When Is It Safe To Hire Someone With A Criminal Record?
Published July 2009 in the Background Investigator
Carnegie Mellon University researchers have created a model for
providing empirical evidence on when an ex-convict has been "clean"
long enough to be considered "redeemed" for employment purposes.
The new study estimates that after five years of staying clean an
individual with a criminal record is of no greater risk of
committing another crime than other individuals of the same age. The
research comes at a time when President Barack Obama's crime agenda
includes breaking down employment barriers for people who have a
prior criminal record, but who have stayed clean since their earlier
"In the past, employers had no way of knowing when it might be
safe to look past a criminal record," said Alfred Blumstein,
co-author of the study and the J. Erik Jonsson University Professor
of Urban Systems and Operations Research at Carnegie Mellon's H.
John Heinz III College. "Hiring an ex-offender was a totally
arbitrary decision. We believe our model can change that and help
provide employers with data in making such decisions. Or it can be
used by state criminal-record repositories in deciding when a prior
arrest is too 'stale' to warrant distributing." Blumstein's
co-author is Kiminori Nakamura, a Ph.D. student at the Heinz
The issue of employing ex-offenders has become more of a problem,
as a vast majority of larger U.S. employers now perform criminal
background checks, Blumstein said. He noted that advances in
information technology allow criminal records to be kept longer and
to be distributed easily, and employers are concerned about
liability risk if the former offender commits a new crime. Blumstein
said this makes it difficult for a large number of people who have
committed crimes when they were much younger, but have stayed clean
The study, funded by The National Institute of Justice, used
criminal-history records of more than 88,000 first-time offenders in
New York in 1980. Most committed new crimes within the first few
years after their initial arrest, but only a small minority had a
new arrest after staying clean for at least five years. After
determining whether the offenders had remained clean during the
ensuing 25 years, the data on the 1980 offenders was compared
against two comparison groups. The study determined that after about
five years those in the offender group were at or below the risk of
arrest as people in the general population who were the same age. A
more demanding comparison is with people of the same age who had
never been arrested. Those with a prior record had to stay clean
longer, but their risk could be close enough even to that low-risk
Future studies will address other states and sampling years to
assess the consistency of results. This effort is intended to
develop standards for employers and record repositories to help
reduce the handicaps imposed on those who had committed a crime when
they were younger.
Advantages To Hiring Ex-Cons
Many employers balk at the prospect of hiring someone
with a criminal record. However, many employers who have a history of
hiring ex-convicts say that, generally speaking, ex-convicts can
sometimes make exceptionally dedicated and motivated employees who are
grateful that their employer has taken a chance on them. Some former
prisoners have had good vocational training while incarcerated.
Also, the U.S. government provides many benefits to
companies who actively seek to hire ex-convicts. Some examples:
Work Opportunity Tax Credit (WOTC): Gives an
immediate contribution to an employer's "bottom line" by providing
eligible employers with a federal tax credit for hiring an
Job Training Partnership Act: Can reimburse some
training wages; offers additional services that vary by state.
Prisoner Reentry Initiative (PRI): Awards grants
to employment-centered organizations that provide mentoring, job
training, and other transitional services for ex-offenders.
In addition, some states offer a free service that
provides individual fidelity bonds to employers for job applicants
with a conviction record. State reentry resources can be found online
Do your state or local laws prevent the consideration of certain
convictions? Some states expressly prohibit employers from hiring
ex-offenders if the job and the crime are directly related, such
as hiring a convicted sex offender for a child care position.
Do industry regulations restrict employing ex-offenders who have
committed certain crimes? The banking industry, for example,
prohibits the employment of individuals who have been convicted of
How relevant is the conviction to the job? Think of the crime as
it relates to the core job duties. Deciding not to hire a
convicted bank robber for a job as a payroll clerk is probably
more defensible than deciding not to hire a convicted bank robber
for a job as a gardener, for example.
How long ago did the conviction occur? In general, the more recent
the conviction is, the firmer the legal ground you stand on in not
extending a job offer.
What rehabilitation has the applicant been through, if any? An
applicant with an alcohol-or drug-related conviction who has
successfully completed a substance abuse program may have a strong
argument that he has put his troubles behind him, unlike one who
has not undergone any rehab.
