FINDING EMPLOYMENT WITH A CRIMINAL HISTORY: DO APPLICANTS HAVE ANY RIGHTS?

Transcription

1 FINDING EMPLOYMENT WITH A CRIMINAL HISTORY: DO APPLICANTS HAVE ANY RIGHTS? September 2015 A discussion among a diverse group of community stakeholders with the Atlanta District Office of the Equal Opportunity Employment Commission (EEOC) and private attorneys about the use of criminal history information by private employers in Georgia August 13, 2015 *Electronic Copy*

2 INTRODUCTION Since 1986, the Georgia Justice Project (GJP) has represented lowincome individuals involved in the criminal justice system in the Metropolitan Atlanta area. Through the Coming Home Program, developed in 2008, GJP provides legal representation to Georgians denied opportunities because of a criminal record, educates stakeholders about the negative impact of having a criminal record, and advocates for positive legislative and administrative reforms. On August 13, 2015, GJP hosted an event to bring together a diverse group of community stakeholders, including representatives from local workforce development organizations and non-profits focused on employment. The event focused on the use of criminal history information by private employers to deny employment opportunities for people with criminal histories. The event featured staff from the Atlanta District Office of the Equal Employment Opportunity Commission (EEOC) as well as private attorneys specializing in civil actions against private companies in violation of federal and state laws. Despite recent policy reforms in Georgia that reduce barriers to employment and improve the accuracy of information provided to employers, thousands of Georgians continue to be unfairly denied employment. Most applicants with a criminal history in Georgia do not get any further in the hiring process than submitting the application. Georgia s new ban the box policy id a positive step in the right direction, but it does not extend to private employers. There are some state and federal protections; however, many applicants and service-providers are unaware of these rights nor how to enforce them and the local offices intended to safeguard state and federal protections state that they do not hear enough of these types of cases. Georgia Justice Project Staff Douglas Ammar, Esq. Executive Director Julie Smith, LMSW Chief Operating Officer Lori Glidewell Development Director Marissa McCall Dodson, Esq. Policy Director Brenda Smeeton, Esq. Criminal Records Program Director Larry Korn, Esq. Attorney Molly Scott, Esq. Coordinator of Legal Volunteers Katherine Langley Drozek Paralegal Ben Jernigan Davidson Impact Fellow Christi Moore Davidson Impact Fellow Shane Dershimer, MSW Prison Support Coordinator Atoyia Johnson, LMSW Employment Support Coordinator Shannon DeMyers Development Associate Genny Drash Bookkeeper Click here for GJP s 2015 Policy Agenda 1

3 Panelists Darrell Graham Deputy Director, Atlanta District Office, Equal Opportunity Employment Commission THE PURPOSE The event was designed to accomplish four goals: 1) to develop a more enhanced understanding of the legal rights and protections for job applicants with a criminal history in Georgia, 2) to increase the ability of service providers to connect program participants to appropriate resources, 3) to promote best practices for engaging employers on these issues, and 4) to encourage interested stakeholders to engage in advocacy efforts that improve the laws in Georgia. GJP Policy Director Marissa McCall Dodson welcomes forum participants THE PARTICIPANTS Attendance to the forum was by invitation only, and invitations were extended to representatives from local workforce development organizations, non-profits focused on employment, the Atlanta Business League and the Metro Chamber of Commerce, as well as a few employment attorneys. Steven Wagner Trial Attorney, Atlanta District Office, Equal Opportunity Employment Commission Jeff Sand Attorney, The Weiner Law Firm LLC Craig Bertschi Partner and Attorney, McRae Bertschi LLC Invited Organizations 9 to 5 Atlanta ABLE The Annie E. Casey Foundation Atlanta Business League Atlanta CareerRise Atlanta Center for Self-Sufficiency Atlanta s John Marshall Law School Atlanta Legal Aid Atlanta Technical College Atlanta Workforce Development Agency Center for Working Families Central Georgia Technical College Central Outreach and Advocacy Center Crossroads Community Ministries First Step Staffing Georgia Appleseed Center for Law and Justice Georgia Center for Opportunity Georgia Job Tips Georgia Law Center Georgia Legal Services Georgia NAACP Georgia Stand-Up Georgia Works! Goodwill Industries of Middle Georgia Governor s Office of Transition, Support, and Reentry Legal Action Center s National H.I.R.E. Network Metro Atlanta Chamber of Commerce National Center for Civil and Human Rights New Hope Enterprises New Life Second Chance Outreach, Inc. Racial Justice Action Center STAND, Inc. Urban League of Greater Atlanta Women on the Rise Year Up 2

