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Collateral Consequences of Conviction: Barriers to Employment
Photo by Markus Spiske via Unsplash
Introduction
A criminal conviction stays with you forever and can have drastic impacts on the rest of your life. Nearly one-third of American adults have a criminal record, meaning a significant portion of adults in our country have to navigate life with this stigma. It is significantly more difficult to secure employment with a criminal record – background checks weed out applicants with convictions, and many professional licensure requirements bar anyone with a criminal record from applying. This is especially problematic because maintaining a job is one of the most critical aspects of preventing recidivism. How do we expect formerly incarcerated individuals to maintain a job if society erects barriers to finding employment in the first place?
In this piece, I will first explore the general difficulties those with criminal records face when applying for jobs. Then, I will examine barriers to professional licensure for those with convictions. Last, I will propose some methods for solving these issues.
As a preliminary note, it is essential to note the racial dimensions of this issue. As of 2018, Black Americans make up only 12.6% of the U.S. population, but account for 27% of all arrests; the racism ingrained in our criminal justice system causes Black Americans to be disproportionately targeted in law enforcement efforts. This means the issues discussed here have a disproportionate impact on Black communities. Accordingly, we must consider other necessary policy changes to lessen these disparities in conjunction with reducing the collateral consequences of convictions.
Difficulties in Job Applications
Formerly incarcerated individuals often have to disclose records on job applications or are asked to consent to a background check, which makes it difficult to secure a job. Federal law doesn’t prohibit employers from asking about criminal backgrounds; however, they cannot use criminal history to discriminate based on a characteristic protected by Title VII. This means that employers can’t treat those with similar criminal records differently based on things like race or sex. However, there is no limit to stop employers from simply treating everyone with a criminal record negatively – they do not have to hire any of them.
As of 2018, 95% of employers conducted some type of background screening for part or full-time positions. This includes about 48% of employers who directly ask applicants about their criminal backgrounds on the application form. Sometimes these measures are taken for legitimate reasons, such asif the position involves working with vulnerable populations, but often employers use screenings just to weed out those who have criminal records. The weeding out is done both before and after the application is submitted. Pre-application, many potential applicants are deterred from even filling out the form if they know they have to answer about their criminal background or have to consent to a background check. Post-application, the presence of a criminal record can decrease the likelihood of a callback for a job interview on average by upwards of 60%. There is also a racial disparity to this statistic – White applicants with records see decreases in callbacks of about 50%, while Black applicants experience a decrease of almost two-thirds. These statistics alone show how difficult it can be for those with criminal records to even get their foot in the door, let alone be offered a job.
Even if someone is able to secure employment, it will likely be a lower paying or part-time job. Individuals who get out of prison when they are 20 to 29 years old begin their working lives earning about $7,100 less annually than their counterparts without convictions. As time goes on, this can increase to earning $20,000 less annually than their peers without records. Even in these low-paying jobs, having a conviction makes an individual less likely to be considered for promotions and raises. There are national implications to these issues – it’s estimated that there is a loss of $78 billion to $87 billion to the economy every year as a direct result of those with convictions being unemployed or underemployed. These are issues that we must confront as a society because they affect all of us.
Barriers to Professional Licensure
Additional difficulties exist if a formerly incarcerated individual desires to go into a field that requires occupational licensure, including many fields which individuals can work in while in prison. A plethora of jobs require licenses, including barbers, land surveyors, and florists – many of these jobs are jobs that people can have while they are in prison. States restrict the availability of licenses to those with criminal records – in total, there are about 27,000 rules across the country that prohibit or limit the availability of licenses to those with records. This number can be further broken down into the types of restrictions: 12,000 disqualify anyone with a felony on their record and 6,000 disquality anyone with a misdemeanor on their record. About 19,000 of these exclusions are permanent, and over 11,000 are mandatory, meaning that the licensing board is unable to consider any mitigating circumstances and must deny the individual a license.
Licensure prohibitions fail to account for any rehabilitation that has occurred or the maturing of the individual since conviction, or any other mitigating circumstances. Many of these regulations are blanket prohibitions on granting licenses to those with a conviction (although it’s sometimes limited to a felony or violent felony conviction); however, some are a little less explicit. Many licensing regulations include “good moral character” clauses, which state that one must maintain a good moral character in order to hold a license. In many instances, this has been interpreted to bar individuals with criminal records, as that supposedly does not indicate good moral character. Both the blanket bans and good moral character clauses are blind to the circumstances surrounding each individual applicant. These regulations are inherently unfair to those who have put in the time and effort to separate themselves from their past, and who are trying to get on the right track by securing a job.
Even if someone is technically able to apply and qualify for a license, there can be other barriers. Frequently, applying for an occupational license involves large costs. While someone is in prison, they lack a quality source of income, and upon release, it may be difficult to support oneself (and, if applicable, afamily). It is a bit of a paradox – the individual is applying for a job so that they can make money, but they need money in order to apply for the required license. On average, acquiring an occupational license involves nine months of education or training, passing some sort of exam, and over $200 in fees. One third of the licenses examined in a study by the Institute for Justice took more than a year to earn. The costs associated with these licenses can be huge for someone just coming out of prison, even for a job they had in prison, like a firefighter or electrician.
