Job Seekers With Criminal Record Face Higher Hurdles

Thursday, January 17, 2013

A few months ago, Melissa was standing outside her welfare-to-work program in Downtown Brooklyn, about to go to a job interview. It was the same routine she has performed for six months, every day, Monday through Friday. She projected confidence about her abilities and her experience, but not about her chance of getting the job.

“I’m a people person, and I always ace every interview I go on,” she said. “It’s just my background that’s holding me back.”

When Melissa was 15 years old, an older man began manipulating her, ultimately becoming her pimp.

When she was 19, she was convicted for her third, and final, prostitution-related offense. For Melissa, who asked that WNYC not use her last name, that was a turning point. Six years later, she has her GED and years of work experience as a cashier and home health aide—jobs she took to support her younger brother and two-year-old daughter.

As she searches for a job in today’s tough job climate, however, she is finding that job experience matters less to many employers than her three convictions.

It’s a problem that millions of New Yorkers with criminal records face when they look for employment.  In 2011 alone, nearly 250,000 people in New York were convicted of crimes serious enough to warrant fingerprinting.  And while employers are barred from pre-emptively excluding anyone with a criminal record, many do.

In New York, a Model Law

When it comes to getting a job, New York leads the country in legal protections for people with criminal records. For nearly 40 years, Corrections Law Article 23-A has required that employers treat each job-seeker as an individual, instead of screening out all applicants that fit a certain profile.

When the federal agency that polices employment discrimination issued the first new guidelines in two decades on the subject, it cited that principle as a “best practice.”

“They’re basically suggesting to employers that employers should follow the New York standard,” says Richard Greenberg, an employment lawyer at Jackson Lewis.

The New York standard started as an idea of law professor Michael Meltsner and two of his students at Columbia University.

The law they created said that businesses could only deny someone a job due to their past convictions or arrests after considering eight factors, including the seriousness of the crime, how long ago it occurred and its relevance to the job. It was, and still is, unique among state laws, according to Meltsner.

“The notion wasn’t that embezzlers should have a right to work in banks,” says Meltsner, now a professor at Northeastern University. “The focus of the law was on providing a remedy for those whose crime had nothing to do with their employment goals.”

The goal was to stop a vicious cycle: People with criminal records find it harder to get a job, but not having a job makes it more likely they will re-offend.

“It was a great formal victory,” he says. “The problems, of course, came afterwards.”

Melissa’s Story

Legally, employers in New York can only reject someone like Melissa after considering her age at the time of her convictions, the seriousness of her offenses and her recent years of good conduct. They would have to make a determination that there was a “direct relationship” between her convictions and the job or that she posed a threat to public safety.

Hearing Melissa’s story, Meltsner said: “The law was written to protect people just like that.”  

But Melissa has been rejected time and time again.

“Unfortunately,” she said, “my future is basically jeopardized because of my past.”

When she applied for a job at a home health care agency, she said she was not only rejected—she was told to “seek another line of work.”

At a New York City tourist attraction, Melissa was offered a job selling tickets, only to have it rescinded the day before orientation.

In an email she received, the company explained its reason: “We must withdraw our offer for the Admissions Associate position due to the background check.”

“There should be no reason why someone with that type of history shouldn’t have that kind of job,” said Clifford Mulqueen, deputy counsel for the New York City Commission on Human Rights, which processes employment discrimination complaints.  He said Melissa could have a strong legal case.

“If that person really exists,” he said, “you tell her to come in here.”

But Melissa didn’t file a complaint.

“I know that’s going to take a long process,” she said.  “At the end of the day, I don’t want to cause trouble for anyone. I just want a job.”  

According to Metlsner, these are some of the main problems with the law he wrote: enforcement and reliance on individuals to file complaints.

“The enforcement that's occurred over the years since the law was enacted has basically been individual cases,” he said. “And you can win dozens of individual cases and not really change the behavior of large numbers of employers.”

Breaking the Law

To see employers flouting the law, all you need is the Internet.

Job postings that ban all applicants with criminal records are “blatantly illegal” because they rule out any possibility of individualized analysis, according to Sally Friedman, legal director of the Legal Action Center.