What is your company policy and/or past practice? Always be
What does your liability insurance policy say about hiring people
with criminal backgrounds? How are you bonded? Check with your
A project of Helping Individuals with criminal records Re-enter
through Employment Roberta
Meyers-Peeples Director April L. Frazier, Esq. Deputy Director 236
Massachusetts Ave. NE, Suite 505 Washington, DC 20002 202-544-5478 (p)
202-544-5712 (f) 225 Varick Street 4th Floor New York, NY 10014 212-243-1313
(p) 212-675-0286 (f) www.hirenetwork.org Email: firstname.lastname@example.org
"An Examination of Federal Employment
Practices/Policies on Hiring Ex-Offenders"
Written Testimony submitted to
Congressman Danny K. Davis
Chairman, Subcommittee on Federal Workforce,
Postal Service, and the
District of Columbia
Tuesday, June 10, 2008
Director of National H.I.R.E. Network
Legal Action Center
225 Varick Street, 4th
New York, NY 10014
212-243-1313 ext. 135
Thank you Congressman Davis and committee
members for holding this very important hearing to discuss the employment
barriers individuals with criminal histories face when seeking employment,
particularly those barriers that are a direct result of federal legislation.
We appreciate Congressman Davis’ leadership in addressing the roadblocks that
thousands of individuals face when seeking to successfully reenter society and
become gainfully employed.
The Legal Action Center (LAC) is a
non-profit law and policy organization whose sole mission is to fight
discrimination against people with histories of addiction, HIV/AIDS, and
criminal records, and to advocate for sound public policies in these areas.
For over three decades, LAC has worked to combat the stigma and prejudice that
keep these individuals out of the mainstream of society. We are committed to
helping people reclaim their lives, maintain their dignity, and participate
fully in society as productive, responsible citizens. We do this by working to
eliminate discriminatory barriers to employment, housing and social services,
and protecting confidentiality. The National
Helping Individuals with
criminal records Re-enter through Employment (H.I.R.E.) Network
is a project of LAC that is committed to increasing the number and quality of
employment opportunities available to people with criminal records by
improving employment practices and public policies, and changing public
Unlike other countries, in the United
States, the stigma that individuals with criminal histories face is
essentially life-longi. As of
December 2003 there were as many as 71 million Americans with arrest records
on file in state repositoriesii, many of which may have never resulted in a
conviction. Only 10 states (CA, HI, IL, MA, MI, NY, OH, RI, UT, and WI)
prohibit public and private employers and occupational licensing agencies from
using arrests that never led to conviction.iii There are only 14 states that
have laws that prohibit employment
Roberta Meyers-Peeples June 10, 2008 Page 2
discrimination against qualified applicants with criminal
histories. In some states, these laws only apply to public employers and
occupational licensing agencies—AZ, CO, CT, FL, KY, LA, MN, NM, and WA. In
only 5 states, these anti-discrimination laws pertain to public and private
employers—HI, KS, NY, PA, and WI.iv
Now that addressing reentry is a policy priority of this
nation, Congress needs to seize the opportunity and put protections in place
so that qualified individuals, who benefit from the programs that are now
authorized under the Second Act, actually have a fair opportunity to get
employed and earn a living wage.
In states around the country, individuals
with criminal histories are barred from obtaining hundreds of occupational
licenses, even if their conviction(s) is not related to the work of the
profession or if their record is old, or in some cases, minor. In addition to
these state occupational licensing barriers, we also know of at least eight
industries that are federally regulated that prohibit or limit the employment
of individuals with criminal records.
- o Finance: Convictions for offenses involving dishonesty,
breach of trust, or money laundering disqualify an individual from working
for institutions that are insured by the Federal Deposit Insurance
Corporation, even if the job does not relate in any way to the handling of
funds.v Visit http://www.hirenetwork.org/FDIC.html for
information about the waiver process, "People with Criminal Records
Working in Financial Institutions: The Rules on FDIC Waivers."
- o Insurance: Federal law bars certain classes of felons
from working in the insurance industry without having first received
permission from an insurance regulatory official.vi
- o Unions: Certain classes of felons are barred, for 13
years after conviction (or the end of imprisonment if sentenced for a term
of longer than 13 years), from holding any of several positions in a union
or other organization that manages an employee benefit plan, including
serving as an officer of the union or a director of the union’s governing
- o Healthcare: Federal law prohibits those convicted of
certain crimes from providing healthcare services for which they will
receive payment from Medicare, viii or from working for the generic drug
Roberta Meyers-Peeples June 10, 2008 Page 3
- o Childcare: Federal law requires criminal history
background checks for those individuals who provide care for children.x In
addition, the Federal Child Protection Actxi authorizes states to
institute mandatory or voluntary fingerprinting of prospective employees
in childcare fields in order to facilitate criminal background checks and
- o Prisoner Transportation: Prisoner transportation by
public or private agencies is federally regulatedxii and federal law sets
"minimum standards for background checks and pre-employment drug testing
for potential employees including requiring criminal background checks to
disqualify persons with a felony conviction or domestic violence
conviction from employment."
