Law & Psychiatry: Assisting People in Recovery Who Have Criminal Records to Reach Their Employment Goals

Although the extraordinary incarceration rate in the Unites States over the past few decades is well known, the recent estimate that nearly one in three 23-year-olds has been arrested is startling (1). Similarly, although the “criminalization” of psychiatric disability has long been noted in this journal and elsewhere, news reports are documenting increasing numbers of people with mental illness in local jails, even as facility populations have started to decline (2). The systemic issues are daunting, as are the range of problems facing individuals with serious mental illness. Symptom-related behaviors trap some in a “revolving door,” and a single criminal record can create long-term employment barriers.

Such barriers affect the two-thirds of people with mental disorders who identify employment as an important goal (3). Although employment specialists who work with these clients report that criminal records are an increasing barrier (4), recent developments in civil rights law described in this column provide strategies that can improve outcomes.

Overview

A recent one-year study of new enrollees at a community mental health agency found that more than half had been arrested (5). Arrest is a fateful event: a lifetime record is created when the person is booked and fingerprinted, with entries made at subsequent stages of the case and at any future arrest and criminal proceeding. The state and federal criminal record systems are vast and complex and fraught with misidentifications and omissions (for example, failure to note that charges were dropped) (6).

People with criminal records face job barriers from legal prohibitions, as well as from employers’ concerns and biases. In regard to legal prohibitions, various federal and state laws bar people with certain criminal convictions from specific occupations (for example, police officer) and government-issued occupational licenses (for example, barber). Some rules are designed to protect vulnerable citizens, such as children, and others limit access to secure facilities, such as airports. But many have no clear rationale. In Texas, for example, a felony or misdemeanor conviction bars a person from more than 170 jobs, including truck driver and plumber (7). Such prohibitions often last a lifetime.

The second job barrier is employers’ preferences. Most employers check the background of job applicants or newly hired staff (8), usually by obtaining credit reports, which contain information about criminal justice involvement. However, the information is frequently inaccurate. Federal law requires that the report be provided only with the person’s permission (9), which many employers make a prerequisite for job applications, and that the person receive a copy. Other sources of background information are unregulated, including companies that compile and sell online access to mug shot photographs taken after arrest (10).

Employers’ reasons for checking applicants’ backgrounds and rejecting those with criminal records are not surprising. Concerns about theft, reliability, and attitude are common. Some worry about “negligent hiring” liability if an employee harms a customer (such law suits are rare). Perhaps the most common reason stems from generalized stigma: “Why should I take a chance on a bad apple?” As in other realms, stereotypes limit or preclude individual consideration.

Social science research has shown that racial bias plays a role. In studies that have used two actors given identical qualifications and criminal records who apply for the same job, a white applicant is three times more likely than an African American to get a call-back from the employer (11). Such findings are one reason the federal Equal Employment Opportunity Commission (EEOC) has taken an important step to protect job applicants with criminal records, which is discussed below.

Overcoming job barriers

Agencies offering employment services are likely to be familiar with the traditional approaches to addressing barriers related to having a criminal record. Legal mechanisms exist at the state level for seeking changes in mistaken or incomplete criminal records, and federal law provides tools for obtaining credit reports and correcting errors. A number of states have procedures to limit adverse impacts of a criminal record (such as expunging or sealing the record and issuing certificates of rehabilitation), but the procedures usually have narrow eligibility criteria (for example, only for persons with a single conviction) and long waiting periods (12). These tools do not necessarily require the person to have legal representation, but using them effectively demands perseverance. The Federal Bonding Program underwrites state-operated systems that provide employers with certain indemnification protections for theft (13), and federal (and some state) tax credits are available for hiring former offenders (14), although many employers find the record-keeping rules burdensome. In short, established tools are sometimes helpful, but using them can involve time, effort, and expense.

Recent developments aimed directly at how criminal records are evaluated can be very helpful to applicants who otherwise meet the qualifications for a position. For example, “Ban the Box” rules are spreading across the country, usually in the form of a city ordinance adopted in response to a local social justice campaign. These rules prohibit questions about criminal records on job applications. Employers can ask about criminal history later in the hiring process. The rules seek to prevent the categorical denial of interviews to applicants because of a criminal record. The initiatives are generally limited to city jobs, but some extend to private employers or apply statewide (15). Of note, national employers such as Wal-Mart and Target have voluntarily adopted these policies (16).

The most important of the recent developments is the EEOC’s 2012 Enforcement Guidance (17), which is aimed at affording applicants with criminal histories a full assessment by potential employers, including consideration of rehabilitation efforts. It is well-established law that general practices with an adverse, disparate impact on minority group members violate the Civil Rights Act of 1964 (18). The Enforcement Guidance, which reflects court rulings and EEOC findings that employers’ use of applicants’ criminal records has such impacts, applies to the state laws and occupational licensee prohibitions discussed above and to the hiring practices of organizations with 15 or more employees. Owing to the breadth of its coverage, the Enforcement Guidance affects hiring procedures involving persons of all racial and ethnic backgrounds who have a criminal history.

Provisions of the EEOC Enforcement Guidance

Arrests not resulting in convictions, the Enforcement Guidance states, are unproven accusations and may not be considered by an employer. In some circumstances, however, the underlying conduct may be considered. For example, when an individual is applying for a child care position, a history of having been fired from a school for inappropriately touching a student, even if the arrest did not lead to prosecution, can be taken into account.