But on the job posting portion of Craigslist, a slew of such ads state: “absolutely no felony convictions,” “must have clean criminal record,” or “completely clean record.”

“Employers would never post illegal requirements like this for categories such as race, gender, religion,” Friedman said, “but when it comes to criminal records, a lot of employers do not realize that the law even prohibits these practices.”

Employment lawyer Richard Greenberg admitted that ignorance of the law is an issue.

“I’m never going to assume that every employer is fully aware of the law,” he said. But he added that most large companies are aware and go through the procedures of discussing the legally required factors.  

“Whether or not it changes the decision maker’s judgment, or whether or not that decision maker is going to be more lenient: that’s a separate question,” he said.

The result may be a form of discrimination that is harder to see.

Subtle bias

More common than outright rejection for people such as Melissa, is to not get a call back. When that happens, Melissa often assumes it’s because of her record.

“When an employer has two applications in front of them...but she checks ‘no’ for the box that says conviction and I check ‘yes,’ of course they’re gonna go with her,” she said.

The New York City Hiring Discrimination Study set out to test that hypothesis. Researchers recruited young men who were similar in everything from height to physical attractiveness and then sent them to 250, low-wage employers with fictitious resumes that were identical with one exception: one had a minor drug possession conviction.

The difference in how they were treated in person was minimal, but the difference in outcomes was dramatic: The job applicant with a conviction was nearly 50% as likely to be called back or receive a job offer.  

Devah Pager, a Princeton sociology and public affairs professor, was the study’s lead author.  She noted there was parallel with racial discrimination.

“The kind of overt bias have diminished substantially,” she said . “But there’s still a huge amount of unconscious and subtle bias.”

Avoid background checks

Melissa’s strategy to combat that possible bias has been to simply avoid applying for jobs that do background checks. This in turn limits her employment opportunities. More than two-thirds of employers require background checks for every single employee, according to the most recent survey of the Society of Human Resources Managers.

But for the moment at least, her strategy has worked.

A job developer at her welfare-to-work program told her a grocery store chain was hiring cashiers, no background checks.

She laughed with a mix of joy and relief as she talked about getting the job.

“Something finally came through for me,” she said.

It was part-time and minimum wage--a paycheck of around $175 a week. She said she would keep looking for full-time work and pressing for more hours. “But it’s something better than nothing.”



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Comments [11]

Rather Not Say from Atlanta

I know this article isn't exactly discussing many details of my situation, but I feel I should make this contribution. I am in digital marketing and have managed to fly under the radar while building my experience and career to result in an extremely attractive resume for prospective employers. I had gotten two DUIs in FL around two and three years ago and was also charged with some drug possessions for pharmaceuticals during my most recent DUI. That was two years ago and the other one was three years ago.

Since then I have completed educational programs and substance/alcohol counseling ahead of schedule with remarks such as "the most promising individual with a bright future to ever grace our program."

After a move to Atlanta, I started shopping myself around and was offered a position with YP (The Yellow Pages) as an SEM specialist. Was tickled pink, but worried about my past being an issue. Disclosed everything that could have potentially come up on the background check, was told by the recruting agency that YP had approved the past incidents by stating "they're not at all a problem."

Was literally going to start the next day and got a call from the recruiter stating, "I got bad news. They got the background check back and it 'was just too much for them'." Meaning, I was discriminated against for non-convictions which I thought was insanely illegal. Unfortunately in GA,(according the the Atlanta Bar Association) this is an at-will state and they can do "whatever they want."

So, here I am back to the drawing board feeling like my rights were severely violated. But according to GA law, they weren't in the least bit. This has to stop and employers must realize people make mistakes. If you've payed your debts to society, there should be no question if these individuals are risks or volatile investments. So felon, misdemeanor, non-conviction, it doesn't seem to matter.

Jun. 27 2013 10:15 AM
Pam from California

Melissa is on the right track, it's unfortunate that it's taken such valuable time for her to see the best ways to avoid the roadblocks having a record causes.

First, using resumes whenever possible rather than filling out an application allows an applicant with a record to get a foot in the door in a way that you never will be able to with an application. It's far better for the question to come up during the interview. The key is to then be able to disclose the conviction with diplomacy, knowing when it's best to say more or less. I actually provide my students with a script specific to their offense that they must memorize.

