Out of Trouble, but Criminal Records Keep Men Out of Work | The New York Times
Michael Hugh Mirsky landed a temporary job in December rolling stacks of crated milk and orange juice to the loading docks at a commercial dairy in central New Jersey. He’s not making much, and he doesn’t know how long it will last, but after 30 months of unemployment, he counts himself lucky. Mr. Mirsky is a convicted criminal, and work is hard to find.
A series of unfortunate events that began in 2012 when Mr. Mirsky lost a job as a Verizon technician culminated last year in a guilty plea for resisting arrest. He is facing the foreclosure of his home; his church has told him that he cannot serve as an usher; he is thousands of dollars in arrears on child support payments for his 8-year-old daughter. Even as the economy improves, Mr. Mirsky has been unable to find a permanent position so he can start rebuilding his life.
“Even your lower-paying fast-food jobs are now doing background checks,” he said. “How can I pay child support if I can’t get a job?”
The share of American men with criminal records — particularly black men — grew rapidly in recent decades as the government pursued aggressive law enforcement strategies, especially against drug crimes. In the aftermath of the Great Recession, those men are having particular trouble finding work. Men with criminal records account for about 34 percent of all nonworking men ages 25 to 54, according to a recent New York Times/CBS News/Kaiser Family Foundation poll.
The reluctance of employers to hire people with criminal records, combined with laws that place broad categories of jobs off-limits, is not just a frustration for men like Mr. Mirsky; it is also taking a toll on the broader economy. It is preventing millions of American men from becoming, in that old phrase, productive members of society.
“Prior to the prison boom, when convictions were restricted to a smaller fraction of the population, it wasn’t great for their rehab potential but it wasn’t having a huge impact,” said Devah Pager, a Harvard professor of sociology. “Now such a large fraction of the population is affected that it has really significant implications, not just for those people, but for the labor market as a whole.”
Employers, of course, have always taken an interest in the histories of prospective employees. Banks do not want to hire embezzlers; trucking companies do not want drunken drivers. Schools and security companies don’t want to hire criminals of any kind. But the easy availability of online databases lets employers investigate everyone — indeed, it makes hard to justify not looking. Surveys show roughly nine in 10 United States employers check databases of criminal records when hiring for at least some positions. Some focus solely on felony convictions; others also consider misdemeanors or arrests.
Rising concern that background checks are being used to systematically exclude applicants with criminal records is fueling a national “ban the box” movement to improve their chances. The name refers to the box that job applicants are sometimes required to check if they have been convicted of a felony or a misdemeanor. Fourteen states and several dozen cities have passed laws, mostly in recent years, that generally require employers to postpone background checks until the later stages of the hiring process.
Georgia became the latest state to join that list when Gov. Nathan Deal signed an executive order Monday. It described the new policy as a matter of fairness and a way to strengthen the state’s economy by expanding the pool of workers. New Jersey passed its own “ban the box” law last year. It is scheduled take effect March 1. So help is on the way for Mr. Mirsky, too.
Living on Savings
Mr. Mirsky, 43, made a six-figure annual salary as a phone line technician in the decade before he lost his job in July 2012. He was fired after clashing repeatedly with a supervisor. The company declined to comment.
He spent a few months searching for a new job in his old industry, but there are not a lot of other companies in central New Jersey hiring people to repair copper phone lines. So in January 2013 he trained at a local community college as a heating and air-conditioning specialist. After graduating in December 2013, he was offered a chance to join the Pipefitters Union.
In the meantime, however, he was living on savings and gifts from friends. A woman from his church delivered occasional meals; a friend tucked $50 into a Thanksgiving card; another man hired him to unload a truck at his restaurant. He lived in a basement apartment in an old house in Port Murray, N.J., he bought in better days, beneath the ruins of his ambitious renovation plans. When I visited in January, the winter wind whistled through the broken windows and unfinished walls upstairs. Animal droppings speckled the floors. A stainless steel range and refrigerator sat in their original shrink-wrap. He had not paid his mortgage in three years and he was battling to prevent, or at least delay, foreclosure.
He also fell behind on child support payments, and under New Jersey law a warrant was automatically issued for his arrest. He says he knew nothing about it until police came to his home in June 2014. According to the police report, Mr. Mirksy struggled, and the officers knocked him down, handcuffed him and charged him with resisting arrest.
