Banning the Box

A new state law aiming to help those with a criminal record rejoin society is changing how companies hire

Back Longreads May 29, 2018 By Steven Yoder

Nine years after the recession drove many tradespeople out of the business, the dearth of skilled construction workers in Northern California seems as permanent as a concrete piling.

“We’re definitely feeling it,” says Brent Perkins, human resource manager at Clark Pacific, which creates fabricated building systems with plants in West Sacramento and Woodland. “Tilt-up, cast-in-place, framing, rough framing, finish carpentry — there’s a big gap.”

“We’ve found a great workforce with people who had a small bump in the road and need that one chance.” Brent Perkins, human resource manager, Clark Pacific

About six years ago, Clark Pacific started hiring graduates of an apprenticeship program run by Northern California Construction Training, a nonprofit that teaches building skills to ex-offenders and others. Over six years, Perkins estimates that the company has hired about 75 people with a criminal record. A handful have moved up from production roles into lead, specialist and foreman jobs. None of those they’ve hired has reoffended on the job.

“We’ve found a great workforce with people who had a small bump in the road and need that one chance,” Perkins says.   

Giving ex-offenders a better chance at reintegration is behind the California Fair Chance Act, which took effect in January. A wealth of research shows that having a job is the most important factor in cutting recidivism rates. With exceptions for a few types of jobs, the new law forbids businesses with five or more employees from asking applicants about criminal history until late in the hiring process — which could mean big changes in how many employers hire.

A Second Chance

Ashley Volkerts’ earliest memories involve substance abuse. Her parents, who had drug and alcohol problems, let her try her first beer at age 4 and a double shot of tequila at age 8, she says. For her 12th birthday, her mother gave her a pipe loaded with pot. She continued to use as an adult and ultimately got into small-time dealing with an ex-husband.

After four stints in jail and ongoing attempts to get clean, Volkerts joined Alcoholics Anonymous last March and has been clean for over a year. But she says getting a job has been just as instrumental to making changes as treatment.

Last October, she was hired at a restaurant in Loomis and has since advanced to manager. “A job gives you a purpose — you have to dress up and show up,” she says. You won’t hear her complain about getting emergency calls to come in for a shift. “It’s great to be depended on. I’m the one who gets called when someone doesn’t show up. I love it,” she says. “Had my employer gone with the person with no criminal record, they wouldn’t have gotten someone who gives great customer service and who totally has the back of the company like I do.”

Titan Gilroy, CEO and owner of Rocklin-based Titans of CNC, says he sees a similar kind of dedication from the employees he’s hired, despite them having a record.

“People are different: There are those who need to stay in prison, and there’s a percentage who aren’t used to hard work. And there’s a big percentage that are so sincere in their effort that they make the best employees. … Employers should look at where [the applicant] is going, not where he’s been — how he makes eye contact, how he shakes a hand. When [employers] do that, they’ll get extreme loyalty,” he says. (Gilroy himself spent time in prison before founding his company in 2005.)

“I’ve seen young people who give up after being out and not being able to find a job.” Esteban Nuñez, Sacramento coordinator, Anti-Recidivism Coaltion

Beyond the potential qualities of ex-inmate hires, state and local governments are looking to financially incentivize companies to be more open-minded. Under the federal Work Opportunity Tax Credit, employers who hire and retain people who have significant employment barriers, including convictions, can get up to $9,600 in federal credits. California’s New Employment Credit program targets businesses in areas of high poverty and unemployment by offering tax credits to employers who pay people with a previous felony conviction over 150 percent of the state minimum wage for full-time work — the portion beyond the 150 percent threshold up to a maximum of 350 percent is eligible for a credit. And a joint federal and state effort, the Fidelity Bonding Program, provides free bonding insurance for employers who hire at-risk applicants, including those with a criminal record.

There’s a reason the government incentivizes employing this group. A number of studies support the importance of jobs in decreasing recidivism — the rate at which those with a record reoffend. More than one in four California adults has an arrest or conviction record, according to calculations by the National Employment Law Project using data from a federal survey of state criminal history databases. All but 4 percent of those in California’s prison system will eventually be released, says Milo Fitch of the California Prison Industry Authority. In a 2011 study, employed ex-offenders were half as likely as those without jobs to be re-arrested by about 20 months after their release from prison. Jake Meehan, Northern California Construction Training’s vice president, says that the reoffense rate for people who go through the NCCT program is about 10 percent, compared with a statewide figure of 46 percent. A 2014 study found that offenders in the state prison system who get career technical education through CALPIA while they’re still behind bars have a 7 percent recidivism rate once released.

In part that’s because having a job creates a positive peer support group of people who aren’t engaging in criminal activity, says Marc Nigel, director of alternative education at Sacramento County Office of Education’s adult re-entry programs.  

