#BanTheBox: Take Action for Federal Fair-Chance Hiring!

Fair-Chance-Federal-NELP-TW

Join the National Employment Law Project (NELP) and The Leadership Conference on Civil and Human Rights today for a National Day of Action calling on President Obama to give people with records a fair chance to work at federal agencies and contractors.

Here’s how to help:

  • Sign this letter to President Obama urging his administration to ‘Ban the Box’ on federal job applications and to adopt other fair chance hiring reforms for all job seekers, including those with records!
  • Send a tweet to President Obama (@POTUS)
    • It’s time for the U.S. to adopt a federal #FairChance hiring policy! Tell @POTUS to #BantheBox pic.twitter.com/73sQk8oixo
    • @POTUS can help open up employment opportunities for qualified job-seekers with records #BanTheBox #FairChance pic.twitter.com/73sQk8oixo
    • #FairChance reforms restore hope & opportunity to qualified job-seekers with an arrest or conviction record. @POTUS, it’s time to #BanTheBox

Nationwide, over 100 cities and counties have adopted what is widely known as “ban the box” so that employers consider a job candidate’s qualifications first, without the stigma of a conviction record. These initiatives provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring.

17 states and over 100 cities and counties have taken steps to remove barriers to employment for qualified workers with records. Six states, the District of Columbia, and eleven cities and counties extend their fair chance hiring policies to local private employers. It’s time for President Obama to take executive action on federal fair chance hiring.

Here’s the bottom line: Fair chance hiring policies should extend to federal contractors and agents. Formerly incarcerated people deserve equitable opportunities to success.


“Ban the box” initiatives help individuals, families, and local communities by reducing the stigma attached to having a criminal record. These policies are based on fairness, inclusion, and community improvement. Citizens going through the reentry process face myriad barriers to their access to housing, social services, education, and employment. Fair chance hiring policies help alleviate boundaries to formerly incarcerated people’s success.

Stable and secure employment is critical if we hope to give meaningful second chances to people coming home from prison and jail. Formerly incarcerated people should not be denied the ability to succeed. The federal government has the opportunity to send a message that people in the reentry process are valuable—and valued—members of society.

2013 Legislative Roundup

California State Capitol Building, Sacramento, CA. Photo credit: Asilvero

California State Capitol Building, Sacramento, CA. Photo credit: Asilvero

2013 was a big year for reentry and criminal justice reform legislation in California. A lot of wonderful and important changes were made. These reforms promote public safety and human rights for people coming out of prison and jail. And changes at the top have a ripple effect on our work—these changes mean that Root & Rebound and other reentry orgs can do more for clients who are trying to get their lives back on track after incarceration.

Below you will find the criminal justice reforms and reentry legislation that was passed, vetoed by the Governor, or is currently pending in California over the 2013-2014 legislative term.

 Bills Signed into Law in 2013:

“Ban the Box” – Removing Barriers to Employment

AB 218 (Dickinson) — Research shows again and again that stable employment significantly reduces the likelihood that someone who has been incarcerated will reoffend. Barriers to employment for the nearly seven million adult Californians with a criminal record make their successful reentry into society even more difficult, which affects public safety. Otherwise qualified individuals are often discouraged from applying for work because job applications ask about conviction histories. AB 218 prohibits state and local agencies from inquiring about an applicant’s record until the agency has determined the individual meets the minimum employment qualifications for the position.

STATUS: Signed into law on October 10, 2013

Acceptance of Prisoner ID Cards

AB 625 (Quirk) authorizes a Prisoner‘s Identification Card to be used as a valid ID for a notary to formalize legal documents while a person is in prison.

STATUS: Signed into law in August 2013

Convictions: Expungement

AB 651 (Bradford) Fills a critical gap in the law and helps to reduce barriers to reentry. Under AB 651, people who complete a local sentence under the new Realignment laws have an opportunity to petition for “set aside and dismissal” (also known as “expungement”), after completing a waiting period and demonstrating rehabilitation to the court. This process is similar to the one already available to individuals who successfully complete felony Probation, and does not mean that a conviction is removed from a person’s record.

STATUS: Signed into law in October 2013

Medi-Cal/Medicaid as a tool to reduce crime and jail costs

AB 720 (Skinner) — Many people in jail have mental health or addiction problems, and as many as nine in 10 have no health coverage. Studies show that enrolling jail populations in federally funded Medi-Cal can reduce recidivism (16 percent for those with mental illness) and save money. This bill provides a framework for counties to automatically enroll eligible people in jail in Medi-Cal and provides counties with valuable tools for enrollment, including authorizing counties to enroll individuals on their behalf, and allowing someone with Medi-Cal coverage to have it suspended, instead of cancelled, if they are incarcerated again. This ensures that upon release they can access medical care, mental health care, and substance abuse treatment.

