NEWS

Should you know if new hire is a convict?

Fatima Hussein
fatima.hussein@indystar.com


INDIANAPOLIS — Brooke Cash said if ex-offenders are effectively denied job opportunities because of their past, they likely will resort to what they know best to survive.

Fortunately, the 36-year-old Anderson resident found a job. Cash served three years in and out of county jail for theft and other crimes, and she is working off the final months of her house arrest.

"This place saved my life," she said, referring to her employer, RecycleForce, a nonprofit recycling company that specifically hires individuals with criminal backgrounds to dismantle electronics and recalled items for precious materials. The goal is to help workers acquire skills and certifications.

Cash is one of 70 million people in the United States who have a prior arrest or conviction record, or nearly 1 in 3 adults, according to the National Employment Law Project.

Transitional employee Brooke Cash photographed at Recycle Force in Indianapolis, Wednesday, Feb. 16, 2017.

The sheer size of the population with a criminal past is making some companies and governments rethink whether to ask job applicants a particular question: "Have you ever been arrested or convicted of a crime?"

Countless county and city governments, including Indianapolis, have enacted measures — called "Ban the Box" laws — aimed at encouraging, or even requiring, employers to remove the check box that asks if applicants have a criminal record from their hiring applications. Most, but not all, state and local laws are limited to potential public employees.

However, an Indiana Senator has proposed a bill that would effectively prevent Ban the Box laws from being enacted in Indiana, and it could be effective as early as July. It has passed through the Senate and is headed to the House for further consideration.

Sen. Phil Boots, R-Crawfordsville, authored Senate Bill 312, which provides that a "political subdivision" — the state or a municipality — cannot prohibit an employer from asking a job applicant about his or her criminal history during the initial application for employment.

But if there is angst by some advocates for former inmates over Boots' bill, there also is some cautious optimism over an amendment to the bill. Co-authored by Sen. Chip Perfect, R-Lawrenceburg, the amendment is a new business liability reform measure that would give employers legal protection from any potential illegal actions of employees with criminal backgrounds.

Boots told IndyStar this method would "streamline" Indiana's hiring laws pertaining to individuals with a criminal record.

Critics say the action pre-empts local governments' decision-making authority. For instance, If passed, Boots' bill would abolish the Indianapolis Ban the Box ordinance passed in June 2014. Some Democrats and nonprofit officials say Boots' bill also disproportionately affects minorities.

Others, however, from both the activist and business worlds, say the bill would be a win-win for formerly incarcerated people looking for work, as well as business owners concerned about hiring them.

Some would go further to suggest that businesses should be offered tax credits as enticement to hire people with checkered backgrounds.

It's an issue that draws contention from many directions.

A new way of addressing 'Fair Chance hiring'

There is a larger societal incentive to encourage employment opportunities for those with a criminal record. A study by the nonpartisan Urban Institute found that former offenders employed within two months of release were less likely to be incarcerated a year later.

That is one reason why Gregg Keesling, president of RecycleForce, only hires formerly incarcerated people who are trying to improve their lives.

"It is the greatest moral challenge of our time — how we address this issue," said Keesling, a dual U.S. and Jamaican citizen whose company employs, trains and certifies roughly 325 former Indiana inmates per year.

Recycle Force president Gregg Keesling photographed at Recycle Force in Indianapolis, Wednesday, Feb. 16, 2017.

Still, Keesling is torn on Ban the Box, which he said is a "Band-Aid on a gaping wound" to the problems that face people who are released from jail and cannot find a job.

"It won't make a huge impact," he said, "because companies will still screen individuals and find their criminal records."

Keesling advocates for business liability tort reform, along with federal and state tax credits, that would incentivize hiring. It is not an easy idea to sell, he said.

Peer mentor Anthony Gammons recycles old televisions at Recycle Force in Indianapolis, Wednesday, Feb. 16, 2017. "It gives me the opportunity to move forward with my business. I remodel homes on the side," Gammons said. "As long as I have steady income coming in, I'm able to buy the material I need to move forward."

The business liability portion of SB 312 was offered as an amendment to Boots' bill during its first reading in committee earlier this month, and was added after second reading in the Senate. It then was approved.

The amendment says that the criminal history of an employee cannot be used as evidence against an employer if the crime "does not bear a direct relationship to the facts underlying the civil action."

The Indianapolis Chamber of Commerce helped author the language of the amendment.

Mark Fisher, chief policy officer for the chamber said, "we want to remove barriers for people to find work, without burdening business with extra regulation."

Fisher said in recent years other states have passed similar business liability measures. Since 2010, Colorado, Connecticut, Minnesota, New York and Texas have passed negligent-hiring liability laws. Fisher said the chamber used Colorado's language to help Perfect write the amendment.

Kenneth Sondik, an Indianapolis attorney who writes nationally about Ban the Box issues, said its a "good start, but the language of the amendment is weak." He argues the bill does not effectively protect business owners from liability; however, "no bill is perfect."

Andrew Bradley, a policy analyst with the Indiana Institute for Working Families, said tort reform is not enough; there is a need to pass Ban the Box laws as well.

"This (tort reform) will help encourage employers to hire people with records," Bradley said, "but it leaves municipalities without tools to deal with populations of returning citizens."

"And it will do nothing to solve the underlying problem of pre-emption," Bradley said.

Taking power away from localities 

Indianapolis' ban-the-box ordinance prohibits the city and its vendors (that have 10 or more employees and contracts with the city) from asking applicants to disclose a criminal history: either on a job application or during the first interview.

There are, however, exceptions to the ordinance. Places whose background checks mandated by state or federal law, such as teachers and certain licensed trade professions, will be exempt because such questions are asked as part of the certification process.

The ordinance drew the support of former Mayor Greg Ballard. Since then, many GOP lawmakers have welcomed Ban the Box initiatives — from the Koch brothers in 2015 to Kentucky Gov.Matt Bevin, who just this month signed an executive order that would ban the box on positions in Kentucky's executive branch.

"What's troubling to me, is (Boots) wants to prevent local people from making their own decisions," Kessling said. "Pre-emption, I don't agree with."

Kevin Brinegar, head of the Indiana Chamber of Commerce, said that the bill would create a uniformity of laws throughout the state, which he said is good for business. Brinegar's organization helped craft Boots' legislation.

"Employers tend to have one employment application and they would strongly prefer to be able to have the choice to be able to ask about felony convictions in multiple variations," Brinegar said.

Other areas of the country are attempting to enact bills similar to Boots'.

In December, Texas Republican Paul Workman introduced House Bill 577 in that state's legislature that bars local governments from enacting laws that prohibit, limit or regulate private employers’ ability to look into prospective employees’ criminal histories.

But bills such as these worry Cash. Would such laws ultimately prevent her and others from further success in the workplace?

She hopes not.

"There is no better feeling," she said, "than having a job."

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.