increasing from 35 to
applicants with 97. On average,96.8 percent of those with records recommended for hire
criminal records ultimately get the job.41
has nearly tripled.
1 In 2012,there were an estimated 100,596,300 subjects(Individual offenders")in the state criminal
history files within the fifty states,American Samoa,Guam and Puerto Rico.U.S.Dept.of Justice,
Bureau of Justice Statistics,Survey of State Criminal History Information Systems,2012(Jan.2014)at
p.2(https://www.ncirs.gov/pdffilesl/bis/grants/244563.pdf) To account for duplication(individuals
who may have criminal records In more than one state),NELP conservatively reduced the numbers
cited in the survey by 30%to 70,417,410 subjects.The U.S.Census 2012 population estimate for those
that are 18 years and over was 240,185,952.Annual Estimates of the Resident Population by Sex,Age,
Race,and Hispanic Origin for the United States and States:April 1,2010 to July 1,2012,U.S.Census
Bureau,Population Division(June 2013).(www.census.gov) Using these estimates,there are 70 million
U.S.adults or almost one in three U.S.adults(29%)with a criminal history in the U.S.state criminal
history files.
2 Binyamin Appelbaum,"Out of Trouble,but Criminal Records Keep Men Out of Work,"New York
Times(Feb.28,2015)(http://www.nytimes.com/2015/03/01/business/out-of-trouble-but-criminal-
records-keep-men-out-of-work.html? r=0). Poll available at http://kff.org/other/poll-finding/kaiser-
fam ilv-foundationnew-vork-timescbs-news-non-em pl oyed-poll/,
3"Educational Attainment,Employment and Incarceration,Part 2,"Seattle,WA:Seattle Jobs initiative,
2012.(http://www.seattleiobsinitiative.com/wp-content/uploads/BeyondHeadlines MAR2012.pdf)
4 John Schmitt and Kris Warner,"Ex-offenders and the Labor Market,"Washington,D.C.:Center for
Economic and Policy Research,2010.(http://www.cepr.net/documents/publications/ex-offenders-
2010-11.pdf)
5"Economic Benefits of Employing Formerly incarcerated Individuals in Philadelphia,"Philadelphia,PA:
Economy League of Greater Philadelphia,2011.(http://economvleague.org/files/ExOffenders -
Full Report FINAL revised.pdf)
e Elizabeth K.Drake,Steve Aos,and Mama G.Miller,"Evidence-Based Public Policy Options to Reduce
Crime and Criminal Justice Costs: Implications in Washington State,"Victims and Offenders(4),2009:
NELP I FAIR CHANCE—BAN THE BOX TOOLKIT 44
170-196.
(http://ilvoicescom.ipage.com/unloads/2/8/6/6/2866695/evidence based reasearch for public polic
v.pdf)
7 Bruce Western and Becky Pettit,"Collateral Costs:Incarceration's Effect on Economic Mobility,"
Washington,D.C.:The Pew Charitable Trusts,2010.
(http://www.pewtrusts.org/uploadedFiles/Collateral Costs.pdf?n=8653)
8 Nancy G.La Vigne,Lisa E.Brooks,and Tracey L.Shollenberger,"Women on the Outside:
Understanding the Experiences of Female Prisoners Returning to Houston,Texas,"Washington,D.C.:
Urban Institute,2009.(http://www.urban.org/UploadedPDF/411902 women outside houston,pdf)
9 Gretchen Kirby,Thomas Fraker,LaDonna Pavetti,and Martha Kovac,"Families on TANF in Illinois:
Employment Assets and Liabilities,"Washington,D.C.:Mathematica Policy Research,Inc.,2003.
(http://aspe.h hs.gov/hsp/ta nf-it-emp03/report.pdf)
10 Mark T.Berg and Beth M.Huebner,"Reentry and the Ties that Bind:An Examination of Social Ties,
Employment,and Recidivism,"Justice Quarterly(28),2011:382-410.
(http://www.tandfonline.com/doi/a bs/10.1080/07418825.2010.498383?io u rnalCode=riav20#preview)
11"Safer Foundation Three-Year Recidivism Study,2008,"Chicago,IL:2008.
