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Banning the Criminal Background Box in Bibb: Tillman’s Proposal Passes Macon-Bibb Commission by a 6-3 Vote

February 22, 2015 Edition 2, Opinion No Comments
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By Alan Wood of Georgia Watchdog

One piece of news from Macon-Bibb this past week may prove to have a lasting impact on many people looking for employment.  It will not magically solve the high unemployment rate in Macon-Bibb County, but it might help level the playing field for a good percentage of job seekers.  Macon-Bibb commissioners voted 6 to 3 in favor of the “Ban the Box” proposal last Tuesday, February 17, 2015.  The box this refers to is the one found on employment applications asking about criminal records.  It’s important to note that this would only apply to applicants applying for governmental jobs in Macon-Bibb, and not for private sector employment, or for state or federal jobs.

For people looking for employment who do not have a squeaky-clean record, finding gainful employment can be a daunting task.  I personally know someone in this boat.  Although he asked to remain anonymous, he did consent to including his story for this article.

He said that he had applied to hundreds of jobs both in the private and public sector.  He got to the final step in the hiring process on three separate occasions, but then lost the job once the background check came back.  His crime?  A drug arrest over being caught with a small amount of marijuana in his car over three years ago.  While looking unsuccessfully for work for close to two years, he’s been a burden on his other family members that have had to support him financially. At times, the repeated stress of being rejected has left him depressed, even suicidal.

Self esteem and self worth are often tied to having a job.  When you meet new people, often the first question they ask is what is your occupation.  If you’re a carpenter, a teacher, or even have a job at Kroger bagging groceries, you can hold your head up high when answering. For those who are unemployed, even though they desperately have been seeking work, this is a question they dread hearing asked of them.

A 2010 survey by the Society for Human Resource Management (SHRM) revealed that a whopping 92% of responding employers conducted criminal records checks on at least some job candidates, and 73% said that they conducted criminal records checks on all candidates.  In an ideal world, human resource personnel would look at candidates on a case-by-case basis, but the reality is that most simply toss an application in the trash if an applicant has a criminal record, period.

This practice makes it next to impossible for many millions of Americans to be given a second chance. Without the ability to get a good job, it then becomes far easier to slip back into the bad habits that gave them their original arrest record. Essentially they are being punished twice, once with jail or fines, and then again by the difficulty of getting or keeping a good job because of that record.

The National Employment Law Project estimates that 65 million adults in the U.S. (about one in four) have criminal records.  No one is arguing that, for certain types of jobs, background checks aren’t warranted or prudent.  Some examples might include dealing with children or in healthcare fields.  However, that should not mean that applicants be summarily disqualified merely because the applicants had brushes with the law.

In many cases, the charges could have been erroneous, or of a nature that the charges would have no bearing on the type of person they are today.  Imagine, for example, a decades-old drug possession conviction, disturbing the peace at a protest, or even resisting arrest, which is a catch-all charge often used when police have no actual grounds for arrest.  How long should a person have to pay for something that happened 20 years ago, and was a minor offense even back then?

Another consideration with criminal background checks is the large number of potential mistakes.  Reports can be wrong.  People with similar names, expunged reports, incomplete reports, reports that may misclassify or inaccurately state the offense committed.

African-American and Latino men are the ones who tend to suffer the most as a result of these checks, since they are in groups that tend to be incarcerated at a far higher percentage than whites and Asians.  That means, if an employer has a policy of excluding anyone with an arrest or other criminal record, significant numbers of African American and Latino candidates could be categorically screened out.

In Macon, African-American men in particular need help on their paths to employment, and this check-the-box initiative is a fair effort to help them achieve responsible, gainfully employed positions.

The Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964 already provide some small measure of protection. The FCRA requires that reporting agencies follow certain guidelines. When it comes to employment and criminal records, these agencies cannot include arrests older than seven years unless the position pays more than $75,000 a year.  Conviction records, however, are not subject to these time limits.  Consumers also have the right to dispute these records. With rampant identity theft, it pays to monitor your credit and other records occasionally.

Everyone is familiar with Title VII, even if you do not know it by that name.  It’s a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.  In terms of how this applies to criminal background checks, the EEOC made clear that disqualifying applicants based on criminal records could lead to two types of discrimination claims: 1) Employers can’t run only background checks of people of one race and not another, or assume that a youthful drug offense for one race is fine while disqualifying an applicant of another race for the same offense.  2) If the employer applies a uniform policy that has a disproportionately negative effect on applicants of certain races, that could lead to a “disparate impact” claim.

So although it’s true that current federal law offers a small modicum of protection for applicants with criminal backgrounds, the reality is that finding a job with an arrest record is an uphill battle.  Banning the box in Macon-Bibb will make it just a tad bit easier than before for people looking for work.  Applicants will still need to follow all the same rules, and win the job as anyone else would have to do, so this does not give them any unfair advantage in hiring.  But it does at least allow them to apply on a more equal footing. They will still need to show up on time and make a good effort to keep the job if they’re hired, just like everyone else.  It does not give them any on-the-job preferential treatment.

Al Tillman

Commissioner Al Tillman sponsored and led the fight for this resolution. This is not the first proposal by Tillman that I have applauded, and I don’t think it will be the last.  He has impressed me as a very progressive thinker, not afraid to challenge the old status quo of Macon-Bibb County.

In a T.V. interview, Tillman said, “I think young men and women, who saw tonight that Macon-Bibb County is taking the lead on this, need to realize and take advantage of their second chance and opportunity.”

Only three commissioners opposed this bill — Gary Bechtel, Mallory Jones and Bert Bivins.  Bechtel was quoted as saying, “By bringing in politics, we open ourselves to people who may or may not be qualified.”  My response to that is that they were already doing that before. If a person has paid his or her dues to society for a past offense, society owes them a fair chance to become a productive member again. The old way stacked the deck against them, and simply made it more likely they would have to resort to crime to avoid being homeless.

I would like to see this expanded at the state and national levels. I’d also hope that private companies learn to loosen up their requirements, and start to give people a second chance.  Here are a few examples of some online job ads to demonstrate the hurdles applicants face with even a misdemeanor.

“No Exceptions! No Misdemeanors and/or Felonies of any type ever in background”

“DO NOT APPLY WITH ANY MISDEMEANORS / FELONIES”

“You must not have any felony or misdemeanor convictions on your record. Period.”

It’s little wonder why recidivism rates in the U.S. are hard to combat with language like that.  After applying for hundreds of jobs only to get rejected repeatedly, some of these people must feel they have no choice but to turn to working under the table, or even toward a life of crime.  I’m not saying that’s a valid or reasonable excuse, simply that this is what they may be thinking.  According to the National Institute of Justice, within three years of release, about two-thirds (67.8 percent) of released prisoners were rearrested.

We have over 2.2 million Americans incarcerated, and most will be released at some point in time. If people with only minor offenses who never went to jail or prison have a hard time finding employment, it becomes exponentially harder for someone who has been behind bars for a while.  In order not to add to that 2.2 million figure, we need to do a better job of not doubly punishing people who are trying simply to put food on the table and be productive in society. 

We already have too many cases where governmental regulations are burdensome, or place barriers up against people simply trying to live their lives. It is nice for a change to see a decision that will likely result in helping instead of harming people.  I salute the “Ban the Box” initiative in Macon-Bibb, and hope that we can see more forward-looking initiatives from our local Commission, and from our state and national leaders as well.

 

Sources:

65 Million Need Not Apply; The Case for Reforming Criminal Background Checks for Employment. 

Bibb “bans the box” on county job applications

 

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