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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 â€śfair 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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Los Angeles bans criminal history checkboxes on job applications

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Companies in the nation’s second-largest city must stop requiring job applicants to disclose criminal convictions on hiring forms next year after Los Angeles Mayor Eric Garcetti signed a “Ban the Box” law there on Friday.

The law does not prevent companies from conducting background checks once they have made a conditional job offer to a finalist. But it eliminates a standardized checkbox question about previous run-ins with the law, a common feature of job paperwork that makes it much harder for people to get back on their feet after serving their time. Firms with fewer than 10 employees are exempt from the law.

Sometimes called fair-chance hiring laws, such restrictions on how hiring managers solicit information about applicants’ criminal histories have grown in popularity over the past few years.

But the laws have typically applied only to hiring that involves taxpayer money, at government agencies and vendors who do business with the government. When President Obama moved to ban the checkbox last year, the executive action he took was limited to federal government hiring.

Inmates at a crowded California prison. CREDIT: AP Photo/Eric Risberg, File

Out of 24 states with fair-chance hiring laws, just nine extend to the private sector. Los Angeles is the 15th local jurisdiction to extend ban-the-box thinking to private firms. Among the five largest American cities, only Houston has yet to ban the checkbox.

Between 60 and 75 percent of people coming out of prison are unable to find work in their first year back on the street. Research indicates that an applicant’s chances of a callback drop by half if they indicate a criminal record—though white applicants who check the box fare significant better than black ones. There is also evidence that people who get far enough into the process to actually meet with a company representative are much more likely to get an offer despite their record—a key argument for eliminating the check-box filtering mechanism.

The idea’s spread during the latter years of Obama’s tenure seemed emblematic of the broader re-evaluation of a criminal justice system that is more punitive than rehabilitative. Formerly incarcerated people and their supporters rallied in front of the White House in 2015 to call for action, sharing stories of the hardships they faced in finding legitimate work after re-entering society.

The administration’s eventual move on hiring paperwork was just one in a flurry of progressive reforms to the incarceration system, all of which may be in jeopardy once president-elect Donald Trump takes office in January.

Americans leaving prison face high hurdles to regaining their economic and social footing without returning to crime. These obstacles are complicated to dismantle, rooted as they are in societal and individual prejudices about people with criminal pasts.

Policy changes can’t will charity into people’s hearts, of course, and there’s even some evidence to suggest that personal prejudices around the formerly incarcerated are so entrenched that fair-chance laws trigger ugly unintended consequences.

Two groups of researchers have published analyses suggesting that hiring managers simply begin ruling out young black men by default when they know they can’t ask about criminal history in the initial stages of their search. One of those studies outright argues that banning the checkbox does more harm than good.

But as the National Employment Law Project notes, that analytic conclusion gets things backward.

“Rather than identifying the root of the problem—which is both coupling criminality with being African American and the dehumanizing of individuals with records—the argument blames the reform,” NELP researchers wrote in response. “This distinctly economic framework, which views employers as entirely rational actors, fails to appreciate the extent to which negative racial stereotypes continue to plague the hiring process.”

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Today is Take Action Day for Federal Fair-Chance Hiring!

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Workplace Fairness is on the look out for important advancements in employee rights. That’s why we want our readers to take note of Fair-Chance Hiring Take Action Day. Check back here tomorrow morning for more information on Ban the Box on our blog, Today’s Workplace!

For now, here’s what you can do to get  from information sent to us by NELP:banthebox banner

Join NELP and The Leadership Conference on Civil and Human Rights today for a National Day of Action calling on President Obama to give people with records a fair chance at employment with federal agencies and contractors — because a mistake from the past shouldn’t be a life sentence to joblessness.


It’s time for the U.S. to adopt a federal #FairChance hiring policy! Tell @POTUS to #BantheBox pic.twitter.com/73sQk8oixo
.@POTUS can help open up employment opportunities for qualified job-seekers with records #BanTheBox #FairChance pic.twitter.com/73sQk8oixo
#FairChance reforms restore hope & opportunity to qualified job-seekers with an arrest or conviction record. @POTUS, it’s time to #BanTheBox


Tell him it’s time for the White House to lead the way in adopting fair-chance hiring practices. People should be judged on their skills and qualifications, not solely on a past mistake.

Did you know?

Seventeen states and more than 100 cities and counties have already adopted fair-chance hiring policies for people with records. So too have big companies such as Walmart, Home Depot, Target, and even Koch Industries.  If they can do it, why can’t our federal government?
Visit NELP’s Fair Chance campaign page for more info.

Thank you for your support!

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