Overcoming Job Barriers Facing People with Disabilities

who have Criminal Records

Real Jobs New York WebinarSeptember 28, 2010

Stephan Haimowitz, J.D. Burton Blatt Institute Syracuse University sjhaimow@law.syr.edu

Impacts of a Criminal Record

Numerous, legal and social, long-term

Voting, jury service Credit Housing Child custody, foster care, adoption Employment

Controversies

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Controversy – Employment

High recidivism rate vs. predicting 1 person’s behavior

Protecting vulnerable populations

Responsibilities of certain jobs

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Osvaldo Hernandez

2002, convicted of gun possession in NYC at age 19 served 6 months in jail

2007-8, Army 82nd Airborne Paratrooper in Afghanistan awarded numerous combat decorations and citations

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Public Attention

Despite Felony, Army Vet Fights To Be A Cop

-- New York Daily News, Oct 16, 2008

Ex-GI’s Aim is Blue Gun Felon Turned Hero Bids for Shot at NYPD

-- New York Post, Nov 11, 2008

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Rethinking Impacts of a Record

N Y Judge Henry Kron - who had sent Hernandez to jail in 2002 The point is for someone who’s made a mistake to have a chance to reclaim their life.

“Second Chance Act” (2008) - new direction in federal policy

The point is that employment reduces recidivism.

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The Employment Dilemma

Applicant discloses criminal record - employer won’t hire

Worker who didn’t disclose - fired for “false job application”

More than 3 out of 4 employers do background checks on legal agencies’ websites from numerous private search companies from the 3 national credit reporting agencies

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NYS Criminal Records – Basic Terms

Arrest Records Teenagers’ Records Conviction Records

Crimes Felony Misdemeanor

Non-Criminal Offenses Violation Traffic Infraction

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Arrest Records

Employers and public licensing agencies can not

Reject based on arrest w/o conviction

Ask questions about arrests Exception - jobs in law enforcement.

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Teenager Records

Juvenile Delinquent (JD)• Family court (under 16)• NOT a conviction

Youthful Offender Adjudications (YO)• Criminal court (-19)• NOT a conviction

--------------------------------------------------------------------------------BUT Juvenile Offender (JO)

• Criminal court (-19)• IS a conviction

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Strategies – Handling a Criminal Record

Correcting RAP Sheet Errors and Sealing Records

NY Law’s Requirement of Individual Consideration NY Law’s Certificates of Rehabilitation (2 types)

Bonding Program & Employer Tax Credits

Preparation for Job Applications & Interviews

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RAP Sheet Errors

RAP created if person is arrested and fingerprinted

Over 87% of NY RAP sheets contain mistakes. Grade (felony vs. misdemeanor is wrong Charges are listed more than once Disposition is not reported

Why it matters Sometimes, all charges were dropped. Even if conviction, often only for some and /or less serious charges If disposition not present, employer will assume that charges are pending

Request for Record Review” Form Division of Criminal Justice Services (518) 485-7675

http://www.criminaljustice.state.ny.us/ojis/recordreview.htm

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Sealing Records

Arrests not ending in Conviction Can be Sealed Starting in 1991, automatically sealed

Convictions for most Non-Criminal Offenses Can be Sealed Violation Traffic Infraction

BUT Convictions for Crimes Can Not be Sealed

Felony Misdemeanor

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NYS’ Corrections Law Article 23-A

Prohibits Most “we don’t hire offenders” policies covers hiring & retention decisions summary must be conspicuously posted and given to applicants

Applies to public employers public licensing agencies private employers (more than 10 employees)

Requires individualized assessment of qualifications and

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23(a) --- Individualized Assessment

age at time of the offense, any mitigating circumstances

seriousness of offense

time elapsed and record since the offense

rehabilitation efforts and outcomes

how the crime relates to the specific job or license

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23(a) Employers’ Liability Concerns

Art 23-A provides some protection from “negligent hiring” lawsuits

By barring evidence of the worker’s prior conviction

If employer had followed Art 23-A in good faith

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Fair Credit Reporting Act

Under the federal law

If an employer plans to take “adverse action” based even in part on a credit report, he/she must give the person –

a copy of the report a Summary of Consumer Rights, including how to fix errors

before taking that action

http://www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm

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NYS’ 2 Certificates of Rehabilitation

“Certificate of Relief from Civil Disabilities” 1 Felony & any # of Misdemeanors

Can include convictions in other jurisdictions

Can get Immediately upon conviction

From sentencing judge or Division of Parole

“Certificate of Good Conduct” Multiple Felonies & any # of Misdemeanors

Waiting Period C,D or E felony - 3 years A or B felony - 5 years From Division of Parole

