SUMMARY: COLLATERAL CONSEQUENCES WORKGROUP
Session 3: October 31, 2016
The workshop was directed by its chair, Judge Alex Williams, with Glenn Fueston (GOCCP).
Members present:
- Hernandez, Shaina, Greater Baltimore Committee
- Huffington, John, Living Classrooms
- Kerr-Donovan, Yariela, Johns Hopkins HR Department
- Megna, Christi, Department of Health and Mental Hygiene
- Netus, Marsha, America Works
- Sessa, Rachel, Department of Public Safety and Correctional Systems
- Wilkins, Victoria, Department of Health and Mental Hygiene
Judge Williams opened the meeting stating that he wanted to continue finding the means whereby offenders transitioning back into society would be supported, not limited. He announced that his original plan was to break out into four subgroups that would report back to the large group; however, due to a low number of participants, he felt it best to conduct a general discussion.
Two legal consultants, Shakisha Morgan and Kue Lattimore-Williams, distributed a 3-page handout to each of the workgroup members. The seven introductions and questions on the handout were projected.
#1: Maryland law does expand on the federal Fair Credit Reporting Act (“FCRA”) by prohibiting consumer reporting agencies from including in their reports “[r]ecords of arrest, indictment, or conviction of crime” if more than seven years have passed since the date of disposition, release, or parole. However, that time limitation does not apply to reports used in connection with the “employment of any individual at an annual salary which equals or which may reasonably be expected to equal, $20,000.00 or more.” Thus, although these provisions may reduce the likelihood that old convictions will pose a barrier to an individual’s employment in an entry level position, these same old convictions may limit the individual’s opportunity for career advancement. (WCL)
Question 1: Should Maryland law expand the FCRA even further to employers by applying the time limitations to reports used in connection with employment of any individual at an annual salary which equals, or which may reasonably be expected to equal, $20,000.00 or more?
Comments:
Initially, there was no response when the first question was asked, and Judge Williams reminded the participants that he had sent them a summary and asked if they had looked at it.
- Limiting income keeps employees poor.
- Segregating out employees who make over $20,000.00 could dampen an employee’s incentive to be as productive and diligent as possible.
- Getting feedback from small businesses is advised.
#2: Federal law is more protective with respect to non-conviction criminal history information more than seven years old, which under FCRA may not be included on consumer reports used to consider individuals for employment in positions paying less than $75,000 per year.
Question 2: In what ways can Maryland law expand on the federal law and prohibit employers from considering convictions and non-convictions that are more than seven years old for all applicants regardless of salary?
Comments:
- Lattimore Williams said limits on time from conviction (7 years) can be considered regardless of salary.
- According to Senate Bill 269 signed by Governor O’Malley, the Commissioner has been given little leeway regarding crimes of dishonesty (fraud, breach of trust, money laundering).
#3: Work Opportunity Tax Credit (WOTC) is a Federal tax credit available to employers for hiring individuals from certain groups who have consistently faced significant barriers to employment. Maryland Department of Labor, Licensing and Regulation (DLLR) has incorporated an electronic system for private sector employers and agents to enter tax credit applications (and submit the applications, for legal form holders), track the status of submitted applications, print letters and certifications, and view any power of attorney that may exist. (MDDLLR website)
Question 3: What data currently exists from this online system regarding the “success” of the incentive program and which private employer applicants that has been [sic] approved for the tax credit?
Comments: Little data is available.
#4: Maryland’s Long-Term Employment of Ex-Felons Tax credit expired December 2011 (MD Comptroller website). According to the Job Opportunities Task Force Guide, this tax credit is currently awaiting implementation.
Question 4: What are some other incentive programs that Maryland can adopt (i.e., partial wage reimbursement, additional tax credits, and training funds for employers who hire person with convictions?)
Comments:
- more on-the-job training
- evaluations of returnees’ work ethics
- more effort helping returnees find employment
- internships/apprenticeships
- transportation to jobs
- child care credits
- helping returnees obtain the paper work needed to apply for a job, such as birth certificates and social security cards, especially before their actual release
- Each returnee should have a case management package from the start of incarceration which includes all of his/her needs.
- Generally, beneficial programs for prisoners are needed before release, as well as more support after release.
#5: The Federal Bonding Program, sponsored by the United States Department of Labor, is an incentive program designed to encourage employers to hire or retain for employment individuals who have certain risk factors in their personal background. Maryland DLLR provides information regarding this program via their website to employers and job seekers.
Question 5: What, if any, data is available on this program? What private employers are insured by the fidelity bonding?
Comments: More data needs to be collected.
#6: “A blanket ban-the-box policy doesn’t make good business sense for small business,” said Elizabeth Milito of the national office of the NFIB, which represents about 35,000 small and independent businesses nationwide. Most businesses aren’t the size of Wal-Mart or Target, she said, or state or city government. Some don’t have human resources departments. She said businesses that have to adhere to federal or state laws on background checks – such as transportation or security firms – shouldn’t have to put off asking people about their criminal history. To ask small employers to wait until they’re ready to offer somebody a job before asking about a criminal record is “kind of wasting the business owners’ time,” she said. (Huffington Post article, 5/22/2014).