Conviction records may be reviewed by an employer with regard to the type of offense, the time that has elapsed and evidence of the person’s rehabilitation, and the relevance of the offense to the job being sought. Although it is clear that employers may not categorically reject applicants with convictions, there is no simple formula for applying the specified factors.

Regarding the time that has elapsed, recent research on recidivism shows that an offender who remains crime free for a period of time—between three and eight years, depending on a number of factors—has the same likelihood of arrest as a member of the general population (19). This evidence concerning crime desistance, which challenges many state law bans and employer assumptions, is cited in the Enforcement Guidance and public statements by U.S. Department of Justice officials on the appropriate use of applicants’ criminal records by employers (20).

In assessing the types and relevance of offenses, the appropriate focus is on specific job duties (for example, handling cash versus repairing cars) and the circumstances in which they are performed (for example, in customers’ homes versus on an assembly line). A given type of conviction may raise concerns about certain roles. For example, a person with a conviction involving substance use within the past year may not be a good candidate for stocking a hospital’s pharmacy shelves overnight, although he or she may be appropriate for a clinic receptionist job. The protection of vulnerable people is not compromised by individualized assessment of potential caregivers. For example, the Affordable Care Act mandates that states establish background checks for nursing home direct care staff and that each system use the Enforcement Guidance factors (21). Failure to provide individualized consideration of a criminal record can constitute denial of the constitutional right to due process, as a Pennsylvania appellate court ruled on behalf of a school employee in 2012 (22). Individualized consideration incorporates the key interests of both employers and people in recovery from mental disorders.

Employers hire people they perceive to have the requisite job qualifications, interpersonal skills, and motivation to help their business. An interviewee in recovery from a mental disorder who has a criminal record may wish to emphasize why success in the job is important to his or her future. Applicants must determine for themselves how to talk truthfully about past problems, briefly outlining and accepting responsibility for criminal offenses and describing the path to recovery. It may be useful to conduct mock interviews, with questions about a criminal record asked in multiple ways by volunteers from diverse backgrounds (for example, business people and peer specialists). Reviewing a cell phone video of these sessions can help applicants improve interviewing skills and increase self-confidence.

Relevant materials should be assembled, including certifications from training programs and documentation of rehabilitation (for example, letters of recommendation from employers, counselors, probation officers, teachers, and clergy and records of educational, military service, and volunteer community activities). A person with a criminal record involving substance use may want to provide copies of recent, clean drug test reports. Mental illnesses and past substance use are within the scope of the Americans With Disabilities Act, and disclosure by a job applicant is discretionary. However, if reasonable accommodations are desired, such as a work schedule that permits clinical appointments, the topic should be discussed after a job offer.

The Enforcement Guidance structures the preparation for job searches and interviews in a manner that complements psychiatric rehabilitation. The focus is on the present rather than the past, on hope and persistence, and on strengths-based and self-advocacy approaches. Given the value of employment in recovery, the Enforcement Guidance provides individuals and staff with an important resource.

Looking forward

Efforts are under way by government agencies and community advocates to improve criminal justice outcomes, including the community reentry and employment of former offenders. Although few businesses make it a priority to provide people with “second chances,” recent research shows that more employers hire applicants with criminal records than might be expected. Of 2,000 human resource managers surveyed by CareerBuilders in 2012, one-half had hired applicants with a criminal history (23). Respondents emphasized the importance of applicants being honest about their criminal convictions and what they had learned from the experience. Moreover, a 2013 national survey found that 68% of employers had reviewed the EEOC Enforcement Guidance issued the year before, and 32% had already changed their hiring policies (24). It is anticipated that as a result of the Enforcement Guidance, an increasing number of businesses will change their practices over time.

In practical terms, the Enforcement Guidance is most likely to be formally enforced when a large employer engages in a pattern of noncompliance that has discriminatory impact on many minority group members, as in a 2012 settlement of an EEOC case against Pepsi Beverages for $3.13 million. The basic principles of the Enforcement Guidance provide applicants and employment specialists, particularly those doing outreach to businesses, with the opportunity to reframe some hiring discussions.

Although the new legal policies will have an impact on barriers related to having a criminal record facing many clients who want to work, employment success often involves addressing other challenges, from computer skills to behavioral stability and homelessness. The level of effort demanded to secure employment can result in inattention to issues related to job retention. Discussion of the client’s history can help identify risk factors that could lead to termination of or resignation from a hard-won job. Motivational interviewing is an intervention to help a person address ambivalence about changing behavior—usually substance use. It can also be used for issues such as adapting to smoke-free workplace rules, holding unrealistic income expectations, or accepting the boss’s authority. Staff members in many types of programs are receiving training in motivational interviewing, including all of Washington State’s vocational rehabilitation personnel (25). Schedule disruptions that contribute to job loss can often be anticipated—for example, back-up plans can be made for transportation or child care. The money woes prompting doubts that working is worth it, particularly for low-wage earners, may be partly addressed through financial training in budgeting or other approaches, such as using the earned income tax credit (26), or creating an individual development account (27). Assistance in implementing these approaches may be available from community partners. In short, success in retaining a job, as in finding one, often requires persistence from the client and tailored support from service providers.

Having a criminal record can limit the prospects for obtaining the particular type of work a client wants, a core goal of recovery services and employment programs. The priority, of necessity, may be succeeding at a “gateway” job, thereby creating a new type of record and with it the prospect of a meaningful work life. Fortunately, recent developments in civil rights law can increase the chances for that goal to be realized.