Internet Lets a Criminal Past Catch Up Quicker

By ERICA GOODE

 .http://www.nytimes.com/2011/04/29/us/29records.html

Convicted of robbing a video store in California in 1997, Ayanna Spikes decided to change the trajectory of her life. In 14 years, she has had no further brushes with the law.
The eight months she spent in prison, she said, were “the best thing that ever happened to me,” persuading her to pursue training in medical administration and complete coursework for a degree in psychology at the University of California, Berkeley. At 38, she is a far different person from the confused young woman who strayed into crime, she says.
But employers, initially impressed by her credentials, grow leery when they learn her history through criminal background checks. She has been turned down for more than a dozen jobs since finishing college in 2010.
The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.
Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.
Some, like Ms. Spikes, have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.
Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.
In a 2010 survey by the Society for Human Resources Management, almost 90 percent of the companies surveyed, most of them large employers, said they conducted criminal background checks on some or all job candidates.
Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans.
“We’re spending a tremendous amount of money incarcerating people and then creating a system where it’s almost impossible for them to find gainful employment,” said Adam T. Klein, an employment lawyer with Outten & Golden in New York, a firm that has represented plaintiffs in class-action lawsuits against employers over criminal checks.
Many companies, advocates say, screen out anyone who has a hint of criminal activity in his or her background, in violation of government guidelines that demand that employers take into account the severity of an offense, the length of time that has passed and its relevance to the job in question.
In some cases, they note, people have been turned away because of arrests that never resulted in convictions.
“I understand the employers’ response that, ‘We don’t want murderers working for us,’ ” Mr. Klein said. “What if you just have minor events, like arrests for drug use in college, speeding tickets, D.W.I.’s?”
Employers argue that they already use common sense when they evaluate a candidate’s background and take steps to ensure that they are being fair.
“Advocacy groups are kind of saying that this is the day and age of the sign that says, ‘Convicts need not apply,’ ” said Rod Fliegel, a lawyer at Littler Mendelson, an employment law firm. “But in my experience, that would be taking the exception and presenting it as the rule.”
Mr. Fliegel and other lawyers representing companies said that employers were caught in a bind; they can also be sued if they fail to screen an employee who later harms someone. Some type of jobs — in the securities industry, for example — require that candidates be free of convictions for certain crimes. And when applicants are abundant and jobs are scarce, some employers say that they should be able to pick and choose candidates who carry no legal baggage.
There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964.
The E.E.O.C. has been a plaintiff in several lawsuits over background checks, and the guidelines have led to a raft of lawsuits against companies under Title VII — at least seven are working their way through the courts. One, brought by the commission against Peoplemark, an employment agency, was dismissed because the commission was not able to provide expert evidence to back up the discrimination claim.
At least three lawsuits brought under the Fair Credit Reporting Act, which mandates that employers notify applicants rejected because of a consumer reporting agency’s criminal background check, have been settled for the plaintiffs.
Defendants in lawsuits over criminal background checks have included transportation companies, a charter school, screening companies, a global consulting firm and the Census Bureau.
In New York, where state law regarding background checks is stricter than federal policies, the state attorney general’s office has settled with Radio Shack, ChoicePoint and other companies after investigating them for violations.
Mr. Fliegel and some other lawyers who represent employers argue that Title VII is not an appropriate tool for ensuring fairness for people with criminal records.
“If you’ve read Title VII, it doesn’t say anything about ex-criminals,” Mr. Fliegel said.
But advocates and lawyers for plaintiffs in the suits say that using of Title VII in regard to criminal background checks is well established. Still, many employers suspect that hiring a person with a criminal conviction is a gamble.
Until recently, the available statistics seemed to back up employers’ suspicions: A third of those released from prison returned within three years, recidivism studies showed, and it was assumed that ex-offenders would always be more likely to commit crimes than people with no criminal convictions.
But several new studies by criminologists are beginning to turn that assumption on its head, providing a far more encouraging picture of actual risks posed to employers by those whose crimes lie well in the past. Called “redemption research,” the studies find that the risk that an ex-offender will be re-arrested decreases substantially over time, eventually becoming indistinguishable from that of someone of the same age with no record.
For first-time offenders, this point of “redemption” is reached 7 to 10 years after a conviction. For older first offenders, it comes significantly earlier. For some crimes and for offenders with multiple prior convictions, redemption takes considerably longer.
The studies have been cited in some lawsuits over criminal background checks. Taken collectively, they indicate that “it is no longer accurate to say that individuals with criminal records are always a higher risk than individuals without a criminal record,” said Shawn Bushway, an associate professor of criminal justice at the University at Albany, one of several researchers who have conducted redemption studies.
Ms. Spikes, who is still searching for a job, said she hoped she would eventually find an employer who could overlook her background.
“I’ve been told that I’m the kind of person that can pick myself up, dust myself off and give it a go again,” she said. “What’s most important to me is that the story has somewhat of a happy ending.”