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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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California Just Passed Landmark Law to Stop Bosses From Discriminating Against People with Convictions

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In an important victory for formerly-incarcerated workers fighting employment discrimination, Calif. Gov. Jerry Brown signed Assembly Bill 1008 into law on October 14, establishing some of the strongest “Ban the Box” legislation in the country. Brown’s signature can be attributed to tireless organizing on the part of formerly incarcerated individuals and their advocates.

One of the biggest challenges facing people returning from prison is employment. Many jobs require applicants to check a box if they have ever been convicted of a crime, but offer no opportunity to explain the circumstances of their arrest. Employers often disregard formerly incarcerated individuals, regardless of their given situation. “Banning the Box” removes this question from applications, requiring businesses to assess the job-seekers’ criminal background only after the individual’s qualifications have been considered.

Under AB 1008, or the California Fair Chance Act, restrictions on employers’ criminal background checks have been extended to private companies. This means that, as of January 1, 2018, no California business with five or more employees will be allowed to ask about or consider an applicant’s conviction history before an employment decision is made.

The legislative victory is the culmination of a fight that has lasted more 14 years, as the grassroots organizing project All of Us or None started the campaign during the early 2000s. All of Us or None sprung out of the group Legal Services for Prisoners with Children (LSPC.)

LSPC’s Communications Director Mark Fujiwara spoke with In These Times about the bill. Formerly incarcerated himself, Fujiwara emphasized that his group’s organizing was primarily led by individuals who had spent time in prison—and have experienced the system firsthand. “Having a grassroots organizing project like All of Us or None is key to creating a sense of community and empowerment for directly-impacted people and our families, as every aspect of the prison industrial complex is designed to separate and isolate people,” he said.

Sandra Johnson is another formerly incarcerated member of LSPC who was on the frontlines of California’s “Ban the Box” fight, testifying during hearings and advocating to legislators. She told In These Times that she was fired from her job of six years after her former employer accused her of concealing her conviction history. “It was devastating,” she told In These Times, “I don’t want anyone else to feel what I felt.”

AB 1008 also received a visibility boost from high-profile supporters like the musician John Legend. About a month before its passage, Legend wrote a letter to Governor Brown calling on him to act on the issue. “For too long, these men and women have been defined by the worst moments of their lives,” Legend wrote. “They have been stigmatized, even after paying their debt to society, and? ?they? ?have? ?seen how? ?a? ?criminal? ?record? ?takes? ?a? ?wrecking? ?ball? ?to? ?future? ?employment.”

“Ban the Box” legislation is particularly important in California. According to the National Employment Law Project (NELP), nearly one out of every three California adults has an arrest or conviction on their record. That’s roughly 8 million people statewide. “The old approach didn’t serve any of us well,” NELP staff attorney Phil Hernandez told In These Times. “When 8 million people across the state are effectively shut out of employment, that shrinks the economy, undermines public safety, and harms families and communities. For those reasons, this new law—which aims to give people with records a fair chance at employment—will ultimately benefit all of us.”

NELP studies also show how restrictive hiring practices have a devastating impact on children and families. Almost half of U.S. children have at least one parent with a record. According to a survey with family members of formerly incarcerated individuals, 68 percent said that those who were parents had trouble paying child support after being released from prison. One study of formerly incarcerated women revealed that 65 percent of them were relying on a family member for financial support.

The fair hiring movement has gained considerable steam in recent years. AB 1008 makes California the 10th state to ban the box for public and private sector workers. Twenty-nine states now ban the box for public employees, and five of them have done so this year: Utah, Nevada, Pennsylvania, Indiana, and Kentucky. In 2015, President Obama endorsed the practice for federal employees. There are also increasing efforts to extend ban the box policies to colleges. In June, Louisiana became the first state to block public universities from asking applicants about their criminal history.

This article was originally published at In These Times on November 6, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria


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