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The Formerly Incarcerated Fight for Right to Work

The State of New York and Governor Andrew Cuomo will expand a program incentivizing the hiring of the formerly incarcerated. The pilot program, titled “Work for Success”, has achieved positive results over past two years and will become standard state policy, Cuomo announced. According to the State, 1,646 people have been linked to jobs in 1,015 businesses since the program’s February 2012 launch.

The program has developed client matching procedures to assess recidivism risk and training needs. Employers may earn up to $2,400 in federal tax credits for each formerly incarcerated employee hired. To obtain the full amount, employees must work 400 hours during the tax year. Furthermore, businesses are eligible for “six months of a free fidelity bond insurance policy…which covers theft by employees with a criminal record.” While such a program may reflect the shifting moral social perception of incarceration, it is not without corollary financial benefits for taxpayers. According to the State, reducing recidivism would save approximately “$25,000 each year for each ex-offender that does not re-enter prison in NYC.”

In essence, New York has made an innovative attempt at bypassing an unsteady field of local, state, and federal law regarding criminal background checks. Currently, employers must navigate a complicated labyrinth when considering past criminal offenders for employment opportunities. The Equal Employment Opportunity Commission, the agency charged with enforcing federal employment laws, has made steps to clarify the law with mixed success.

In its 2012 Enforcement Guidance, the EEOC encouraged employers to first use a “targeted” screen of criminal records and then an “individualized assessment” of those screened out. V.B.9. However, Judge Roger Titus recently chastised the EEOC in a case brought against an employer that allegedly relied on a policy resulting in a discriminatory impact on African-Americans. Ruling against the EEOC, Judge Titus noted, “Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States.” EEOC v. Freeman, 2013 BL 210284 (D. Md. Aug. 09, 2013).

As for New York, state law is more expansive than the EEOC guidance. Article 23-A §752 of the New York Correction Law prohibits employers from denying an applicant employment because he was convicted of a crime unless: (1) there is a direct relationship between the offense and the employment sought; or (2) granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the public. In making determinations, employers must consider a list of factors, some of which include (1) the public policy to encourage the employment of persons previously convicted; (2) the specific duties and responsibilities related to the employment sought; (3) the bearing the offense will have on fitness or ability to perform; (4) the seriousness of the offense; and (5) information regarding rehabilitation and good conduct. Art. 23-A §753.

As for now, it appears that New York will continue its dual-pronged effort: (1) enacting laws to protect criminal offenders from discrimination; and (2) lessening the burden on employers by offering financial incentives.

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