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Federal Bonding Program

Encourages employers to hire “at risk” individuals Ex-offenders Ex-addicts who’ve been rehabilitated Program information http://www.bonds4jobs.com/index.html

Covers loss up to $ 25K loss from employee dishonesty Does not cover poor workmanship, injury, work accidents, etc Established in 1966, 99% success rate

Free to employer for 6 months, no deductable Relatively simple application process – need full time job offer with starting date After 6 months employer can continue coverage by paying premiums

NYS Coordinator Elaine Kost 518-485-2151 elaine.kost@labor.state.ny.us

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Special NYS Rules

Unlicensed health care staff NYS Dept of Health – state and federal record checks

Places serving alcohol Waiver is available from NYS Liquor Authority

Commercial Drivers License Hazardous Materials Endorsement

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Limited Driver’s License

Keeping a Driver's License DURING Prosecution

Hardship Privilege which permits driving to/from work, school/and/or doctor

Conditional License AFTER Conviction   Person can drive to / from /during:

work

certain other activities

Must complete Drinking Driver Program http://www.nydmv.state.ny.us/broch/c40.htm

7 sessions, 1 / week, each 2-3 hrs

screening

 

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Tax Credits for Employers

Federal Work Opportunity Tax Credit $2,400http://www.doleta.gov/business/Incentives/opptax/

NYS Workers with Disabilities Tax Credit $2,100http://www.labor.state.ny.us/businessservices/EDSU/EDSU%20WETC.shtm

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Using These Strategies

How To Get and Clean Up Your New York State Rap SheetFree online - http://www.hirenetwork.org/pdfs/NYS_Rap_Sheet_Final.pdf

Employment Discrimination and What to Do About It Guide for NY Counselors of Individuals in Recovery from Alcohol and Drug Dependence, and Ex-Offenders

Free online - http://www.hirenetwork.org/pdfs/Employment%20discrimination%20(NY).pdf

Legal Action Center 225 Varick St. New York, NY 10014

(212) 243-1313 http://www.hirenetwork.org

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Assistance >>>> Preparation

Advocacy Organizations HIRE, Legal Services, Public Defenders, Prisoner’s Rights

Veterans Organizations vets who are lawyers may help “pro bono” (free)

Google / Bing, etc “expunge New York criminal records” private lawyers who will provide representation for a fee

A lawyer helps but isn’t required, preparation is . . .

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Job Applications & Interviews

Prepare to handle the criminal record question Do not leave application question blank or say “will discuss at interview” Do practice interviews (vets in that business)

Answer what is asked truthfully, and know Differences – Crime (felony, misdemeanor) vs. Non – criminal offense Conviction includes suspended sentence, probation, fines, etc.

Give a summary of what happened Be brief, accept responsibility

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Job Applications & Interviews (cont.)

Fully explain what’s changed & provide documentation Military service Rehabilitation / treatment Education / work Community service / church involvement

Provide Federal Bonding information State coordinator’s name, phone and email Program form and description

If not hired, send a letter recounting the above

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Economic Independence Programs

Self employment assistance Business plan development, financial consultation and training -- from experts

For more information Start-Up NY

Syracuse University, Burton Blatt Institute http://bbi.syr.edu/projects/startup_ny/

Entrepreneurship Bootcamp for Vets with Disabilities SU’s Whitman School of Management and 5 other universities http://whitman.syr.edu/ebv/

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Economic Independence Programs

New York Makes Work Pay SU’s BBI, Cornell, New York State

Customized Employment Benefits Management, Tax Assistance, Individual Development Financial Literacy http://www.ilr.cornell.edu/edi/nymakesworkpay/index.cfm

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Slowing the “Revolving Door” Programs

Human services - criminal justice collaboration agencies often struggle serving many of the same people employment a key element in recovery http://mentalhealth.samhsa.gov/cmhs/CommunitySupport/toolkits/employment/

Diversion getting people into treatment services SAMHSA funds a range of program models (800) 311-GAIN National GAINS Center http://www.gainscenter.samhsa.gov/html/

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Positive Signs

Ban the Box Ordinances – public employment Eliminate “Have you been . . . “ from job application Minnesota, San Francisco, Chicago, Baltimore New Haven, Portland Some extend to contractors

State Initiatives MA bill shortens waiting periods to seal records - Governor supports it

Federal “2nd Chance Act” – new national policy Successful reentry is in the public interest

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The Reality

Escaping criminal justice involvement – possible, but difficult

Making the effort can have significant benefits

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Frank McFarren

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Unique Auto Body Whitehall, NY (518) 642-

2945

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