March 21st, 2016
In mid-January, Josh* went on a job interview to be a sales associate at a GNC store in Manhattan. “It was the best interview I’ve ever had in my life,” said Josh, a smiling, 26-year-old black man, who is interested in poetry and horticulture. “Based on the interview, I thought I was a shoe-in.”
Josh never heard back, so a couple of weeks later, he called the woman who had interviewed him. He couldn’t get in contact with her, so he reached out to the person who had referred him to the job—a representative of an agency that helps find jobs for “hard-to-place” workers, including those who have been incarcerated.
“If it was up to [the interviewer], you would have had the job,” Josh remembers the representative telling him. “But she sent your name to corporate, and your record popped up.”
If corporate did a background check on Josh, they likely saw that he had been convicted of a felony.
Josh attends the program where I’m employed as a social worker, an alternative to incarceration for people charged with drug-related crimes. I’d been hearing stories like Josh’s from other people with criminal records who are seeking work through our program, and I asked Josh if he thought his experience was representative.
“Probably everyone here has gone through that in the past two months if they’ve been looking for work,” he told me. “It’s common.”
A screenshot from the GNC online hiring form, asking about any prior convictions in violation of NYC’s Fair Chance Act. The Influence obtained a further screenshot to verify that an exemption applied to certain “ban the box” states is not being applied to New York.
New York’s law and the wider “Ban the Box” movement
What GNC did may be common—despite all the good reasons for hiring formerly incarcerated people—but it’s also illegal. And experiences like Josh’s should be becoming a thing of the past, according the NYC Commission for Human Rights.
The Commission is responsible for enforcing New York City’s new Fair Chance Act, which pushes back the time when employers may inquire about a job applicant’s criminal history to later in the job application process. Passed in June 2015, the law went into effect in October 2015. (Even though New York state and city laws already extended protections against employment discrimination for people with criminal records, the City determined that such discrimination still occurred.)
The new law means that employers may only ask about an applicant’s criminal record after making a “conditional offer of employment.” If, at that point, they ask, and choose to withdraw the job offer based on an applicant’s criminal record, they must provide written explanation of exactly why they found “a direct relationship between the criminal record and the job,” or why the “criminal record creates an unreasonable risk.”
Here is an example of a form the Commission provides that employers “may” use. They must then give applicants three days to reply.
NYC’s Fair Chance Act is part of a broader “Ban the Box” movement across the country. It aims to curb employment discrimination against people who have a “criminal history”—a prejudice which punishes people twice over—by banning the job application “box” that asks if they’ve been convicted of a crime.
Nationwide, over 100 cities and counties have adopted variations of this policy in order to delay inquiries until later in the hiring process; 21 states, in nearly every region of the country, have also done so. According to the National Employment Law Project, ”momentum for the policy has grown exponentially, particularly in recent years.”
“Ban the Box’’ is actually just one component of New York’s Fair Chance Law, which employs a variety of different strategies to try to prevent discrimination” explains Nayantara Mehta, senior staff attorney for the National Employment Law Project.
Laws like New York’s Fair Chance Act are really good,” Mehta says. “They provide a framework for how employers can evaluate a person with a record. By providing really clear guidelines for employers to consider, it forces them to really think, ‘Is this record even relevant to the work?’ The goal is to get employers to see people with a criminal record as real people.”
Job applicants in other places around the country don’t enjoy such broad protections as in New York. Many laws, for example, only apply to public employers.
Emily Kaltenbach, senior director for the Drug Policy Alliance’s National Criminal Justice Reform Strategy, who also heads DPA’s New Mexico Office, says that the lack of restriction on private employers in places like New Mexico is “one of the biggest drawbacks.”
How to improve implementation?
The NYC Commission for Human Rights is currently doing a lot to increase awareness of the new law. According to its press secretary, Seth Hoy, the commission has reached millions of New Yorkers, informing them of their rights and obligations, including sending an email blast to roughly 80,000 small businesses across the city.
The Commission has also educated nearly 10,000 New Yorkers about “criminal history protections in employment” through about 300 free workshops. I had the chance to attend one of them.
In the training, we learned the specifics of the law, the requirements for employers, and the exceptions to the rule, such as jobs that Federal, State and/or local law require background checks for, like home health aids, firefighters, and the Orwellian-sounding “peace officers.”
In one explanation, the trainer used the example of someone with a drug conviction. “We use drug convictions a lot as an example,” she said, “because that’s often the reality.” Another factor, as Seth Hoy pointed out to me, is that “if a complainant suspects the employer may have taken an adverse employment action because he/she has a history of substance abuse, the complainant could also file a claim of disability discrimination.”
As this educational work continues, data has not yet been collected on how much more likely someone with a criminal record is to get a job under the new law. However, the NYC Commission on Human Rights filed over eight times more investigations into criminal history discrimination in 2015 than it did in 2014—100 new investigations filed in 2015, compared to 12 in 2014.
And the new law has already helped some people. Kingsley Rowe, for example, was one of New York University’s first hires under the new “Fair Chance” process. He “came out” publicly about his criminal record in an article in 2013, but that doesn’t mean he would want to disclose it on a job interview.