4 Barriers to Employment for Georgians with Criminal Histories GJP Policy Director Marissa McCall Dodson, opened the forum by providing context and background on the issues facing Georgians with criminal records. As many as 1 in 3 Georgians have a criminal record and each year the state spends over $1 billion taxpayer dollars on over half a million Georgians who are under correctional control. Moreover, about 95% of those who are incarcerated will be released and nearly 1 in 3 is expected to return within three years. Ms. Dodson explained to participants that the overwhelming research indicates that the most important predictor of recidivism is the ability to secure stable employment. Yet, Georgia still allows employers to deny applicants on the basis of an arrest, even when there was no conviction; in addition, any felony conviction, as well as first offender exonerations, can be used to deny an occupational license. Combined with growing employer use of criminal background checks in the hiring process and the proliferation of the commercial background reporting industry, Georgia remains one of the hardest states in the country for people with criminal records to secure employment. GJP Policy Director Marissa McCall Dodson tells participants about recent changes in Georgia reentry policy. HIGHLIGHT #1: 1 in 3 Georgians have a criminal history and many face significant barriers to employment and other opportunities. Moreover, Ms. Dodson continued, in addition to being counterproductive to successful reintegration, these policies also have a racially disparate impact on African-Americans and Latinos, who are disproportionately more likely to have an arrest or a conviction, particularly for non-violent drug offenses. These disparities, of course, also translate into disparities in employment opportunities. Ms. Dodson recalled a finding from a study by researcher Devah Pager who determined that a white applicant with a criminal record is more likely to receive a callback for an interview than a black applicant without a criminal record. While there is still much work to be done in Georgia, Ms. Dodson did provide an update on the recent progress in the last several years, which includes the new record restriction (expungement) law, liability protection for employers and the implementation of Ban the Box policies by the State of Georgia, several local governments, and even some private employers. HIGHLIGHT #2: Policies preventing employment for those with criminal records disproportionately impact African- Americans and Latinos. 3

5 Federal Protections for Georgians with Criminal Histories Panelists listen as EEOC Atlanta District Office Deputy Director Darrell Graham explains the EEOC s approach to Title VII and employment discrimination cases. Title VII of the Civil Rights Act of Federal case law establishes that due to the negative impact on applicants of color, Title VII of the Civil Rights Act of 1964 prohibits employers from using blanket bans to screen job applicants with criminal records. Instead, the rulings hold that an employer must perform an individualized assessment and find a justified business necessity before denying an applicant because of a criminal record. Based on the case law, in 1987 and 1990 the EEOC issued policy guidelines (the Guidelines) to employers stating that in order to comply with Title VII when a job applicant has a criminal record, the employer must consider whether there is a justifiable business necessity to deny the applicant based on: 1) the nature and the gravity of the offense or conduct, 2) the time that has passed since the offense, conduct and/or completion of the sentence, and 3) the nature of the job held or sought. The EEOC updated and reissued the Guidelines in 2012 in response to significant technological advances making criminal records information more widely available and more often considered in making hiring decisions. Deputy Director Darrell Graham of the Atlanta District Office of the Equal Opportunity Employment Commission (EEOC) shared with participants that employer use of criminal histories in the hiring process remains a priority for the EEOC. He also said that while confidentiality prevents the EEOC from disclosing interactions with employers unless there is a public lawsuit, the orgians with Criminal Histories Atlanta District Office has made progress to positively influence the hiring policies of local employers behind the scenes. Mr. Graham also said that there are valid employer concerns and that he encourages employers to consider second chance versus security when making hiring decisions on the basis of a criminal history. 4