Potential Solutions
Community Values
There are various ways our society can address these issues. First, and most importantly, we should encourage fair hiring practices in our communities. Our families, friends, and neighbors are also our bosses and employers – we can do good by promoting non-judgment and fairness not just in employment policies, but in all areas of life. Being more accepting of those with criminal histories in our everyday lives can have a waterfall effect and help change the attitudes of those who make important decisions like these. For any of the subsequent proposals to be enacted and to be successful, we have to make sure our communities are open-minded and focused on helping formerly incarcerated individuals reintegrate into society.
Increased Sealing and Expungement
Second, states can increase the scope of sealing and expungement remedies. This would allow more individuals to have their records erased, meaning it will be easier for them to get over the job application hurdle. States vary a lot in their policies in this aspect, in terms of how long something must be on your record before it can be cleared and what kinds of convictions are available for these remedies. These solutions will be highly-specific to the landscape in the state, depending on what kind of laws they already have in place, but the National Reentry Resource Center summarizes some ways individual states have tried to enact these changes:
- Automatically seal records of low-level misdemeanors after a certain period of time
- Reward education by decreasing the waiting period for sealing and expunging for those who have earned a diploma or degree
- Automatically consider clearance of juvenile offenders’ records when they reach their 18th birthday
These changes, among others to the sealing and expungement processes, would make it easier for people to leave their criminal past behind them and move on in all areas of life, including in employment.
Alter Occupational Licensure Standards
Third, states can change professional licensure rules to encourage review of each candidate on personal merits. One approach limits prohibitions to where the conviction is recent or relevant to the job, rather than the blanket prohibitions that currently exist. If a conviction is twenty years old, or if a conviction is entirely unrelated to the license being pursued, that should not be considered as a factor in an application. Licensing boards may implicitly take prior convictions into account when considering applications, but an explicit guidance that this is not to be done would be a step in the right direction. Clear guidelines would at least provide some recourse if an individual believed that they were denied a license solely because of their conviction.
Additionally, we could revise rules with good moral character clauses, to make it explicit that a criminal conviction should not be considered determinative here. Setting clearer standards of what constitutes ‘good moral character’ would allow the process of licensure to be more transparent and fair, and take into account an individual’s whole background, not just their conviction. This would also allow potential applicants to know sooner whether their conviction disqualifies them for a specific job; otherwise, they may waste their time and resources applying only to find out that their conviction goes against this clause.
Another proposal in this area would be to subsidize licensure costs for those who recently got out of prison, or even for those that are soon to be released from prison. This could include paying the application and licensure fees, and also providing training for these jobs that would be transferable to what’s required for licensure. As mentioned previously, the process of acquiring an occupational license can take around a year, so we could start this timeline while people are in prison so they have an easier time getting jobs when they get out.
Ban the Box Laws
Finally, states can impose ban the box laws, which prohibit employers from asking about criminal records until a certain stage in the application process. The term ‘ban the box’ comes from the idea of prohibiting the box on job applications where employers ask about criminal history. These laws are perhaps the most prominent proposals to address these issues – several states and cities have already enacted ban the box laws.
Ban the box laws vary a lot in how much protection they provide to those with criminal records; some only prohibit employers from asking about criminal history on the application, but others prohibit employers from asking about it until after a job offer is made. California goes even further in requiring employers to explain the reasons for their decision to the applicant if they rescind the offer after learning of the applicant’s criminal background. The later the employer can ask about criminal background, the better – if they can only ask about it after making an offer, there is no chance for it to impact their hiring decision, whether it would have factored in explicitly or implicitly. It’s important to know that most ban the box laws do contain exemptions for positions that require working with vulnerable populations, like children or the elderly.
California’s ‘Ban the Box’ law, the Fair Chance Act, went into effect in 2018; however, enforcement has been lackluster. The state is ramping up enforcement with new technological measures to find potential violations. This change came after a one-day state review in October 2021 found over 500 job postings in violation of the law. This shows us that these laws are only as good as their enforcement. The principles behind these laws are good, but we need to make sure we are holding employers accountable if they violate the law. It remains to be seen whether these enhanced enforcement measures will make a difference in California, but if they do, it could be a good model for other states to follow.
Closing Thoughts
Ultimately, our society must make it easier for formerly incarcerated individuals to reintegrate into normal life, and an aspect of that is making it easier for these individuals to get jobs. I have outlined some proposals to do just that, but as mentioned previously, these must come with a change in societal attitudes. We cannot isolate those coming out of prison; we must accept them back into our communities and recognize how they can contribute to our society. Lowering barriers to employment will provide benefits for both formerly incarcerated individuals and for society as a whole; thus, it is important that we recognize that this problem exists and that we begin to take steps to address it.