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An Equitable Recovery Must Include Workers With Records

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The COVID-19 pandemic has laid bare a simple truth: We can be well as a society only if all working people are well.

Our health, both physical and economic, is interconnected. Throughout the past nine months, policies that reflect this interdependency and inherent human dignity have kept many individuals afloat. Going forward, policymakers must further embrace those values and work to ensure an equitable recovery that prioritizes the Black, Indigenous, and Latinx (across race) people who have already overcome so much.

People in the U.S. have lost over 300,000 loved ones to COVID-19 this year, and at least 26 million workers continue to face job or wage loss because of the pandemic-related economic downturn. Decades of systemic racism in health, labor, and economic policies ensured that the COVID-19 crisis has harmed disproportionately the health and economic security of BlackIndigenous, and Latinx people.

Incarcerated people, who are disproportionately Black, Indigenous, and Latinx, have been left to die behind bars at alarming rates. Roughly one in five individuals in prison has contracted the virus—more than four times the rate outside. And the communities located near prisons quickly saw spikes in COVID-19 cases as well. Policymakers largely ignored the people in our jails and prisons during this pandemic, and that immoral choice has been to our collective detriment.

Nothing can bring back the lives lost during this pandemic, but working people can demand that their elected officials focus on enhancing equity as the economy begins to recover. To that end, policymakers must prioritize working people of color, including the 70 million people with arrest or conviction records, who are also disproportionately Black, Indigenous, and Latinx. People with records are organizing across the country to transform institutions and rules. They call for policies that recognize their inherent dignity and ensure access by their families and communities to housing, food, and safe, living-wage jobs.

Racism in both the criminal legal system and hiring means people of color frequently face barriers to supporting their families and communities through work. Following decades of mass incarceration, nearly one in three U.S. adults now has a record that can show up on an employment-related background check. And because racism permeates every stage of the criminal legal system—from policing and sentencing to parole and supervision—Black and Latinx people are disproportionately criminalized and more likely to have a record and be treated unfairly across society because of it. Even before the pandemic, formerly incarcerated people faced higher levels of unemployment than during the Great Depression. Compounding that problem, racist hiring decisions by employers mean that the stigma of any record is more likely to inhibit the job prospects of Black and Latinx workers, particularly Black women.

But workers with records are calling on employers and policymakers to remove job barriers. Recognizing that laws often block workers with records from entire professions, some grassroots campaigns have focused on unfair occupational licensing background checks. Nationwide, more than one in four jobs require an occupational license or certification, which are often denied to people with an arrest or conviction record. The relevant laws and regulations vary by state, occupation, and job setting, weaving a maze of restrictions that can be difficult to navigate. That tangle of often-draconian occupational constraints is in desperate need of reform.

But where can reformers begin? One strategic approach is to focus on reducing barriers to jobs in high-demand industries. Many growing sectors—such as healthcare, childcare, and education—are also highly regulated. While restrictions to ensure health and safety are necessary, many record-related exclusions are not tailored to those goals and serve only punitive ends. In addition to preventing formerly incarcerated individuals from moving forward, such policies unnecessarily shrink the workforce and punish the families and communities of color that have been most impacted by mass incarceration.

NELP analyzed jobs data from the U.S. Bureau of Labor Statistics to identify growing occupations and examined the laws regulating those professions in eight states: Colorado, Delaware, Indiana, Louisiana, Michigan, Ohio, Oregon, and Tennessee. For each state, NELP developed a short fact sheet identifying the growing occupations and highlighting the strengths and weaknesses of the laws governing access to those careers by people with arrest and conviction records. While the laws and economic trends vary by state, some common themes emerged. In most states, jobs in healthcare (e.g., nurses, nursing assistants, home health aides), education, childcare, and private security have grown in recent years. The state-level restrictions for those occupations vary, but every state can better curb the unchecked discretion of agencies to deny a license or certification based on conviction records by adopting reforms that accomplish the following:

  1. Limit the scope of the record inquiry because unlimited and unguided discretion leads to inconsistent and discriminatory decisions, often based on race and national origin.
  2. Require boards and agencies to justify denials after considering common-sense factors related to relevancy.
  3. Mandate consideration by boards and agencies of evidence of rehabilitation and mitigating circumstances.