STATUS: Signed into law on October 8, 2013

Extending effective work furlough options (co-sponsored with the Chief Probation Officers of California)

AB 752 (Jones-Sawyer) — Under existing law, people who are sentenced to county jail for misdemeanors are eligible for work furlough programs focused on job training and rehabilitation. These programs also allow people with employment to maintain those jobs (key to reducing recidivism) and reserves jail space for higher-risk people. AB 752 would extend these programs to people serving time for specific low-risk felonies in county jail.

STATUS: Signed into law in July 2013

Smarter Justice for Juveniles with Adult Sentences

SB 260 (Hancock) — Recent scientific evidence on adolescent brain development shows that certain parts of the brain, particularly effecting decision-making and judgment, do not fully develop until one’s early 20s. Both the U.S. and California Supreme Courts recognized the significance of this research and banned mandatory life sentences for juveniles; California also banned the imposition of de facto life sentences for juveniles. SB 260 would create a parole process for people given lengthy sentences as juveniles, recognizing the role of brain development while still holding him or her accountable for the crime.

STATUS: Signed into law in September 2013

Diversion Programs and Record Sealing

SB 513 (Hancock) — Provides that in any case where a person is arrested and successfully completes a pretrial diversion program, the person may two years later petition the superior court to seal the arrest and related court records.

STATUS: Signed into law in October 2013

Court Discretion to Grant Certificates of Rehabilitation Early

SB 530 (Wright) — In California, a court may grant a Certificate of Rehabilitation to state by court order that a person has fully rehabilitated and reinstating many of their civil rights. The mandatory rehabilitation period is 7, 9, or 10 years depending on the offense (see PC § 4852.03). SB 530 now allows a court to grant a Certificate of Rehabilitation before the applicable period of rehabilitation.

STATUS: Signed into law in October 2013, effective January 1, 2014.

Currently Pending Legislation: (We can’t post about all of this pending legislation without noting that we all have a VOICE in this process. We encourage you to contact your state representatives about any and all pending legislation you feel strongly about. Please see the information under the below 3 bills about who to contact, sample support letters. etc!) 

Successful Re-Entry & Access to Jobs Act

SB 283 (Hancock) This Bill would allow individuals, previously convicted of a drug felony, who meet all other eligibility rules to receive basic needs services, employment training and work supports through the federally-funded California Work Opportunity and Responsibility to Kids (CalWORKS) and CalFresh programs, provided that they are complying with the conditions of probation or parole, or have successfully completed probation or parole.

STATUS: Currently held for review by the Assembly’s Committee on Appropriations

Reduce Probation Caseloads

AB 601 (Eggman and Cooley) Would develop effective approaches to reduce probationer caseloads and incentivize successful probation completion.

STATUS: Currently held in the Assembly

Restoration of Voting Rights for Persons Sentenced Under Realignment

AB 938 (Weber) Would provide that a person is not excluded from voter eligibility if he or she is on post-release community supervision or mandatory supervision.

STATUS: Currently held in the Senate Committee on Elections and Constitutional Amendments.

Vetoed Legislation:

Flexibility in charging drug possession cases

SB 649 (Leno) would give District Attorneys and Judges discretion to charge simple possession of certain controlled substances as either a misdemeanor or a felony (called a “wobbler”). Current law requires such cases be charged as felonies. The legislation would not have changed the penalties for sale, transportation, manufacture, or possession for sale. In thirteen states, the District of Columbia and the federal government, the penalty for simple drug possession is already a misdemeanor and those states have slightly lower crime rates than felony states and slightly higher rates of people entering drug treatment. This Bill will have helped to alleviate prison overcrowding and potentially saved the state millions of dollars.

STATUS: Passed Senate and Assembly, but vetoed by Governor Brown

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Further information on these Bills can be found at:

Thank you to the many great organizations in California that support criminal justice policy reform, including Californians for Safety and Justice, East Bay Community Law Center, National Employment Law Project, A New Way of Life, Legal Services for Prisoners with Children, ACLU, Drug Policy Alliance, NAACP, Western Center on Law & Poverty, and to the constituents who have fought so hard for safety and justice in California!

—The R & R Team

Employment Law, Title VII, and Advocating for People with Criminal Records

President Lyndon B. Johnson at the signing the Civil Rights Act of 1964, of which Title VII is a subchapter. People watching include then Attorney General Robert Kennedy, Senator Hubert Humphrey, First Lady "Lady Bird" Johnson, Rev. Martin Luther King, Jr., FBI Director J. Edgar Hoover, & Speaker of the House John McCormack. Television cameras are broadcasting the ceremony. Source: LBJ Presidential Library.