So when he applied for a position at NYU, he was relieved that he wasn’t asked about it. He interviewed three times. The position was offered to him. After it was formally offered, they gave him a questionnaire which asked if he had criminal history. He answered it honestly; they researched it, and told him he still had the job.
“It was a very dignified process,” says Rowe. “The fact that I didn’t have to answer the question until the job was offered to me took a lot of anxiety out of having to disclose my history. One thing that’s good about the law: If they rescind the offer, they have to answer six or seven vigorous points before they can… Those qualifications that they have to meet are pretty high. So it’s a process that adds dignity to the process of finding employment.”
The position he obtained in this way may be something of an exception, since it was a job as a re-entry program administrator in NYU’s prison education program—presumably an employer that would be particularly motivated to not discriminate against someone who had been incarcerated.
Rowe himself is also an exception, in that after being in prison for 10 years, from age 18 to 29, he was able to go on to get a master’s in social work at NYU. He explains to me that this is partly due to the fact that he went to prison at a time before the 1994 crime bill was signed into law by President Bill Clinton. This law made people incarcerated in state and federal prisons ineligible for student Pell Grants. Clinton signed it even though fewer than one percent of those who had received Pell Grants before the bill were prisoners.
“That crime bill was extremely catastrophic to the ability for many people to access educational activities, which is one of the only way to overcome the barriers from incarceration,” Rowe says. “When you wipe that out, there’s nothing for them to have for upward mobility. It’s like setting people up for failure. Like putting people in a rowboat with no paddles.”
“A rowboat with no paddles” is a good way to describe many people’s experiences after being released from prison. And a few days after NYC’s Fair Chance Act took effect, President Obama announced a range of plans intended to help certain formerly incarcerated citizens convicted of felonies get access to “paddles.”
One reform was in fact a pilot Pell Grant program to fund prison education. Obama also called on Congress to follow a growing number of states, cities and private companies that have decided to “ban the box” on job applications—and, in the meantime, to delay inquiries into criminal history until later in the hiring process for federal jobs.
Is it enough?
But some remain skeptical that these kinds of reforms will really give people who have been incarcerated a “fair chance.”
Journalist Steven Thrasher, for example, wrote a piece for The Guardian titled: “’Ban the box’ is a band-aid on a gaping wound that is mass imprisonment.” For one thing, he said, it doesn’t go far enough: Employers should ignore a criminal background completely, not just in the initial application process. How long do we want people to continue to suffer, he asked, after they have “served their time”?
Thrasher also brings up real-life, practical issues that the laws don’t necessarily address. For example, even if you’re not forced to divulge your criminal background, how are you meant to explain that 10-year gap on your résumé?
Speaking with him now, his view seems slightly more tempered. But still, like many of us who work with formerly incarcerated people, he believes that real solutions must address the race-based roots of the problem, including the school-to-prison pipeline and the laws and policing tactics that put people of color in prison in the first place, and ultimately address prison abolition and the need for reparations.
“It would take a different scale of creativity to figure out what can break the cycle,” Thrasher says.
In the meantime though, one small step in continuing to refine NYC’s Fair Chance Act will take place today, when the Commission on Human rights holds a public hearing to decide which amendments to add to the law.
One of the potential amendments addresses Thrasher’s question about résumé-gaps—a proposal that the law should “Explain what an employer should do if they inadvertently come to learn about an applicant’s criminal history prior to making a conditional offer.” Others clarify terms, defining, for example, what exactly “conditional offer” means.
One thing’s for sure: There is more work to be done.
Josh is responsible, smart, friendly, outgoing and hardworking—everything you might want in an employee. But his “record” is still preventing him from getting a job and moving on with his life.
Josh hasn’t let the barriers to entry stop his job search. He recently applied for a position at a 7-Eleven, where he worked before he was incarcerated. There was a request for a background check on the initial form. He left it blank, and is hoping that he’ll get a fair chance to be considered.
I notified the Human Rights Commission of these incidents. They stated that “GNC and 7-Eleven must follow the NYC Human Rights Law, as must all business/employers operating in NYC.” And they recommended that Josh report these violations—job applicants who believe a potential employer did not follow the Fair Chance Act are encouraged to call 311 and ask for the Commission on Human Rights. You can leave an anonymous tip, or you can file a complaint about what happened to you. (If the employer is found to have broken the law, you could recover lost wages or other damages and the employer may have to pay a fine.)
I also called both GNC and 7-Eleven to try to notify them directly about the laws that they are not in compliance with, as the Human Rights Commission workshop trainer suggested I do as a way to preemptively help other clients who may be applying to similar jobs.
I’ve yet to hear back.
*Name has been changed.
This article was edited at 12:30 pm EST on March 21 to reflect that we were able to reveal the names of GNC and 7-Eleven.
Sarah Beller is a social worker and writer whose work has appeared in publications including Salon, The Hairpin, Toast and Psychology Tomorrow. You can follow her on Twitter: @JulesBesch.