(http://saferfou ndation.ora/files/documents/Safer%20Recidivism%205tudv%202008%20Summarv.pdf)
12 Christopher Uggen,"Work as a Turning Point in the Life Course of Criminals:a Duration Model of
Age,Employment,and Recidivism,"American Sociological Review(67),2000:529-546.
•
(http://www.socsci.umn.edu/"uggen/Uggen asr 00.pdf)
73 Steven Raphael and Rudolf Winter-Ebmer,"Identifying the Effect of Unemployment on Crime,"The
Journal of Law and Economics(University of Chicago Law School)(44),2001:no page numbers
available.(http://www.istor.org/stable/10.1086/320275)
14 Western and Pettit,2010.
1s Ibid.
18 Tracey Shollenberger,"When Relatives Return:Interviews with Family Members of Returning
Prisoners In Houston,Texas,"Washington,D.C.:Urban Institute,2009.
(http://www.urban.ora/UploadedPDF/411903 when relatives return.pdf)
17 La Vigne,2009.
18 Rebecca L.Naser and Christy A.Visher,"Family Members'Experiences with Incarceration and
Reentry,"Western Criminology Review 7(2),2006:20-31.(http://wcr.sonoma.edu/v07n2/20-
naser/naser.Pdf)
19 Eric Lichtenberger,"Where do Ex-Offenders Find Jobs?An Industrial Profile of the Employers of Ex-
Offenders in Virginia,"Journal of Correctional Education 57(4),2006:297-311.
(http://www.istor.ore/discover/10.2307/23282804?uid=3739856&uid=2129&uid=2134&uid=2&uid=7
08tuid=4&uid=3739256&sid=21103716568513)
20 Jennifer Fahey,Cheryl Roberts,and Len Engel,"Employment of Ex-Offenders:Employer
Perspectives,"Boston,Massachusetts:Crime&Justice Institute,2006.
(http://208.109.185.81/files/ex offenders employers 12-15-06.ndf)
21 HarryJ.Holzer,"Collateral Costs:The Effects of Incarceration on the Employment and Earnings of
Young Workers,"Bonn,Germany:IZA Discussion Paper No.3118,2007.(http://ftp.iza.org/dp3118.pdf)
22 Devah Pager,"The Mark of a Criminal Record,"American Journal of Sociology 108(5),2003:937-975.
(http://scholar.harvard.edu/files/pager/files/pager ais.pdf)
23 Alfred Blumstein and Kiminori Nakamura,"Redemption in the Presence of Widespread Criminal
Background Checks,"Criminology 47(2),2009:327-359.
(http://www.search.org/files/pdf/Redemption Blumstein Nakamura 2009Criminology.pdf)
74 Shawn D.Bushway and Gary Sweeten,"Abolish Lifetime Bans for Ex-Felons,"Criminology and Public
Policy 6(4),2007:697-706.(http://www.reentrvaftercare.org/pdf/Bushway%20-
%20Abolish%20Lifetime%20Bans%5B1%5 D.pdf)
NELP I FAIR CHANCE—BAN THE BOX TOOLKIT 45
25 Megan C.Kurlychek,Robert Brame,and Shawn Bushway,"Scarlet Letters and Recidivism:Does an
Old Criminal Record Predict Future Offending?"Criminology and Public Policy 5(3),2006:483-504.
(htte://www.liay.cunv.edu/ScarietLetter.pdf)
26 Fahey,Roberts,and Engel,2006.
27 Devah Pager,"Sequencing Disadvantage:The Effects of Race and Criminal Background for Low-Wage
Job Seekers,"Statement to the U.S.Equal Employment Opportunity Commission,convened November
20,2008.(http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm)
29 Sarah Lageson,Mike Vuolo,and Chris Uggen,"Legal Ambiguity in Managerial Assessments of
Criminal Records,"Law&Social Inquiry,2014.
(http://onlinelibrary.wiley.com/doi/10.1111/Isi.12066/abstract)
23 Christy Visher,Sara Debus,and Jennifer Yahner,"Employment after Prison:A Longitudinal Study of
Releasees in Three States,"Washington,D.C.:Urban Institute,2008.
