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New 'Ban the Box' Ordinance Aims to Help More Locals Find Work

May 23, 2014

Deborah Blair sits on the floor on the second story of her suburban home. As the afternoon sun shines through the window, she thumbs through a suitcase full of papers. The green canvas case is full of overlapping piles of thick folders filled with résumés, photocopies of certificates of accomplishment, and job applications. Blair says there are 200 job solicitations here, but none has led to a job offer.

Despite her bachelor’s degree and her certification as an alcohol and substance abuse counselor trainee, full-time work is eluding her. And Blair suspects she knows why.

There is a box on the application that says 'Have you ever been convicted of a felony?'; and I have. So I have to check the box.

"There is a box on the application that says 'Have you ever been convicted of a felony?' and I have," says Blair, as her usual wide smile recedes. "So I have to check the box."

In 2006, Blair was arrested for Driving While Intoxicated on more than one occasion. Now there’s a felony on her record.

Even with her degrees, Deborah Blair has found full-time employment elusive.
Credit Jim Day

It was what she calls "a terrible, terrible" time. After her husband’s suicide and the loss of her home and all of its contents in house fire, Blair’s drinking became an escape. She acknowledges her alcohol use was out of control. It led to court ordered rehab and a 6 month stint in jail.

It’s hard to know definitively whether it’s the felony on Blair’s record that’s kept her from finding a full-time job. If she’s right, and employers denied her a job based solely on her criminal record, they broke both New York state and federal employment laws.

Rochester City Councilman Adam McFadden sponsored legislation to delay when an employer can ask whether an applicant has ever been convicted of a crime.
Credit Michelle Faust

Rochester City Councilman Adam McFadden thinks many employers use the check box on job applications to illegally discriminate against perspective job seekers. That’s why he sponsored a recently passed Rochester City Ordinance to ban the question until after an applicant makes it to the interview process.

Rochester is the third city in New York State to 'Ban the Box,' a movement that has affected state, county, and city policies around the nation. McFadden says the new law will protect employers from a wide-spread illegal practice.

"HR professionals have called me personally, and said 'Hey, we’ve always had two piles. Ones that have that box checked, that’s one pile and the ones that don’t is another and we don’t even look at the ones that check the box,'" McFadden says.

In April, Bed Bath and Beyond settled with State Attorney General Eric Schneiderman over this issue.  A human resource representative from the retail chain of home goods stores stated at a job fair that they do not hire individuals with a criminal background. Representatives from the Attorney General’s office say they know there are other employers breaking the law in the same way.

The new law does allow employers to conduct background checks and to consider whether specific crimes committed in the past have a bearing on the job sought.

"So, like law enforcement, you couldn’t be a police officer if you’re a felon. If you were a pedophile, you couldn’t work in a day care center. I get that!" McFadden explains.  "I’m not asking people to ignore doing a background check, I’m just asking people to give the people applying for a job an opportunity to say, 'This is who I am. I’m not that box on the application; this is me as a person.'"

The councilman wanted his brother, Paul, to be seen as a person and not be judged solely on his criminal record when he was released from prison more than 10 years ago.

Paul McFadden speaks at a public forum in support of 'Ban the Box' legislation, before its passage.
Credit Jim Day

Paul McFadden says the path that led him to spend all of his twenties in prison began when he was 9 years old.  He came out committed to make up for the lost time and do right by his family.

A job at a local neighborhood convenience store looked like it might be a start. The manager offered Paul McFadden a job, but when he arrived to work the next day the owner told he was rescinding that offer.

Paul McFadden recounts the story, "He said, 'A person like you will never work inside of here! You've been a criminal all of your life! You've been a gang member all of your life!… If I had it my way I wouldn't even allow you to step foot inside of my store!'"

"And I gave him one last look and I said, 'This will be the last time. This will be the last time that somebody judges me at 31 years old for things that took place when I was 14, 15, 16 years old. This will be the last time!'"

And Paul McFadden explains it was the last time. Today, he works at Action for a Better Community as Youth and Gang Intervention Coordinator. His job is directly related to helping teens switch to a productive path and avoid prison.

On May 13, 2014, the city held a forum to gauge public opinion about the 'Ban the Box' legislation (or 'Foot in the Door' legislation, as Councilman McFadden prefers). That night, only one person, Barbara Campbell, spoke publicly against the move. Campbell says parents should intervene and keep their children from becoming criminally involved so they won’t have a box to check. 