- o Aviation, Port, and Ground Transportation Workers:
Since September 11, 2001, numerous efforts have been made to increase
security in our nation’s transportation industry. As a result, federal
laws now require workers in the transportation industry to undergo a
criminal background check and, in varying circumstances, to be
disqualified for having a criminal record. Individuals who work in
airports must be fingerprinted to get clearance to have unescorted access
to airport security areas.xiii All truck drivers have to undergo a
criminal background check to qualify for a "hazmat material endorsement"
(HME).xiv The Maritime Transportation Security Act (MTSA) requires a
criminal background check for all port workers to identify those who pose
a "terrorism security risk."xv Port workers have to qualify for a
Transportation Worker Identification Credential (TWIC) in order to have
unescorted access to a secured area of a port facility or vessel. For more
information on port worker TWIC requirements:
Visit NELP's TWIC
TWIC Know-Your-Rights Fact Sheet:
- o Private Security Guards: The Private Security Officer
Employment Authorization Act of 2004xvi
authorizes a fingerprint-based criminal history check of
state and national criminal history records to screen prospective and
current private security.
The Legal Action Center has represented or
advised several individuals who have been barred from working in many of the
industries listed above and each of these individuals, in their own right,
have done all that we as a society would expect them to do: remain crime free,
change the course of their lives through education and work, and to be
contributing members of society.
Some examples of individuals that have
contacted the Legal Action Center for assistance include:
Roberta Meyers-Peeples June 10, 2008 Page 4
- o A man in Florida, now in his thirties, who had been
employed by a company that did debt collection activities for Citicorp for
nearly two years was encouraged to apply for a Customer Service/Sales
position at Citicorp for which he was qualified. He did apply and had an
excellent interview with favorable response, but because he had a criminal
conviction that was over 10 years old but theft related, he had to receive a
Federal Deposit Insurance Corporation (FDIC) waiver to get the job. He
contacted the regional FDIC office that was responsible for reviewing waiver
applications and was told he could not apply. He had to get the prospective
employer to apply for the waiver on his behalf. Needless to say, he did not
get the job.
According to the director of the
regional FDIC office that was responsible for receiving and reviewing
waiver applications, they have never processed an application from an
employer on behalf of an applicant with a criminal record and probably
never would. This is an example of legislation that offers a waiver
process that is essentially useless to any job seeker that may be
qualified and capable of working in the financial industry without posing
any real risk to a business. 12 U.S.C. § 1829 should be amended to allow
individuals to apply on their own behalf for clearance to work in an FDIC
- o A forty-six year old man was fired from his job as a
baggage handler at John F. Kennedy airport in New York based upon a 10 year
old conviction. The U.S. Department of Homeland Security refused to grant
him security clearance due to his drug-related conviction without giving any
consideration to all of his accomplishments since the conviction and
successful rehabilitation. He struggled with substance abuse earlier in his
life, but was clean for 9 years after receiving treatment and had no further
contact with the criminal justice system. The airline company hired him with
full knowledge of his conviction because of his strong work history and
qualifications for the position. He was able to work for the airlines while
his security clearance application was pending, and during that one year
period he received glowing evaluations from his employer.
Nonetheless, the port director denied his
application without stating any specific reasons for the denial and
without acknowledging his amazing story of recovery and tremendous success
in turning his life around. Unfortunately, he came to the Legal Action
Center after all administrative appeal rights were exhausted, and we could
not assist him. However, it brought to our attention the unfair screening
practices of the Department of Homeland Security.
Under 19 C.F.R. §122.183 (which regulates
the background screening process for airport workers), the port director
may deny security clearance to people with certain offenses, that include
but are not limited to interference with air navigation, carrying a weapon
aboard an aircraft, theft, violent offenses, bribery, fraud and drug
offenses "for a 5-year period, or any longer period that the port director
deems appropriate for the offense in question." Currently, Homeland
Security has unfettered discretion to deny people security clearances
based on their criminal record for an indefinite period, and there is no
statutory provision that requires Homeland Security to consider the
rehabilitation of the
Roberta Meyers-Peeples June 10, 2008 Page 5
individual. This statute should be amended to require the
consideration of rehabilitation and successful reintegration when
considering security clearance applications. In addition, the Department
of Homeland Security should develop a user-friendly application process
that provides instructions to individuals with criminal records on how to
submit supportive evidence of rehabilitation. Most applicants can not
afford legal counsel when going through this process, and thus the
application should be simple and easy to understand.
