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

BAN the BOX and beyond Emily Baxter in context and in practice Funding provided by the Emma B. Howe Memorial Foundation of The Council on The Minneapolis Foundation and the Jay and Rose Phillips Foundation Crime and Justice

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

POP QUIZ!  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

 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. 2 nd  B. 8 th  C. 23 rd  D. 48 th

Source: The Sentencing Project ’ s Trends in US Corrections

ACLU TRACKED MPLS MJ DISPARITIES  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 of whites, 76% were of Blacks. Blacks comprise 18.6% of the Minneapolis population.  Black arrests increased by 47%; white arrests decreased by 30%.

DISPARITIES START EARLY Source: The Minneapolis Foundation ’ s 2012 OneMinneapolis Report

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23  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

JUVENILE RECORDS DON ’ T DISAPPEAR  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

 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

ONE IN THREE  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 one in three or four adults – has a criminal record on file

Grow rowth th of popul ulation ation wit ith fe felo lony y convi viction ctions, s, 1948-20 2010 20,000,000 18,000,000 16,000,000 14,000,000 12,000,000 10,000,000 Ex-Felons 8,000,000 Total Felony Probation 6,000,000 Total Parole 4,000,000 Total Jail 2,000,000 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.

20,000,000 18,000,000 16,000,000 14,000,000 12,000,000 10,000,000 Ex-Felons 8,000,000 Total Felony Probation 6,000,000 Total Parole 4,000,000 Total Jail 2,000,000 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.

20,000,000 18,000,000 16,000,000 14,000,000 12,000,000 10,000,000 Ex-Felons 8,000,000 Total Felony Probation 6,000,000 Total Parole 4,000,000 Total Jail 2,000,000 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.

20,000,000 18,000,000 16,000,000 14,000,000 12,000,000 10,000,000 Ex-Felons 8,000,000 Total Felony Probation 6,000,000 Total Parole 4,000,000 Total Jail 2,000,000 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.

ERRORS IN RECORDS  BCA  MNCIS  FBI

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

BEYOND SANCTIONS  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%

WHAT ARE EMPLOYERS ASKING?  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?

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

CALL BACKS

RELEVANT LAWS

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

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

“ BAN THE BOX ” 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

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)

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

Do you allow job candidates, in certain circumstances, the opportunity to explain the results of their criminal background check that might have an adverse effect on an employment decision? 58% Yes, after the criminal background check is conducted, but before the decision to hire or not hire is made 63% 27% Yes, after the decision to hire or not hire has been made 25% 2012 (n = 340) 15% No, not at any time 2010 (n = 308) 12% Slide adapted from July 19, 2012 SHRM presentation titled: Background Checking: The Use of Criminal Background Checks in the Hiring Process

RECENT FCRA SUITS  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 opportunity 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

EEOC: TITLE VII  Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.  EEOC guidelines are recommended policies to help employers establish fair and defensible screening practices consistent with Title VII of the Civil Rights Act.

CIVIL RIGHTS ACT – THE SUBSTANCE  Cannot use arrest records alone  Cannot use blanket bans  Should engage the record  Includes consideration of nature and severity, time since offense, relationship to job, and rehabilitation

RECOMMENDATIONS  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.