BAN the BOX and beyond Emily Baxter in context and in practice - - PowerPoint PPT Presentation

Emily Baxter

BAN the BOX and beyond in context and in practice

The Council on Crime and Justice

Funding provided by the Emma B. Howe Memorial Foundation of The Minneapolis Foundation and the Jay and Rose Phillips Foundation

Landscape Relevant laws How to implement fair hiring policies Changing dialogue

ROADMAP

NOTE: The content of this document is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking legal advice should contact an attorney.

How many people in Minnesota are in prison, jail, on probation or on parole?

A. 1 in 5 B. 1 in 18 C. 1 in 26 D. 1 in 31

POP QUIZ!

How many people were under correctional control in Minnesota in 1982?

A. 1 in 8 B. 1 in 28 C. 1 in 76 D. 1 in 98

CORRECTIONAL CONTROL IN MINNESOTA

Source: Minnesota Sentencing Guidelines Commission report to the legislature 2013

CORRECTIONAL CONTROL IN MINNESOTA

Source: pewstates.org, The Long Reach of American Corrections Minnesota

Minnesota has the _____ highest rate of people under correctional control in the nation

A. 2nd B. 8th C. 23rd D. 48th

Source: The Sentencing Project’s Trends in US Corrections

 Hennepin County experienced a 328.7% increase in racial disparities in marijuana possession arrests from 2001 to 2010.  In 2010 23% of all MJ possession arrests made by the MPD were

• f whites, 76% were of Blacks. Blacks comprise 18.6% of the

Minneapolis population.  Black arrests increased by 47%; white arrests decreased by 30%.

ACLU TRACKED MPLS MJ DISPARITIES

DISPARITIES START EARLY

Source: The Minneapolis Foundation’s 2012 OneMinneapolis Report

 30.2 percent were arrested for an offense other than a minor traffic violation  Increase in arrests for drug-related offenses, zero- tolerance policies in school, and a more aggressive and punitive justice system

S t u d y p u b l i s h e d i n 2 0 1 1 P e d i a t r i c s j o u r n a l

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23

16 and 17 year olds charged with a felony have a public hearing, and a public record* State agencies and organizations may have statutory access to records MNCIS errors; private data miners

JUVENILE RECORDS DON’T DISAPPEAR

How many people in Minnesota have a criminal record?

A. 1 in 4 B. 1 in 12 C. 1 in 24 D. 1 in 32

According to the DOJ’s BJS, over 92 million individuals have a criminal history on file in state criminal history repositories. With about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population – estimated at about

• ne in three or four adults – has a criminal

record on file

ONE IN THREE

• 2,000,000

4,000,000 6,000,000 8,000,000 10,000,000 12,000,000 14,000,000 16,000,000 18,000,000 20,000,000

Grow rowth th of popul ulation ation wit ith fe felo lony y convi viction ctions, s, 1948-20 2010

Ex-Felons Total Felony Probation Total Parole Total Jail Total Prison

Thanks to Robert Stewart, U of M

Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex- Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

• 2,000,000

4,000,000 6,000,000 8,000,000 10,000,000 12,000,000 14,000,000 16,000,000 18,000,000 20,000,000 Ex-Felons Total Felony Probation Total Parole Total Jail Total Prison

Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex- Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

• 2,000,000

4,000,000 6,000,000 8,000,000 10,000,000 12,000,000 14,000,000 16,000,000 18,000,000 20,000,000 Ex-Felons Total Felony Probation Total Parole Total Jail Total Prison

Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex- Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

• 2,000,000

4,000,000 6,000,000 8,000,000 10,000,000 12,000,000 14,000,000 16,000,000 18,000,000 20,000,000 Ex-Felons Total Felony Probation Total Parole Total Jail Total Prison

Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex- Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

BCA MNCIS FBI

ERRORS IN RECORDS

SANCTIONS

COLLATERAL SANCTIONS: GETTING A LICENSE

 department of human services  department of health  board of behavioral health & therapy  board of barber & cosmetologist examiners  department of corrections  county community corrections  board of peace officer standards & training  board of accountancy  department of education  board of teaching  board of social work  board of dentistry  department of labor and industry  federal aviation commission  department of homeland security  pari-mutuel betting

CONSEQUENCES

According to a SHRM study conducted in 2012, approximately what percentage of employers are conducting criminal history reports on job applicants?

A. 32% B. 54% C. 78% D. 87%

BEYOND SANCTIONS

Have you ever been convicted of an offense? Have you ever been convicted of a felony? Have you ever been arrested? Are these questions generating useful answers?

WHAT ARE EMPLOYERS ASKING?