- o Another client was denied a nursing position because of
a federal employment barrier imposed by the Department of Health and Human
Services. She was convicted six years ago of misappropriations of federal
funds. She was the director of a daycare owned by her mother, where funds
from a federal grant that serves disadvantaged children was used by her
mother for non-business purposes. After her conviction, she attended college
and received her bachelors of nursing. She was approved and licensed by the
state nursing agencies in both New York and Florida. She was hired by a
hospital in New York and was later informed that she could not start work
because she was listed on the Inspector’s General ("I.G.") List of
Excluded Individuals for ten years because of her conviction. Any person
listed on the I.G.’s exclusion list can not work for employers who receive
Medicaid and Medicare payment – which in essence includes all medical
With the assistance of LAC, she is in the
process of appealing her exclusion to an Administrative Law Judge ("ALJ").
Fortunately, the statute does permit her to request a hearing before to
determine whether the exclusion period is reasonable based upon the facts
in her case; however, the ALJ’s scope of review is severely limited based
upon the statute and evidence of rehabilitation can not be considered by
the Judge. This statute should be amended to expand the scope of review by
the ALJ and allow individuals to present evidence of rehabilitation to
overcome this employment barrier.
• Congress should create a federal human
rights standard that encourage employers to hire qualified applicants with
criminal histories and prohibits flat bans against hiring individuals with
• Congress should prohibit employers and
other non-law enforcement agencies from inquiring about or using information
about arrests that did not lead to conviction or missing dispositions on
criminal record reports issued by the Federal Bureau of Investigation.
Roberta Meyers-Peeples June 10, 2008 Page 6
• Congress should enact a federal standard
based on recommendations outlined in the Equal Employment Opportunity
Commission guidance on the use of background checks for employment purposes
when screening applicants with arrest and conviction records. While we believe
that assessing all applicants on individual bases serves the best interests of
employers, applicants and the public, it may be determine that using a matrix
or categorical rules to screen applicants is preferable. In such cases where
categorical bans are recommended, there should be time limits based on the
severity of the criminal history and how old the conviction record.
Suitability criteria also should only include disqualifying offenses that are
related to the job.
• Congress should require that all current
and future legislation that authorizes the disqualification of individuals
with criminal records includes a waiver/appeal process whereby the applicant
can challenge inaccuracies in criminal record reports, present evidence of
rehabilitation and other mitigating information relevant to their criminal
history and rehabilitation. The applicant should always be able to present
this information even if they fall within categorical time limits on
• Congress should require all current and
future legislation that authorizes the use of criminal background checks for
employment related purposes to include a provision that designates an
independent body to make fitness determinations rather than individual
Thank you for hearing and considering our
testimony. We are encouraged by your willingness to forge ahead in the spirit
of the Second Chance Act to address the employment needs of individuals with
criminal histories who are seeking to become contributing members of society.
Please do not hesitate to consider us a resource to the committee on these
Roberta Meyers-Peeples June 10, 2008 Page 7
i Other countries, for example the United Kingdom, have
created policies that limit how long information about a person's conviction
history can be used against him/her, which they call "spent convictions" (see
the Rehabilitation of Offenders Act of 1974). And, other countries have also
provided anti-discrimination protections to this population through its
national human rights laws, for example in Australia (see the Commonwealth
Consolidated Acts, Human Rights and Equal Opportunity Commission Act 1986) and
Canada (see the Canadian Human Rights Act, R.S., 1985, c. H-6).
ii See Bureau of Justice Statistics, Background Checks for
Firearms Transfers, (2005). Criminal Record Systems Statistics. http://www.ojp.usdoj.gov/bjs/crs.htm.
iii Legal Action Center, After Prison: Roadblocks to
Reentry. (2004). www.lac.org/lac.
v See 12 U.S.C. § 1829.
vi See 18 U.S.C. § 1033(c) (2).
vii See 29 U.S.C. §§ 504, 1111.
viii See 42 U.S.C. § 1320a-7.
ix See 21 U.S.C. § 335a.
x See 42 U.S.C. § 13041.
xi See 42 U.S.C. § 5119(a).
xii See 42 U.S.C. § 13726(b).
xiii Aviation and Transportation Security Act of 2001, 40
U.S.C. § 44936.
xiv US Patriot Act of 2001, 49 U.S.C. § 5103a.
xv Maritime Transportation Security Act of 2002, 46 U.S.C. §
xvi Pub. L, No... 108-458, Tit. VI (E) § 6402.
Roberta Meyers-Peeples June 10, 2008 Page 8
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