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Sidebar to the article In Search of a Job: Criminal Records as Barriers to Employment, by Amy L. Solomon, published in NIJ Journal issue no. 270.
In January 2011, U.S. Attorney General Eric Holder established a Cabinet-level federal interagency Reentry Council, representing a significant executive branch commitment to coordinating re-entry efforts and advancing effective re-entry policies. The Reentry Council is premised on a real recognition that many federal agencies — not just the Department of Justice (DOJ) — have a major stake in re-entry. The re-entry population is one with which we are all already working — not only in prisons, jails and juvenile facilities, but in emergency rooms, homeless shelters, unemployment lines, child support offices, Veterans hospitals and elsewhere. When we extend out to the children and families of returning prisoners, the intersection is even greater.
At its first meeting, the council adopted a mission statement to advance public safety and well-being through enhanced communication, coordination and collaboration across federal agency initiatives that: (1) make communities safer by reducing recidivism and victimization, (2) assist those who return from prison and jail in becoming productive citizens, and (3) save taxpayer dollars by lowering the direct and collateral costs of incarceration. The council has empowered staff — now representing 20 federal departments and agencies — to work toward a number of goals organized around coordinating and leveraging federal resources for re-entry; removing federal barriers to re-entry; and using the bully pulpit to dispel myths, educating key stakeholders about federal policies, resources and effective re-entry models.
Regarding employment and reentry, the council has an active working group comprised of staff from the Department of Labor (DOL), DOJ, the Office of Personnel Management, the Equal Employment Opportunity Commission (EEOC), the Federal Trade Commission and the Small Business Administration, among others. The council has developed public education materials, a website and a set of "Reentry MythBusters" to clarify federal policy on a number of issues. Five MythBusters focus on employer obligations and incentives in this area. On the incentives side, DOL offers both tax credits and federal bonding protection for employers that hire ex-offenders. On the employer obligation side, an EEOC-authored MythBuster provides guidance to employers about the appropriate use of a criminal record in making hiring decisions.
The EEOC has long-standing guidance on this issue and is doing enhanced, extensive training and outreach. In July 2011, the Commission held a meeting focused exclusively on arrest and conviction records as barriers to employment. After substantial consideration and review of the information presented both at the meeting and during the public comment period, the EEOC voted 4–1 to issue updated enforcement guidance. The revised guidance, issued April 25, 2012, calls for employers to assess applicants on an individual basis rather than excluding everyone with a criminal record through a blanket policy. It provides new detail and direction for employers in how to consider three key factors — the nature of the job; the nature and seriousness of the offense; and the length of time since it occurred — in writing a hiring policy and in making a specific hiring decision. The updated guidance also emphasizes that employers should not reject a candidate because of an arrest without a conviction, as arrests are not proof of criminal conduct. "The ability of African-Americans and Hispanics to gain employment after prison is one of the paramount civil justice issues of our time," said Commissioner Stuart J. Ishimaru in his statement at the April 25 meeting.
Additionally, in January 2012, the EEOC announced an important settlement agreement with Pepsi regarding its use of arrest and conviction records in employment. The company's policy excluded applicants arrested for any crime — even if they had never been convicted of any offense — from permanent employment. The EEOC found that the criminal background check policy discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964. This was the first public conciliation concerning the use of arrest and conviction records and is already raising awareness among employers. During fiscal year 2010 and fiscal year 2011, the Commission received more than 1,200 charges alleging job discrimination involving criminal background checks.
DOL is also playing a critical role in this area. In addition to substantial investments in re-entry programs and research, DOL is making important commitments to educate their broad network of employment and training entities on these issues. In June 2010, Secretary Hilda L. Solis hosted a roundtable on workforce development and employment strategies for people with criminal records, and she has gone on record with strong statements on the topic. As she stated at the June roundtable, "When someone serves time in our penal system, they shouldn't face a lifetime sentence of unemployment when they are released. Those who want to make amends must be given the opportunity to make an honest living."
About This Article
This article was published as part of NIJ Journal issue number 270, published June 2012, as a sidebar to the article In Search of a Job: Criminal Records as Barriers to Employment by Amy L. Solomon.
[note 2] See Equal Employment Opportunity Commission, "Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans", press release, January 11, 2012; and Hananel, Sam, "Pepsi Beverages Pays $3M in Racial Bias Case" , USA Today (January 11, 2012).
[note 3] Remarks of Hilda L. Solis, Secretary of Labor, "Workforce Development and Employment Strategies for the Formerly-Incarcerated", June 21, 2011.