It was the first time that Mr. Mirsky had ever been arrested. A few months later, he pleaded guilty to a single felony. The immediate penalty was just $411 in court costs. The enduring problem is that he has a criminal record.
The Pipefitters Union had arranged a series of job interviews for him in May, June and August 2014. He also submitted about 30 applications to other employers last year, and received a couple of interviews, but no offers.
He is convinced nothing has panned out because of his legal troubles — the warrant, the arrest and the conviction.
“I’m 43 years old, not recently employed, and that doesn’t look great,” he said. “But mostly they don’t want the heartache.”
Of course, people rarely find out why they didn’t land a particular job. For the last several years, job applicants have vastly outnumbered job openings. Being fired from a previous job doesn’t help. And the issues that land people in legal trouble may also make them less attractive as applicants. But Ms. Pager, the Harvard sociologist, has found in her research that having a criminal record by itself is often a significant impediment.
In 2001, Ms. Pager sent pairs of black men and white men to apply for low-wage jobs at 350 businesses in the Milwaukee area. She picked sets of men who looked alike and were comparably well spoken and she gave them similar résumés — education, employment history — except that one member of each pair was told to claim that he had served 18 months in prison for a felony drug conviction.
She repeated the experiment in New York in 2004, sending pairs of “well-spoken, clean-shaven young men” to apply for 250 different jobs.
In both cases, she found men who reported criminal convictions were about 50 percent less likely to receive a callback or a job offer. The difference was significantly larger in the black pairs than in the white pairs. White employers seemed to show more sympathy for the white applicants, Ms. Pager said, and most of the employers were white.
Employers seemed to use the reported convictions as “a proxy for reliability and trustworthiness and a broader range of concerns beyond simply whether they would be aggressive,” she said. “Faced with a large number of applicants, this was one easy way of weeding out applicants.”
Lucia Bone worries that background checks are getting a bad rap. Ms. Bone is the founder of a nonprofit called Sue Weaver Cause that urges employers — particularly those that send workers into homes — to check the backgrounds of new hires and to conduct regular checks on existing employees. She says that many companies are not being careful enough.
The nonprofit is named for her sister, Sue Weaver, who was raped and murdered in 2001 after she hired a local department store in Orlando, Fla., to clean the air ducts in her home. The two men sent to perform the work both had criminal records, but the store had not ensured that its subcontractor conducted a background check. A few months later, one of those workers returned, killed Ms. Weaver, then set her house on fire.
“I very strongly believe that everyone has the right to work, but not every job is right for everyone,” Ms. Bone said. “It is the employer’s responsibility to protect both their business, their employees and their customers.”
The ready availability of criminal records databases has fueled the perception that it is irresponsible for employers to ignore available information. Local governments increasingly put criminal records online, and private companies like HireRight, Sterling BackCheck and LexisNexis Risk Solutions aggregate those records, offering almost instant results. In the early 1990s, less than half of companies routinely checked criminal histories. Now relatively few refrain.
“Criminal background screening is an important tool — nearly the only tool — that employers have to protect their customers, their employees and themselves from criminal behavior,” Todd McCracken, president of the National Small Business Association, testified before a congressional committee last year. Local, state and federal governments have embraced the same logic, writing background checks into professional licensing requirements and post-9/11 security regulations.
These policies affect a growing number of people. About 10 percent of nonincarcerated men had felony records in 2010, up from 4 percent in 1980, according to research led by the sociologists Sarah Shannon of the University of Georgia and Christopher Uggen of the University of Minnesota. The numbers are much higher among African-American men: About 25 percent of nonincarcerated black men had been convicted of a felony, up from 9 percent in 1980.
The problem with criminal background checks, in Mr. Uggen’s view, is a lack of deliberation about what employers should be looking for. Some employers ask about convictions for felonies; some ask only about narrow categories of felony like violent crimes or sex crimes. Others ask about any arrest whatsoever. “We haven’t really figured out what a disqualifying offense should be for particular activities,” he said.
Mr. Uggen was himself arrested few times as a Minnesota teenager for fighting and other minor sins but, when he submitted his college application to the University of Wisconsin, he was not asked and he did not tell. Now a professor, he said that some of his own students were not able to escape the past so easily.
Colleges routinely ask applicants about criminal history. So do landlords.