The second element is to apply to smaller Mom and Pop operations, which it sounds like Melissa has done to her success with the grocery store. Their hands aren't tied the way large corporations can be.

And thirdly, understanding the fields where federal laws prohibit hiring someone with a record saves a lot of time and frustration, for example, the child care position where Melissa was rejected.

It's important to be informed about the smartest way to go about getting a job with a record, otherwise one risks expending energy and time unnecessarily, and eventually there's the risk of losing hope.

Pam Hogan, MCJ, is the author of "From Prison to Paycheck: What No one Ever Tells You About Getting a Job." Additional tips can be found at

Apr. 25 2013 01:54 PM

I worry about my son's future. He was arrested at 18 years old - at age 24 still can't get a job. When I die, he'll be homeless. Great country we live in. God will show those who ruin the lives of others the same Mercy they show to the lives they've ruined.

Apr. 04 2013 08:52 PM
Sorry Offender from New Jersey

Man I got caught smoking weed by the cops and yes its on my record so thus I have a criminal record. My diminished future is all I think about these days. Where is the justice in ruining people life like that? How does that stop people from re-offending? All this does is turn little fishes into sharks. Then everyone wonders how they got to be such a menace to society maybe if society wasn't so focus on demonizing those who made mistakes they could move pass their errors and be of some help to the community.

Mar. 20 2013 06:58 PM
adam c smith

If you want to work: lie. It's better to get fired later than never have a job at all, and odds are they wont check.

Mar. 14 2013 06:26 PM
Leslie Alfin from Brooklyn, NY

Thanks for this piece! This hits at the heart of a serious issue that my partner (formerly incarcerated) and I are addressing at our social enterprise--corners2cornerstones. It is a social entrepreneurship training and careering development program and incubator (brooklyn) for the formerly incarcerated that provides assistance in launching business and/or internships with established companies.

Jan. 18 2013 07:54 AM

Government should give businesses incentives to hire people with low-level criminal convictions who will otherwise be on government assistance. Save us money in the long run, and probably save people's lives as well.

Jan. 17 2013 08:14 PM
Laurel W. Eisner, Sanctuary for Families from New York, NY

Many thanks to WNYC for shining a light on the plight of Melissa, who was pimped into prostitution when very young and now as an adult is unable to find a job due to her criminal record. Sanctuary for Families works with many women and girls who were trafficking victims and face the same challenges.

Happily, there is now a state law that permits victims like Melissa to get those prostitution convictions vacated where they can show such convictions were a result of having been trafficked. Additional remedies to encourage effective use of the law are under consideration by advocates.

Sanctuary has an attorney on staff who is an expert on these proceedings and we would be happy to meet with Melissa and see if we can help her. Sanctuary is also pleased to provide further details about this important legal remedy and our recommendations to make it more accessible.

Jan. 17 2013 01:56 PM
suzinne from Bronx

Of course, inmates returning to society should be able to get back on track and become functional and law abiding members of society. Unfortunately, in today's brutal job market and economy this is just not possible. Many people with degrees and good job histories are already lined up for jobs. So where does that leave an ex-convict? In no man's land.

My guess is recidivism will be a huge issue with these very people.

Jan. 17 2013 01:05 PM
Marie from Rockland

Perhaps employers should be given some kind of incentive to the risk of hiring a felon. For instance, that a felony criminal must accept 1-2 dollars less than the regular worker per hour for 1-2 years until performance is evaulated.

Jan. 17 2013 11:36 AM
RUCB_Alum from Central New Jersey

I am libertarian to the extent that I draw a bright line between things that are bad in themselves and things that are bad because we say so. Prostitution and drug use or possession are among these to me and - as a small business owner - these minor offenses would not prevent me from hiring an individual - as long as they were honest about it during the interview! If I uncover things that should have been brought up or were lied about on the application the prediliction towards falsehood becomes a red flag.

In my corporate days, these small offenses could be considered the "camel's nose under the tent" and HR would steer me away from the candidate.

Jan. 17 2013 11:33 AM

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