These changes would improve access by people with a record to careers in growing fields. For more information about these policy recommendations, please visit NELP’s “fair chance licensing” webpage.

In recent months, the workers most impacted by the pandemic and economic crisis have repeatedly signaled that society must not merely “go back to normal” and restore the status quo. Instead, they demand a broader vision for racial and economic justice—a future in which everyone can thrive and Black women are centered, not excluded. Policymakers must prioritize those demands from workers of color, including demands for fair access to work by people with records. As individuals with records seek to enter growing, licensed occupations across the nation, policymakers must respond to demands for fairness and ensure that the laws regulating those occupations are reformed to ensure equitable access to quality careers.

Contact your state representatives and let them know now is the time for transformative fair chance licensing reforms.

Read and download NELP’s new state fact sheets now.

This blog originally appeared at NELP on December 23, 2020. Reprinted with permission.

About the Author: Beth Avery, senior staff attorney, joined NELP in 2015 and has supported NELP’s efforts to create more diverse, inclusive, and equitable workplaces by providing legal and technical assistance on removing unfair barriers to employment. 


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“Ban the Box” Continues to Take Off

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erik idoni

Yesterday, June 10, 2015, the National Employment Law Project and The Leadership Conference on Civil and Human Rights called on President Obama to “Ban the Box” and give everyone a fair chance to get a job by pushing background checks to later in the hiring process and banning the check-box on job applications asking if a person has a criminal record. That was the latest step in the “Ban the Box” campaign that on June 1 saw Ohio become the 17th state to “Ban the Box”, and expects to see Oregon join them soon.

An estimated 68 million Americans have a criminal record, about one in four and more than the total population of France. On top of that, only around half of the FBI’s records are up-to-date, meaning an arrest without a conviction can still negatively impact employment chances due to an incorrect record. Not only do 92% of employers run background checks, but more than 800 occupations ban felons via the law or licensing rules. Furthermore, only 40% of employers interviewed said they would “definitely” or “probably” hire someone with a criminal record. Furthermore, the inability of ex-felons and formerly imprisoned Americans to get a job is costing the economy an estimated $57 to $65 billion per year in lost output.

The “Ban the Box” campaign’s purpose is to give people with criminal records a fair chance at getting a job. By eliminating background checks until later in the process, every person would have the chance to demonstrate their qualification without the shadow of a criminal record hanging over them. This can be a serious help to people with criminal records as 76% of hiring discrimination takes place when reviewing a job application.

The campaign took its first major step back in 1998 when Hawaii became the first state to pass a “Ban the Box” law. However, the term “Ban the Box” wasn’t coined until All of Us or None started using it in the early 2000s. Since then, “Ban the Box” has taken off, with four states passing “Ban the Box” laws already in 2015. While most states’ “Ban the Box” laws only apply to public employers, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, along with cities like Baltimore, San Francisco, and Washington, D.C., have extended the laws to private employers.

These policies have been effective as well. After Minneapolis “Banned the Box” over half of applicants with convictions were hired, 10% of the people hired by the City of Atlanta between March and October of 2013 had records, and the number of people in Durham County, North Carolina with criminal records that were recommended for hire nearly tripled in the two years since they “Banned the Box”. Employers don’t regret these decisions either as a study by Evolv found that employees with criminal records end up being 1% to 1.5% more productive than those without criminal records.

There are many ways for people who want to help “Ban the Box” to get involved. The National Employment Law Project has plenty of information on the campaign as well as campaign strategies, model policies, and much more. People can also visit the “Ban the Box” campaign website to take the pledge, get information on the campaign, and find tools for a successful campaign. Similarly, All of Us or None has their own toolkit for people to use on their campaign as they try to make Ohio the 17th state out of 50 to “Ban the Box”.

In the interest of both strengthening the economy and giving more qualified individuals a fair chance at getting jobs, we here at Workplace Fairness hope to see “Ban the Box” continue to thrive.

About the Author: The author’s name is Erik Idoni. Erik Idoni is a student at the George Mason University School of Law and an intern at Workplace Fairness.


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