“For somebody of my generation who had a brush with the law, they were able to quickly put it in the rearview mirror and move on,” said Mr. Uggen, who is 50. “Now I have graduate students who maybe 10 years ago they were convicted of a crime and for them to try to get an apartment, it’s a huge barrier.”
The quality of the information used in background checks is another cause for concern. One of the most common problems is that databases may include arrest records without any indication of whether a person was convicted.
In 2008, for example, the government began to check the backgrounds of 1.2 million workers at the nation’s ports. A law passed after the 9/11 terrorist attacks mandated the exclusion of anyone with a conviction in the last seven years, and 59,000 workers were excluded as a result. But 30,000 of those workers filed appeals arguing their records were inaccurate, and in 25,000 of those cases, a more careful examination found no evidence of a conviction, according to a subsequent review by the Government Accountability Office. That’s worth repeating: When the background check system identified a felon, it was wrong at least 42 percent of the time.
And the United States Equal Employment Opportunity Commission warned in 2012 that the systematic exclusion of people with criminal records was effectively a form of discrimination against black men, who were disproportionately affected. It has filed lawsuits charging such discrimination by companies including BMW, Dollar General and Pepsi.
Jeffrey Menteer, who is 26 and lives in northwestern Pennsylvania, has applied for 15 jobs since June, when he completed a six-month prison term for a gun possession charge. A company that makes screen doors told him it might hire him after he gets off parole in October. Other than that he has found nothing. He said his criminal record was making it hard to find work.
“Between that and my race, black living in a white town, it’s tough,” he said.
He worked steadily as a logger for about five years before he was arrested. He made about $800 a week except in the spring, the off-season for the tree-cutting business. Now he lives with his parents, and the only money he makes is from occasional work shoveling snow.
“I don’t really blame them, but I wish they’d be a little more open-minded,” he said of local employers. “People do change.”
These concerns, and a wave of stories like Mr. Menteer’s, have catalyzed efforts to legislate protections.
The first “fair chance” law was passed by Hawaii in 1998. The law prohibits most private employers from inquiring about criminal history until after making a conditional job offer. Then the offer can be revoked only if the offense is relevant.
In just the last few years, the list of jurisdictions with similar laws has expanded rapidly, although the details vary: Some apply only to public sector jobs, others allow background checks at earlier stages in the hiring process, and they all include long lists of exemptions.
Still, the trend is clear enough that several of the nation’s largest employers, including Walmart, Home Depot and Target, have also stopped asking about criminal records at the beginning of the job application process.
Breaking the Cycle
The current debate, however, is largely about mulligans: giving people a second chance after a fairly isolated mistake. It does not address the underlying cycles of crime and incarceration that plague many men in lower-income communities.
Gregory Payne, 52, worked for a company that made insurance manuals in Santa Monica, Calif., after graduating from high school. He said he lost the job when he needed to care for a daughter who was ill. “I had two kids and an apartment, and the only fast money I could see was” dealing drugs, he said. He was caught, went to prison, got out, said he couldn’t find work and returned to dealing. He served 16 months, then three years, then another three years and a final four years on top of that. “You keep doing the things that get you the money because you can’t get other jobs,” he said.
About seven years ago, he left his life in Venice, on the Pacific Coast, and moved with a newborn son to California City, about 100 miles inland. He said he hadn’t used or sold drugs since moving, but employers don’t seem any more interested. “Your record hurts you, man,” he said. “In certain cases, I understand. They got a right to say no if you’re stealing and robbing people. I wouldn’t hire you myself. But people who went up for drugs?”
Last year, California passed a “ban the box” law but, at least for Mr. Payne, it came too late. He qualified for federal disability benefits two years ago and said he had no immediate plans to seek work.
Mr. Mirsky is more hopeful that New Jersey’s new law will help him find work.
He says he hopes that he has hit bottom. In November a friend put him in touch with an agency that places workers in short-term jobs. He said that most of the other men also have criminal records. He worked five days at a brewery, a half-day at a coffee plant and a few weeks at the dairy. When that job ended, the company liked him enough to offer him a second temporary job. But on the January morning he was scheduled to start, just minutes before he planned to leave the house, the police arrested him again on a new charge of not paying child support.
This time he went quietly, and the judge let him go. And the dairy, after a few phone calls, said he could start the next day.
It felt, Mr. Mirsky said, like the first lucky break he’d had in more than four years.