President Lyndon B. Johnson at the signing the Civil Rights Act of 1964, of which Title VII is a subchapter. People watching include then Attorney General Robert Kennedy, Senator Hubert Humphrey, First Lady “Lady Bird” Johnson, Rev. Martin Luther King, Jr., FBI Director J. Edgar Hoover, & Speaker of the House John McCormack. Television cameras are broadcasting the ceremony. Source: LBJ Presidential Library

Earlier this month, Maurice Emsellem, Policy Co-Director for the National Employment Law Project (NELP), sat down with Root & Rebound at his downtown Oakland office to talk about the employment issues that arise for people coming out of prison and jail.

At NELP, Maurice specializes in employment law as it affects people with criminal records. Maurice has worked on collaborations with organizers and advocates that have successfully modernized state unemployment insurance programs, created employment protections for workfare workers, and reduced unfair barriers to employment of people with criminal records in state laws and in city hiring practices. He has testified before Congress and numerous state legislatures, promoting innovative policy reforms.

We were lucky to sit down with Maurice and learn about some key areas in employment law that affect people with criminal records. In this blog post, we wanted to share information with you about how one major federal civil rights law—Title VII—can be used to help people with criminal records who are discriminated against in the employment sphere because of their record.

TITLE VII

  1. First, some basic info: Title VII is a federal civil rights law that says it is illegal for employers with 15 or more employees (20 employees for age-discrimination cases) to discriminate against any individual in recruiting, hiring and promotion decisions, transfers, work assignments, performance measurements, the work environment, job training, discipline and firing, wages and benefits, or any other condition or privilege of employment.
  2. Second important thing to know: Title VII only protects people from discrimination that is based on their membership in what the Supreme Court has defined as a “protected class.” Race, ethnicity, religion, sex (including pregnancy), national origin, age (40 or older), and disability are all protected classes under Title VII. Thus, an employer cannot discriminate on these specific bases; but Title VII does not cover groups outside of legally recognized protected classes.
  3. Third, Title VII not only prohibits intentional discrimination against protected classes, but also prohibits employers from having job practices and policies that cause a disparate impact on the basis of membership in a protected class, such as race, color, religion, sex, or national origin. This law is helpful for advocates because, in many cases, it is very hard to prove that an employer intentionally discriminated against a person because of his/ her membership in a protected class; on the other hand, it is easier (though not easy!) to show that, despite an employer’s intention, the workplace policy has a “disparate impact”—that is, it disproportionately harms—a protected class. If a plaintiff shows that a practice has a disparate impact on the basis of sex, race, national origin, or other protected classes, the employer must then show that the job practice is job-related for the position in question and consistent with the needs of the business for the practice to be deemed lawful by a court.

Administrative Guidance on Title VII

  1. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VIIThe U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title VII and federal laws that make it illegal to discriminate against a job applicant or an employee. The EEOC issues compliance guidelines to help employers, courts, and advocates understand and implement Title VII. Importantly for whistleblowers, it is illegal for an employer to retaliate—to discriminate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
  2. The EEOC has issued enforcement guidance stating that an “employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” You can find the EEOC guidance rules online here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
  3. In California, the Employment Development Department (EDD) has also issued Directives related to state and federal employment discrimination laws, including Directives issued to employers who receive federal financial assistance to help them comply with Title VII and their nondiscrimination obligations when serving individuals with criminal records. You can find the EDD’s Directives online here: http://www.edd.ca.gov/jobs_and_training/pubs/wsd12-9.pdf.

So why is Title VII relevant to our work and important for people with criminal records?

Here’s why: In a society that has a racially discriminatory criminal justice system, an overwhelming number of formerly incarcerated people are African American, Latino, and other people of color. So  Title VII’s protections for people on the basis of race, color, and national origin also protect people of color coming out of prison and jail and reentering the job market. Title VII is rich with potential for protecting people with criminal records as they attempt to get work, maintain a stable job, or report discrimination on the basis of their membership in a protected class.

The EEOC has encouraged employers to develop individualized assessments of people with arrest or conviction records in the hiring process, so that they do not violate Title VII. The EEOC guidelines state that, to abide by Title VII, an employer must, at the very least, consider the following four factors in the hiring process: (1) the nature of the applicant’s crime, (2) the time elapsed since the crime, (3) the nature of the job, as well as (4) rehabilitative factors that show a person is ready for work.

Employment laws can and should be leveraged to make reentry as successful as possible, and to fight discrimination against people who have served their time and want to be productive members of our workforce. We hope to see the protections of Title VII enforced and expanded on behalf of people exiting prison and jail—people who are attempting to provide for themselves and their families and enjoy the dignity of a stable job free of discrimination.

Thank you, Maurice, for your expertise and time!

Onward!

–The R & R Team