Rochesterians came out in support of the 'Ban the Box' legislation.
Credit Michelle Faust

As the 'Ban the Box' movement has crossed the country, representatives of businesses and chambers of commerce have expressed concern that similar laws put more regulatory burden on business owners. The question of liability has been raised: What if the person hired hurts someone while on the job? Will my business be more likely to be sued for not hiring a person with a criminal history?

The city of Buffalo banned the practice of asking about prior criminal convictions on job applications last summer. Since the ordinance went into effect in January, employers have been examining the best way to comply with the law.

Buffalo Attorney Erin Sylvester Torcello concentrates her practice in labor and employment law. She says employers find it tricky to keep up with different rules in several different municipalities.

"Companies with multiple facilities, both within and outside of the city, it’s raised issues as to how they have to change their application process. And do they have to do it for all facilities or just those within the city limits," says Torcello. "How is that going to play out from an implementation standpoint?"

Torcello says the nuance and subjectivity that goes into hiring can put an employer’s staffing decision in a legal "grey-area."

A white boy's prank is a poor boy's felony. And it's not just a black boy or an African American boy or a Latino, because our jails are beginning to fill up with poor white people, especially poor white women.

The Rochester business community has been mostly quiet on the issue. The Rochester Business Alliance has not taken a public stance. But one merchant, who only provided his first name, David, echoed Campbell’s comments at the forum, "Our young people have to know that if they commit a crime (especially a violent crime) it’s going to stay with them. It’s going to affect the rest of their lives.  If we go forward with this proposal, aren’t we saying there aren’t consequences?"

Retired Police Lieutenant, Cynthia Herriott, believes there should be consequences to misbehavior, but says we cannot be punitive indefinitely.  According to the officer of 24 years, when people have completed their prison time if we do not accept them back into productive society they are likely to recidivate. 

"That means making sure you are on the right path to be sustainable when it comes to being able to take care of your family and find shelter and put your kids, children, if you have them, on a better path than the one you took. I’m all for that," says Herriott. "Because I know, at the end of the day, if you don’t have options, the community is going to be affected."

Herriott says when a former offender is not given the opportunity to work they’ll be a tax-payer burden, either requiring some form of assistance survive or in prison.

Councilman Adam McFadden takes it a step further.  

"Put the people to work, give them a livable wage, and watch the crime rate go down. Don't put people to work, don't give them any resources or access to anything and watch the crime rate go up. It's very simple," the Councilman says.

"So, we have to find jobs for them because I don't want them robbing me. I don't want them committing more crimes," McFadden continues. "I don't want them hurting people. I want them working. And I think most people will say, 'Hey, I would rather have that type of person on a job working than having idle time and thinking about how to hurt you.'"

Nearly everyone is concerned with curtailing community violence. Half of the 2.4 million people in U.S. prison landed there for a drug offense. Disproportionately, people of color are more likely to be arrested and serve longer sentences.

In 2013, the Obama administration acknowledged failings in the 'war on drugs' and the practice of minimum sentencing for non-violent drug offenses.

"In recent years, black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable, it is shameful," U.S. Attorney General Eric Holder said in a speech last year.

Precious Bedell says she's grateful for a job that allows her to work with formerly incarcerated women, but it took years of unemployment and underemployment before she landed it.
Credit Jim Day

Federal changes in drug enforcement policies are intended to tackle similar problems that the ‘Ban the Box’ movement looks to correct. The enforcement policy changes are aimed at repairing disparities on the front end (at the time of conviction) and 'Ban the Box' initiatives look to give a more equal footing after release.

Supporters of the Rochester ordinance explain it’s meant to partially address some of the repercussions of economic and racial disparities in the legal system.

Precious Bedell is a Project Health Counselor at Woman Initiative Supporting Health. She says that job came as a blessing after many years of unemployment and underemployment based on a past felony conviction. Bedell is not the only one that says the wealthier a person is, the less likely they’ll be arrested for committing an offense that would land a poor person in jail. And race is also a factor.

"A white boy’s prank is a poor boy’s felony," says Bedell. "And it’s not just a black boy or an African American boy or a Latino, because our jails are beginning to fill up with poor white people, especially poor white women."

Rochester’s new ordinance makes a small change in the paperwork applicants’ supply to employers, but the intentions behind the change go much further. Time will tell if the law makes a difference in local unemployment rates.