6 Federal Protections for Georgians with Criminal Histories Mr. Graham told participants that the EEOC does not receive a large number of complaints on this issue in Georgia and strongly encouraged individuals who think they have been discriminated against on the basis of a criminal history to come to the EEOC and file a charge. While the EEOC is anecdotally aware of the issue, he explained, we need a large volume of cases to implement meaningful change. Mr. Graham encouraged participants to refer people to the EEOC to file a charge when they believe an employer has unfairly used his or her criminal history to deny employment. HIGHLIGHT #3: EEOC encourages Georgians to bring charges of unfair employment discrimination on the basis of criminal histories. Responding to questions from participants, Mr. Graham maintained that EEOC investigators are trained to listen to individuals who complain pro se, and that complainants need not use specific language to trigger a Title VII investigation. For example, an individual does not have to explicitly allege racial discrimination, but can simply state that he or she believes there was unfair discrimination based on his or her criminal history. Mr. Graham told participants that the office staff has been trained to recognize these types of complaints and that the charge will be investigated to determine whether the employer s use of criminal history information has a disparate impact on racial minorities. It was also made clear to participants that individuals seeking employment should always answer questions about their criminal histories truthfully, and keep detailed records in case an investigation becomes necessary. Additionally, Mr. Graham explained that once a complaint is filed, EEOC investigators and attorneys will not investigate all potential violations by the employer, but rather only the violation alleged in the complaint. Several participants mentioned concerns with proving racial discrimination in light of employers with relatively high rates of African Americans and/or Latinos. Mr. Graham said that even if the racial composition of a workforce appears racially balanced, an employer s use of a criminal record can still be found to be a Title VII violation. Mr. Steven Wagner, Trial Attorney for the EEOC, further explained that these hiring policies have the most impact on male applicants of color, and thus it is not enough for an employer to only prove they hire people of color, there can be a violation of Title VII if there HIGHLIGHT #4: Complainants do not need to use specific language when bringing a charge against an employer. It is sufficient to allege an improper use of criminal records during the hiring process. 5

7 Federal Protections for Georgians with Criminal Histories Panelist Craig Bertschi explains the rights of job applicants under the federal Fair Credit Reporting Act (FCRA). are not enough male applicants of color hired by the company. Additionally, when asked about whether white applicants can file a claim related to an employer s use of criminal history information in the hiring process Mr. Graham said that if the policy resulted in a disparate impact on white applicants or employees, the employer could be in violation of Title VII. Federal Fair Credit Reporting Act (FCRA). Employment attorney Craig Bertschi of McRae Bertschi LLC spoke about the protections afforded job seekers under the federal Fair Credit Reporting Act (FCRA). FCRA regulates consumer reporting agencies (CRAs), which include companies that perform applicant background checks on behalf of employers. Mr. Bertschi explained that FCRA precludes CRAs from reporting arrests that did not lead to conviction after seven years and guarantees the following procedural rights to all job applicants: 1) applicants must authorize a background check; 2) applicants must be provided a pre-adverse action notice if an employer plans to make a hiring decision based on information obtained from a CRA; 3) the employer must wait at least five days before taking an adverse action; 4) during the five days, applicants can obtain and provide documentation to dispute the accuracy of the background information; and 5) if the employer decides to take an adverse action, it must provide the applicant with a post-adverse action notice that explains their rights under FCRA. Despite these guarantees, Mr. Berstchi highlighted some serious shortcomings to FCRA s protections of applicant rights. First, the FCRA protections apply only to information obtained from a CRA; if an employer denies employment because of criminal history information it obtains directly, the applicant does not have a FCRA claim. FCRA does not guarantee job seekers any substantive rights when they are denied a job because of a criminal history, which means that job applicants do not have a right to the job or damages if they are denied because of accurate information reported to an employer. Finally, while many other states limit how long CRAs can report convictions, there is no such time limit in Georgia. HIGHLIGHT #5: The Fair Credit Reporting Act requires certain procedures when employers use commercial background reports throughout the hiring process. HIGHLIGHT #6: While some states prohibit the reporting of convictions after seven years, in Georgia convictions can always be reported by private background companies. 6