Question 6: Does a blanket ban-the-box policy make good business sense for small businesses or job applicants, who may later have their job offer rescinded after the employer discovers their criminal history? What additional criteria should be considered once a job applicant with a criminal history is offered conditional employment?
Comments:
- If an employer makes a diligent search, the information that is supposedly banned can often be found; trying to restrict information will be a monumental task.
- There may be a need to restrict public access to certain information regarding returnees’ records.
- he effect of Ban-the-Box nationally is it may give returnees opportunities to present themselves based on their applications; however, during the interview process, the interviewer may ask for the applicant’s criminal history information.
- Fueston noted that to “ban-the-box” may exacerbate problems for others (e.g., employers). There is no solid data to determine if ban-the-box helps or hinders at this point. We need to obtain more information about its effects.
- Perhaps a more effective strategy would be to “move the box,” making it more difficult to obtain information on criminal history.
#7: Maryland Department of Public Safety and Correctional Services Division of Parole and Probation ensures parolees, probationers and those on mandatory release from the Division of Correction are overcoming the “revolving door” of the criminal justice system and upholding the individual requirements set forth by courts and the Parole Commission.
Question 7: What data is available from DPP regarding successful reentry of those with criminal convictions?
Comments: More data needed.
After covering the written seven questions on hand-out, other questions were posed and comments made. These questions were not in writing.
The following points were made in the general discussion that followed:
- Due to the Justice Reinvestment Act, there is a new offender case management system that is able to better track recidivism.
- We need an evidence-based tool that is risk and needs based.
- We need to shift resources to better support individuals.
- We need more data and support regarding the difficulties posed for returnees to comply with parole and probation requirements, such as a returnee’s need to find reliable transportation or to take off work to meet requirements. Some agents do shift their work hours to better accommodate returnees, but this is not required.
- For returning parents, we need to incentivize some kind of credit that helps them obtain reliable day-care.
- More supervision agents are needed.
- County detention centers need to be encouraged to do more for returnees.
- More focus on needs-based supervision is necessary.
- More technology, such as kiosks, is in place to improve supervision.
- For returning parents, we need to incentivize some kind of credit that helps them obtain reliable day-care.
- A point system for state projects that provide transitioning support for returnees needs strengthening.
Attorneys posed the following question pertaining to licenses: Should licenses satisfy basic consumer protection standards, should the licensing agency explain via writing the specific item in a background check report that is considered occupation-related and provide a copy of the report, and if an adverse action is taken should the licensing agency provide notice to the applicant if an adverse action is taken?
They noted that Licensing Boards have the authority to deny licenses if an applicant was found guilty of a felony or of a misdemeanor connected to the license being sought. If licensing authorities deny licenses to applicants, an applicant should be notified in writing, be made aware of any available appeals process, and be advised as to the reasons for his/her denial. Appeals may or may not be granted. A criminal background check is required for 15 occupations.
Judge Williams asked if licensing boards allow the Attorney General to recommend or oppose licenses. The response was that the specific assistant attorney general who is assigned to a particular board gives guidance. Judge Williams noted that there is a need for more flexibility in the process. More effort is required to balance needs and risk levels. More research regarding the 24 jurisdictions in the state should be conducted. This research should include the following: What makes one jurisdiction better than another, and how do we decrease inconsistency and increase uniformity among jurisdictions?
As of now, statute determines requirements for criminal background checks. Information is held 3 years after expungement in the Criminal Justice Information System. However, there are instances whereby supposedly expunged information remains. Judge Williams stated case summaries are not always reliable, complete, or up-to-date, and given the nature of modern technology, it will be difficult to prohibit access to records if a licensing board or other individuals want to find them. Many criminal investigations are completed out-of-state, especially when an employee is applying to a larger company or corporation that is not headquartered in the state of Maryland. When these checks are not done through our state, Maryland law may not be applicable. Judge Williams suggested that limitations should be mandated by court order so they cannot be used against individuals. We should encourage the Rules Committee to work on remedying these problems.
Mr. Huffington expressed concern about some employers offering part-time jobs and not upgrading to full-time. Employers sometimes take an incentive stipend for 90 days and then let the employee go. He called this program “90 days of half price labor” which he described as “pimping our community.” Ms. Hernandez noted that offering part-time vs. full-time work may be a problem for any individual – not just returnees. It was recommended that community and re-entry resources should be in place and connected throughout the state so all returnees can take advantage of them, regardless of where they reside in Maryland.
A member commented that the JRA is good, but the state still needs to take the lead (create an office) to coordinate efforts being made. There is a disconnect between efforts behind the walls and efforts outside. There are models from other states we should study to remedy this problem. Another member worried that employers may rebel if they feel they are “put under a microscope.” A member noted that Alabama has a good program we could study regarding issues of juvenile records.
It was noted several times during the workshop that there is a real lack of data at present.
Thanks to MAJR reporters Helen Mealey and Deborah Friese.