(http://www.urban.org/UploadedPDF/411778 employment after prison.pdf)
30 Quoted in Eric Krell,"Consider the risks—and rewards—of hiring ex-offenders,"HR Magazine 57(2),
2012:no page numbers available.
(http://www.shrm.org/publications/hrmagazi ne/editoria Ico ntent/2012/0212/pages/0212 k roll.aspx)
31 Brad Friedlander,"Give criminals another employment shot,"Crain's Cleveland Business,May 21,
2012.(http://www.crainscleveland.com/article/20120521/SUB1/305219985&template=mobile#ATHS)
32"Ready 4 Work:Business Perspectives on Ex-Offender Reentry,"Washington,D.C.:Center for Faith-
Based and Community Initiatives,U.S.Department of Labor,2002.
(http://www.doleta.gov/rexo/pdf/R4W Business Perspectives Ex offender reentry.pdf)
33 Quoted in"Ex-Offenders In Employment:Issues Surrounding Ex-Offender Hiring Practices in Iowa,"
Des Moines,IA:Iowa Civil Rights Commission,undated.
(http://www.iowa.gov/government/crc/docs/ExOffendersin Employment2009.pdf)
34 Quoted In Suzy Khimm,"States push to provide some ex-felons a second chance,"MSNBC,July 21,
2013.(http://www.msnbc.com/all-in/states-push-provide-some-ex-felons-secon)
35 Richard Branson,"Employing more ex-offenders,"Undated open letter posted on Virgin's webpage,
accessed March 11,2014.(http://www.virgin.com/rchard-branson/employing-more-ex-offenders)
36 Quoted In Shelley Kofler,"In Tarrant County,Program Helps Turn Former Prisoners Into Eager
Employees,"KERA News,January 4,2014,(http://keranews.org/post/tarrant-county-program-helps-
turn-former-p risone rs-eager-employees)
37 Quoted In"RecycleForce Answers Obama's Call,Offers Ex-Offenders Minimum Wage of$10.10,"
Care2 Website,February 26,2014.(http://www.care2.com/causes/recycleforce-answers-obamas-call-
offers-ex-offenders-m inimum-wage-of-10-10.htm l)
38Inside the Wacky World of Weird Data:What's Getting Crunched,
http://www.cnbc.comild/101410448
33 Letter from City Council Member Elizabeth Glidden with Attachment of City of Minneapolis
Conviction History Summary 2004-2008 YTD(March 16,2009)(http://www.nelp.org/page/-
/SCLP/2014/Guides/Glidden-Ltr-Minneapolis2004-2008.pdf?nocdn=l)
40 Materials on file with the National Employment Law Project.
41 Daryl Atkinson&Kathleen Lockwood,"The Benefits of Ban the Box:A Case Study of Durham,NC,"
The Southern Coalition for Social Justice,Oct.2014(http://www.southerncoalition.org/wp-
content/uploads/2014/10/BantheBox WhitePaper-2.pdf)
NELP I FAIR CHANCE—BAN THE BOX TOOLKIT 46
Appendix
• Community Hiring Model Language
• NELP Voices in Support Factsheet
• Example of State Campaign Materials (California AB 218)
• Example of Local Campaign Materials(San Francisco Fair Chance
Ordinance)
Not included in this Appendix due to the frequency of updating the
number of jurisdictions with "ban the box"is the Fair Chance Factsheet &
FAQ available through this link. In addition, the Compilation of Media
Featuring Fair Chance and Ban the Box is available through this link.
NELP I FAIR CHANCE-BAN THE BOX TOOLKIT 47
Gov.Chris Christie(R-NJ)Bans the Box to End Discrimination.
"[W]e are also going further to reform our criminal justice system by signing legislation that
continues with our promise and commitment to give people a second chance....So,today,we
are banning the box and ending employment discrimination.And this is going to make a
huge difference for folks who have paid their debts to society,who want to start their lives
over again and are going to have an opportunity to do just that in our state."Governor Chris
Christie,Signing Legislation to Ban the Box(Aug.11,2014)
U.S.Senator Rand Paul(R-KY) Understands that the"Box"is a Barrier.