And a legitimate source of money matters too: Those who serve time are often loaded with heavy financial burdens the minute they’re set free. (For example, at least one in five prisoners owe child support payments, which keep accruing while they’re behind bars.) When job opportunities decrease further upon release, former inmates can see returning to crime as their only viable option.“I’ve seen young people who give up after being out and not being able to find a job,” says Esteban Nuñez of the nonprofit Anti-Recidivism Coalition’s Sacramento office. “They’re couch surfing and finally say, ‘I can’t do this anymore — I have to go back to what I know.”

Keeping them from returning to that lifestyle saves taxpayers money: Incarcerating a prisoner costs about $71,000 a year in a state prison system that has about 30 percent more inmates than it was designed to hold, according to April figures from the state.

“[When they get a job], all of a sudden you’ve got people paying taxes instead of the system sustaining them,” says Leo McFarland, president and CEO of Volunteers of America Northern California and Northern Nevada and member of Comstock’s editorial board. His organization runs a re-entry program for ex-offenders in Sacramento.

THE NEW (AND OLD) RULES OF HIRING

As of January, California’s new law prohibits companies from asking about a criminal record until after making a conditional offer of employment. That makes it one of the strongest ban-the-box laws out there, says Beth Avery of the National Employment Law Project’s Berkeley office.

If an employer ultimately finds the applicant has a criminal history, the company still has to make an “individualized assessment” of whether the conviction directly affects the potential hire’s ability to do the work. To exclude someone, the hiring manager has to link the duties of the position to the offense — both its severity and how long ago it happened.

Kabira Stokes is CEO of Los Angeles-based Homeboy Recycling, a social enterprise business that employs people who have a tough time getting jobs. She says that given the sensitive data her company handles in recycling, she doesn’t hire anyone with an identity-theft conviction.

If someone was convicted for fraud two years ago, an employer could legitimately keep them from a bookkeeping position — that’s a clear-cut case, says Benjamin Ebbink, a labor and employment attorney at Fisher Phillips in Sacramento. But if an applicant for that same role had a DUI offense that happened 20 years ago, the decision would be harder, he says. “It may be good to look at every position and give some thought to the types of offenses that would be an issue,” he says.

Additional provisions of the legislation cover what must happen if a company rejects an applicant with a record. The firm has to notify the applicant in writing and spell out their options for contesting the decision, but isn’t required to explain how the conviction made the applicant unsuitable for the job — though experts say companies still should document internally why they made the decision in case of a complaint.

What Companies Should Do Now to Avoid Legal Risk

All of that points to the importance of a structured hiring process and well-trained staff, say employment lawyers. All steps in the interview and assessment process should be in writing, says Paul Huston, an employment attorney at Mintz Levin. Everyone involved needs to know that questions about criminal records are off limits before a conditional offer is made. Many employers are using law firms to create compliant policies and standard forms like sample conditional offers and sample revocations of conditional offers, he says.

Employers who ignore the law could find themselves in trouble. Avery says that complaints will be handled like any other employment matter; after a complaint is filed, the state Department of Fair Employment and Housing investigates it and attempts to mediate. If that doesn’t work, the agency or the plaintiff can prosecute the case in court.

So far, few cases under the new law have been pursued, says Ebbink. Most complaints have involved egregious violations, like job postings stating that the employer won’t consider applicants with a criminal history.

All of those guardrails aim both to help a group of people who often are distrusted and to give companies a new pool of workers. Beyond that, NCCT’s Meehan thinks employers should let go of popular media images of people who have done time and consider them as individuals. “If they’ve got a bagful of certificates and letters of recommendation, that’s who they are today,” he says. 

Comments

Daniel Jacuzzi (not verified)June 1, 2018 - 10:22am

If the State would truly like to help the employment of individuals with a prior criminal record then the State needs to amend the law to provide a level of immunity from liability from an action of the employee. After all the State has deemed the prior criminal to have served his/her time and has now been returned to society. To hold a future employer liable for the criminal conduct of that person is neither fair nor appropriate. As an employer I would like to be able to provide people with a "second chance" but remain concerned that in doing so I am creating a risk for my company. The true solution is to not hold an employer liable for the criminal actions of an employee. By providing that protection an employer would know that they could offer individuals a "second chance" without taking on the risk of a lawsuit should that employee commit a new crime while in their employ.

Visitor (not verified)June 19, 2018 - 6:17pm

The "real" solution is for CA to give a true "expungement" mechanisim to offer a "sealed" criminal record(s) for those who truly want to reintegrate back into society- if an employers, etc cannot see a criminal record, because the "criminal" has more or less redeemed themselves by doing X and X...then its a moot point.

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