Wisconsin and Minnesota Entry-level positions Two teams of testers

CALL BACKS

CALL BACKS

RELEVANT LAWS

Many employers mistakenly believe that blanket policies offer protection from lawsuit and liability

Ban the Box Safe Hiring Fair Credit Reporting Act Title VII of the Civil Rights Act

PERTINENT LAWS

An employer may not inquire into or consider the criminal record of a job applicant until the applicant has been selected for an interview.

• Minn. Stat. 364.021

Image from Goodwill / Easter Seals

“BAN THE BOX”

For r violat ations ions that at occur ur in 20 2014 14: First violation = written warning If not remedied within 30 days, up to a $500 fine ($500 / mo) For r violat ations ions that at occur ur in 20 2015 15: For employers that employ 10 or fewer persons at a site, up to $100 for each violation ($100 / mo) For employers that employ 11 to 20 persons at a site, up to $500 for each violation ($500 / mo) For employers that employ more than 20 persons at one or more sites, up to $500 for each violation ($2,000 / mo)

Must obtain permission Must provide pre-adverse action notice – with a copy of the report! Must provide consumer reporting agency’s contact information

FCRA – THE PROCESS

12% 25% 63% 15% 27% 58% No, not at any time Yes, after the decision to hire or not hire has been made Yes, after the criminal background check is conducted, but before the decision to hire or not hire is made

2012 (n = 340) 2010 (n = 308)

Slide adapted from July 19, 2012 SHRM presentation titled: Background Checking: The Use of Criminal Background Checks in the Hiring Process

Do you allow job candidates, in certain circumstances, the

• pportunity to explain the results of their criminal background

check that might have an adverse effect on an employment decision?

 Kmart

• Paid a $3 million settlement after refusing to hire an individual

whose misdemeanor conviction fell outside of the seven year time frame imposed by the store. (No meaningful adverse action notice)

 Domino’s Pizza

• $2.5 million settlement after failing to provide copies of the reports

used to take adverse action; failing to provide a reasonable

• pportunity to respond or to correct inaccuracies in the report

 US Physical Therapy, Inc.

• $143,000 to 47 applicants + defense cost

 Bakery, Temp Agencies, and Background Check Company all hit with suit after man was fired due to a felony record that wasn’t his

RECENT FCRA SUITS

Title VII prohibits employment discrimination based on race, color, religion, sex, or national

• rigin.

EEOC guidelines are recommended policies to help employers establish fair and defensible screening practices consistent with Title VII of the Civil Rights Act.

EEOC: TITLE VII

 Cannot use arrest records alone  Cannot use blanket bans  Should engage the record

• Includes consideration of nature and severity, time since
• ffense, relationship to job, and rehabilitation

CIVIL RIGHTS ACT – THE SUBSTANCE

 A criminal background check that asks for a person’s entire criminal record is too broad.  A criminal background check that targets the risks in the job and finds conduct that relates to those risks is better.  When such a criminal record is identified, give the person an opportunity to explain circumstances or mistakes in the record before excluding him from a job.

RECOMMENDATIONS

 EEOC strongly discourages relying only on a record of an arrest. But, employers may make an employment decision based on the conduct underlying the arrest, if the conduct makes the person unfit for the position in question.  Note that for many public employment positions in Minnesota, consideration of non-convictions is prohibited.

BEWARE OF ARREST RECORDS

Employers should only consider convictions that are related to the job, and employers should have a time limit for considering old convictions. Convictions may be wrong: wrong person, expunged case, failure to update

LOOK CAREFULLY AT CONVICTION RECORDS

 Fashion a narrowly-tailored written policy and procedure:  Identify the essential job requirements;  Specify offenses that may demonstrate unfitness for job;  Determine the duration of exclusions;  Maintain individual assessment (i.e., consider age at time

• f offense, number of offenses, rehabilitation, work

history, etc.)

DEVELOP A FAIR POLICY

Document the policy’s rationale: Record the justification for the policy and procedures Keep a record of consultations and research considered in crafting the policy Train key staff in how to implement the policy and procedures

DEVELOP A FAIR POLICY

When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position and consistent with business necessity Keep criminal record information confidential – use it only for intended purposes.

PUT IT INTO PRACTICE

An investigation by the EEOC found reasonable cause to believe that Pepsi’s background check policy was a tool for discrimination Between 2006 and 2010, more than 300 black applicants were denied employment based on arrest records

PEPSI TO PAY $3.1 MILLION

 Criminal records may not be admitted if:  the position did not expose others to a greater risk of harm than that created by the employee’s general interaction with the public, or that created by employment in general;  the record had been sealed or pardoned; or  the record did not result in a criminal conviction.

SAFE HIRING

• Minn. Stat. § 181.981

WE ARE ALL CRIMINALS

www.weareallcriminals.com

Emily Baxter baxtere@crimeandjustice.org Josh Esmay esmayj@crimeandjustice.org

QUESTIONS?

NOTE: The content of this document is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking legal advice should contact an attorney.