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A man of conviction, on criminal convictions

June 4th, 2015  |  Lisa Milam

By Lisa Milam-Perez, J.D.

I love conferences. I absolutely geek out at them. It’s like being back at school, but without the homework, and taking only the classes that you want to. Plus, you get to meet some nice people.

A few weeks ago, while attending the Minnesota CLE Upper Midwest Employment Law Institute, I broke bread with a finance attorney from North Dakota. He was only there for the CLE requirements, he confessed, but he was finding this employment stuff fascinating. Could this conservative gent (“Obama lies about everything,” he warned) and this unabashed liberal find common cause over the course of the half hour we’d spend together by dint of fate and banquet-style luncheon seating?

As it turns out, we agreed more than not—most passionately about the troubling rise in income inequality and the generally crappy state of wages these days for too many American workers. I thought of him yesterday, in fact, when I came upon the New York Times’ survey which found there was urgent concern about income inequality across the political spectrum. But we had a clear difference of opinion (albeit a civil, reasoned one) on this snowballing issue of criminal background checks.

My lunch mate argued that employers should be able to engage in unfettered due diligence in staffing their business—and to freely refrain from hiring criminals for safety’s sake and to avoid the liability risks. He was a mighty, if friendly foe. But I steeled myself and thought back to when, at this very conference three years earlier, the EEOC’s Chai Feldblum and Victoria Lipnic sat before an enormous crowd of skeptical HR types, defending the agency’s just-released update to its guidance on the use of criminal history in employment decisions.

I remembered the “due process” rationale behind the individualized assessment requirement (it had been quite a sticking point for employers): that applicants should be afforded notice and an opportunity to explain any adverse information in their records. I recalled the Commissioners urging attendees that, rather than reject out-of-hand those prospects with criminal convictions, they should consider the nature of the past offense, the particular position being filled, and the importance of taking into account the amount of time elapsed since an offense was committed, given evidence of its inverse correlation to recidivism rates.

But mostly, I remembered Lipnic—a Republican—speaking earnestly of the social implications. “I understand you may be looking at thousands of applicants, and you may have a system in place that is going to knock them out of the blocks right away. But if that’s the process we have, then people with criminal backgrounds will never be able to get a job,” Lipnic told the audience at the time. “Do we really expect that people who have been incarcerated should never have an employment opportunity again?”

Would that I was able to confer with my lunch mate with such eloquence; we might not have parted ways with a “pleasure to meet you” and an agreement to disagree.

The next day, I sat hoping that my North Dakota friend was somewhere in the audience listening to the EEOC’s Peggy Mastroianni during the morning plenary session. As she discussed the agency’s enforcement focus on discrimination in recruitment and hiring, she boasted that the 2012 guidance had “transformed the way employers look at criminal records.” According to one survey, she told attendees, 88 percent of employers are following the guidance, and 64 percent are conducting individualized assessments rather than issuing blanket restrictions on hiring applicants with criminal records.

“People are realizing that it’s very easy to get a criminal record in the United States. And we are becoming aware of the economic impact of mass incarceration. To have a huge segment of our population out of the workforce doesn’t make sense economically.” Did you hear that, Mr. North Dakota Finance Lawyer Man?

Meanwhile, Mastroianni added, “ban the box” has gone viral. The phrase refers to state laws prohibiting public employers from including, on job applications, checkboxes asking applicants if they have criminal records, along with voluntary policies exercising such restraint by private employers. Target, Walmart—even Koch Industries—have “banned the box.” Seventeen states have done so too, and more than 100 municipalities. (In six of those states and a number of cities, the measures cover private-sector employers too.)

The federal government could well be next. Last month, Sens. Sherrod Brown (D-Ohio) and Cory Booker (D-NJ), along with a sizeable number of their Democratic Senate colleagues, sent President Obama a letter urging him to ban the box for federal agencies and government contractors. Federal “ban the box” legislation has been introduced in the past to no avail. However, an executive order impacting federal contractors would reach a critical mass of the nation’s private employers. And it would no doubt further fuel this burgeoning movement.

Will I be sitting in a conference session about a newly enacted federal ban-the-box statute at the Minnesota CLE next year? Not likely, given Washington’s current political makeup. But federal policy, state law, employer practices, and indeed, public opinion on the issue are clearly changing. So at least if I run across my lunch mate next year, we may find even more upon which we can agree.