8 Federal Protections for Georgians with Criminal Histories Bertschi urged participants working with job seekers to make sure applicants know and protect their rights, and to get records restricted/expunged as fully as state law allows. Job seekers should also review their consumer reports and their GCIC report annually to ensure all information that could be reported to an employer is accurate. When disputing information on a consumer report, Mr. Bertschi explained than an individual should do so in writing, be specific, provide documentation, and send notice to the furnisher of the information. HIGHLIGHT #7: Job seekers should protect their rights: review consumer reports, file complaints in writing, and collect documentation to support potential complaints against employers. Due to the pervasive use of CRAs by employers, and because CRAs are often based offshore and operate with little oversight, state legislation may be the most effective means of addressing the shortcomings of FCRA. Specifically, Bertschi suggested that Georgia follow the examples set by states like Texas and New Mexico that impose a time limit on the reporting of convictions. The law should also limit CRA reporting in Georgia so that it is consistent with what can be reported by the Georgia Crime Information Center the state repository for criminal history information. HIGHLIGHT #8: State legislation is needed to improve the reporting of private companies. 7

9 State Protections for Georgians STATE with Criminal & LOCAL Histories EFFORTS Employment attorney Jeff Sand of the Weiner Law Firm LLC informed participants about the intersection of FCRA with Georgia law. Mr. Sand began by explaining that FCRA s accuracy requirements for CRAs are insufficient in Georgia. Under FCRA, CRAs must either provide contemporaneous notice to applicants when adverse information is reported to a third party, or establish strict procedures to ensure public record information is complete and up to date. CRAs often select the former as the easier option, and therefore have no requirement to ensure that the information they release to employers is accurate and/or has not been restricted or sealed. This year the Georgia General Assembly amended the Fair Business Practices Act (FBPA) to mirror the language in FCRA, and require CRAs to either provide contemporaneous notice to the consumer or maintain strict procedures to ensure accuracy. Mr. Sand explained that this is good news for job applicants in Georgia because the FBPA allows for treble damages in cases of noncompliance by CRAs. HIGHLIGHT #9: There is a major loophole in the law that allows private background companies to avoid accuracy requirements if the companies provide contemporaneous notice to applicants when reporting negative information to employers. Mr. Sand also highlighted Georgia s unique First Offender Act (FOA) which gives judges the discretion to exonerate certain individuals who accept responsibility for their actions and successfully complete their sentences. When the person is exonerated, the law declares there is no conviction and the record of the case is sealed from the individual s official criminal history. Under the law, therefore, a successful first offender does not have a conviction and thus the information cannot be reported by CRAs after seven years. HIGHLIGHT #10: First Offender exonerations in Georgia cannot be reported by private background companies after seven years. Mr. Sand also discussed the importance of the new record restriction law in Georgia. Under the old law, even after someone completed the restriction (expungement) process, records remained publicly available at the courthouse and the jail and thus reported by CRAs. Under the new law, an individual can seal access to all public records of the case, which means that once there are no public records of the case, an individual can dispute the accuracy of the CRA report. It is vital, Mr. Sand urged, that individuals ensure their record is properly restricted at courthouses and jails. 8

10 KEY TAKEAWAYS The panelists and participants highlighted the need for three major points of action for workforce development agencies and direct service providers: Action Item #1: People with criminal histories must be prepared for job market success by ensuring they are informed of their rights under federal and state law and they know to maintain documentation, either of record restriction/sealing or of their experiences during the hiring policy. Action Item #2: People who believe they have been discriminated against on the basis of his or her criminal history should be encouraged to file charges with the EEOC. A large complaint volume has the potential to demonstrate the extent of the problem to the EEOC and to compel employers to adopt fair hiring practices. Action Item #3: People with criminal histories and other interested stakeholders must increase advocacy and lobbying efforts to improve the accuracy of private background reports provided to employers in Georgia and to prevent unfair employment discrimination n against people with criminal histories. 9