"I know a guy about my age in Kentucky,who grew marijuana plants in his apartment closet
in college. Thirty years later,he still can't vote,can't own a gun,and when he looks for work
he must check the box,the box that basically says: 'I'm a convicted felon and I guess I'll
always be one.'...This is a lifelong problem then with employment." U.S.Senator Rand Paul,
Senate iudiciary Committee Testimony(Sept.16,2013).
Ban the Box Policy has been a Tremendous Benefit to County.
"[T]here has been no negative or adverse consequences since we made this change back in
2007. The feedback that we've received has been overwhelmingly positive. In fact what we
hear from members of the community is that they are far more likely to apply for a position
with Alameda County based on this change that we made...[W]e've been able to expand our
pool of qualified applicants as a result of this change in our application process,which has
been a tremendous benefit to the County." Jody Pollak,Alameda County Labor Relations
Analyst,Testimony before the California Senate Labor Committee(June 26,2013).
Faith Community
Ban the Box Is Win-Win for Businesses and Job Seekers.
"This unanimous decision to'ban the box'[in Louisville,KY] is a'win-win'for our city...[B]y
extending the policy to include vendors who do business with the city,there will be
thousands of businesses who will earn the benefits of opening their doors more fully to
people who are skilled and motivated to be quality employees." Rev.Larry Sykes,Citizens of
Louisville Organized and United Together, Heart of Bluegrass State is Latest to"Ban the Box"
with Bipartisan Support(March 17,2014).
Law Enforcement
Pittsburgh Attorney General Endorses Ban the Box.
U.S.Attorney David Hickton said,"If you give someone a shot after they've made a mistake,
they often become your best employee... [People] are coming out,and we have a choice. We
can take steps when they come out to give them a chance,or we can cycle them right back
into the system." Mr.Hickton urged private employers to follow the lead of Pittsburgh and
Philadelphia and"ban the box." Pittsburgh Post-Gazette Pittsburgh's U.S.Attorney Urges
Employers to Hire People with Records (May 20,2013).
Richmond,California Chief of Police Supports Fair Hiring.
"[This policy]will help reduce recidivism and provide members of the Richmond community
and other residents of California the opportunity to compete for jobs." Chief Chris Magnus,
City of Richmond,Letter in Support of California AB 218(July 17,2013).
NELP I VOICES IN SUPPORT FACT SHEET I APRIL 2015
2
NATIONAL
ELP EMPLOYMENT
FACT SHEET I APRIL 2015
PROJECT
Voices in Support: Leaders In The
Community Support Fair Chance
Policies
Supporting the ability of qualified workers with records to obtain employment,thereby
reducing recidivism and lowering criminal justice costs,is a bipartisan issue that has garnered
support from a variety of leaders. Below are quotes from leaders who lend their voices in
support of fair chance policies.
Business Leaders
Major Corporations Target and Walmart Ban the Box Nationally.
"Walmart removed the criminal history box from its application in 2010,said spokeswoman
Dianna Gee. 'The removal does not eliminate the background check or drug test,but it offers
those who've been previously incarcerated a chance to get their foot in the door,'she said."
Target's Vice President and General Counsel of Employee and Labor Relations,Jim Rowader
said of the company's ban the box policy,"We're interested in a safe workplace and shopping
environment...." Star Tribune,Target to Ban Criminal History Box on lob Applications (Oct.
26,2013).
Small Business Owners Recognize the Benefit of Hiring People with Records.
"I joined Main Street Alliance of Florida,a network of local small business owners,to help
change[the employment barrier problem].Along with nearly 200 civil and workers'rights
groups around the nation,we are calling on President Obama to take executive action to
ensure that qualified job-seekers with past arrests or convictions are not automatically shut
out of employment opportunities with federal agencies and federal contractors." The
Guardian,Keeping People with Felonies From Earning Doesn't Make us Safer.Only Poorer
(March 31,2015).
Federal, State, and Local Policymakers
Gov.Nathan Deal (R-GA)Bans the Box Because its Good for Business.
"'Ban the Box—hiring policies enhance Georgia's reputation as the number one place in
which to do business by increasing qualified applicant pools and improving the likelihood
that the employer will identify the best candidate for the position;and Georgia is positioned
to enhance its reputation as regional leader by becoming the first state in the South to
implement a fair hiring policy for applicants with criminal records."State of Georgia
Executive Order by the Governor(Feb.23,2015).
NELP I VOICES IN SUPPORT FACT SHEET I APRIL 2015 1
Explaining the Model Language: The Components
Ban the Box Measures and Practices
• A background check may be unnecessary for a job position because most jobs do not
involve unsupervised access to sensitive populations or handling sensitive information.
• If a background check is necessary,only consider those convictions with a direct
relationship to job responsibilities.Avoid consideration of old records.
• Do not consider arrests or dismissed convictions.Some jurisdictions prohibit the
consideration of"arrests not leading to convictions"or"dismissed convictions"in an
employment decision.
• Delay inquiry of criminal history.Requiring that any question regarding criminal
histories is removed from a job application is clear and easily enforceable.All inquiries,
oral or written,should be delayed.
• Conviction history inquiry after a conditional offer.The most effective policies delay
conviction history inquiries until after a conditional offer.A conditional offer signals that
the individual is the most qualified person for the job and the final step in the hiring
process is the criminal background check.
• Centralize reviewing conviction history information,both to limit the number of
people with access to confidential information and with fewer reviewers,a higher
degree of staff training can be assured.
• List any legal barriers that exist for people with past convictions in job
announcements. In addition,if a background check is required,inform applicants on the
job announcement.
• Remove self-reporting questions about convictions.Differences between self-
disclosed information and background checks are often caused by misunderstandings
and are inaccurate"truth tests."
• If a job applicant is rejected because of a past conviction,provide the applicant with
written notice of the specific conviction that is considered job-related and how it is
related to the job responsibilities.
• Provide the applicant with a copy of the results of any background check.
Background check reports are often inaccurate,so give applicants the chance to
challenge the reported information.Under federal consumer protection law(Fair Credit
Reporting Act(FCRA)),the subject of a commercially-prepared background check report
must be provided a copy of the report prior to an adverse action.
• Provide the applicant the right and sufficient time to submit evidence of
rehabilitation when a record is considered in hiring. Evidence may include letters of
recommendations from community members and certificates from programs or
education. Hold the position open until the review is complete.
• Include effective enforcement.Ensure there is an oversight mechanism for the policy,
such as an agency that has the infrastructure to process complaints and to audit policies.
NELP AND PWF I COMMUNITY HIRING MODEL i MARCH 2O14
2
NATIONAL
ELP LAWLOYMENT
PARTNERSHIP MODEL MARCH 2014
PROJECT °'WorkingFamilies
Community Hiring Model Language:
Why Do We Need It And How Does
It Work?
Each year hundreds of thousands of people are released from incarceration and return to
neighborhoods suffering from underemployment and lack of opportunity.In order to put our
communities back to work, we need policies that prioritize lifting local residents out of poverty
by giving them access to good jobs.
• Community hiring requirements create incentives for employers to hire from the
community,and good first source referral systems create the pipeline of qualified
workers from low-income areas prepared to meet that demand.
• Ban the box policies remove questions of criminal history from the initial job
application,ensuring applicants are considered on their qualifications first
• Job quality standards such as living wage,paid sick days,and other measures help
make sure that the jobs made available are good jobs.
These policies work together to enhance the applicant pool available to employers,assist
employers and policymakers in complying with federal antidiscrimination laws and in
redressing economic inequality,and strengthen our communities. This resource will provide
information on integrating the policies.
Key Components of a Combined Community Hiring and Ban the Box
Approach
Reducing stigma.Some of the ways that people with arrest and conviction records are
described reinforces stereotypes.There has been growing consensus that leading with the
term"people"is humanizing,such as"people with arrests or convictions"or"people with
criminal histories."
What do these measures do?At a minimum,the ban the box component includes removing
questions about criminal records from the job application.More effective ban the box
policies include the components detailed below.Targeted hiring measures create obligations
on employers to include particular categories of workers such as local and disadvantaged
workers as a part of their workforce.
Who is covered?The combined measures can be written into law,policy or contracts to
cover local government hiring,include contractors with the local government,or even
expand to all public and private employers within the area.
NELP AND PWF I COMMUNITY HIRING MODEL I MARCH 2014 1