The New York City Department of Education's "Problem Code" is an Unlawful Flag on an Employee's Fingerprints
In NYC, anyone can be charged with anything, for any reason or no reason. Human Resources puts a flag into an employee's personnel file for getting an Unsatisfactory/Ineffective rating, raising his or her voice, slipping and falling into a student by accident, getting excessed or discontinued, or raping a child in the class closet. If charges are filed against an employee, they are considered not hirable by the DOE, forever.
If you work for the New York City Department of Education, your fingerprints may be flagged for any reason, at any time, and you will not be told when, how, or why. See my blog posts:
Down The Rabbit Hole: The NYC Department of Education's "Problem Code"
The OPI Problem Code and How To Get Off of It
Labels - How Good are They?
I have been researching the "Problem Code" or the "Ineligible/Inquiry List" since about 2004, when I heard about the "Monitoring Unit" inside the NYC Department of Education. See:
Silencing Opposition: The Manual for Principals and The Monitoring Unit of the NYC DOE
Silencing Opposition: Education Policy Implementation Becomes a Matter of National Security
I filed a Freedom of Information request for the data in the Monitoring Unit, and my request was declined. Why? Because the data was personal social security numbers of employees, and I could not get private SS#. So then I started looking into lawsuits and cases where a Plaintiff sued to get off of it. The information that someone is coded is available to any administrator who has or gets access to the NYC Department of Education EIS (Employee Information System) Database.
Flagged EIS File
I find it astonishing that any employee can have his/her fingerprints flagged as a security risk, and may not know it. This employee will be able to continue working as long as charges are not filed against him/her, and then he/she tries to get nominated for another position within the DOE or with a vendor who does business with the DOE. The employee will not be hired because the school will not get any money to pay this person, and HR will not allow the person to work unless cleared.
No one can ever get off of it unless he/she creates a professional PR package and gives this to OPI/HR in the interview, and convinces HR that he or she "can" take a new position, a settlement is agreed to where "removal of the problem code" is written into the agreement, or the flagged employee sues, and wins a judgment from the Court. OPI interviewers will tell you this shocking news when you go in for your interview. I have been attending those interviews with blacklisted DOE employees for almost 7 years. I have been successful with getting the employee cleared to work a specific job about half the time. The others we help in Court. What must happen is that the blacklisted person must 'convince' the so-called OPI "investigator" that he/she is not the criminal listed in the database, and did not do the horrible thing that got him/her on the list in the first place. Basically, what I do is a public relations plug.
From my Blog in 2015:
The OPI Problem Code and How To Get Off of It
Can the DOE consider a problem code in future hiring decisions which was placed in a teacher’s file from a prior probationary termination when the U-rating from that termination was reversed on appeal?
Posted on May 4, 2017
Yes. Petitioner, a probationary assistant principal, received a U-rating after findings of misconduct were made against him. At the time a problem code was placed on his file. On appeal the misconduct findings were reversed and the Court, in 2011, ordered that U-rating and the problem code be removed from his file “to the extent that it was supported by the unsubstantiated conduct.”
In 2014 the petitioner brought a second proceeding challenging the DOE’s maintaining the problem code and claimed that it made him ineligible for promotion.
The DOE argued that the 2011 decision only removed the problem code in so far as it was based on the unsubstantiated misconduct but otherwise had a right to maintain the code.
The Appellate Division, First Department agreed with the DOE holding that petitioner’s discontinuance of probation, which was upheld in the prior proceeding, could be maintained in his file since it was not based on unsubstantiated conduct and was never challenged by petitioner after it was affirmed by the prior court.
The Court wrote, “Even if his job prospects are more limited, petitioner is not prohibited from seeking a position that does not require a certificate of eligibility, i.e., a non-supervisory position; nor is he prohibited from applying to employers outside respondent’s authority.”
IN RE MILCIADES PEPIN, PETITIONER-APPELLANT, V. NEW YORK CITY DEPARTMENT OF EDUCATION, RESPONDENT-RESPONDENT. 3336, 100727/14. APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, FIRST DEPARTMENT. DECIDED MARCH 7, 2017.
The principals in the New York City school district (Manhattan and all boroughs) have internet access through PETS or GALAXY to the PC or Ineligible List. Any time you apply for a job on the Open Market and do not get a response even though the job is in your license area, you might be on the Problem Code/ineligible inquiry list.
If someone has made a complaint about you at any time, or you have received an unsatisfactory/ineffective rating on your teaching practice, you are flagged. Proof of the flag on your fingerprints can come in many forms, but most often when you apply for a job and the principal never responds to your resume, or nominates you for a position and then suddenly withdraws the nomination.
If this happens, then you must email the Office of Personnel Investigations at OPIinfo@schools.nyc.gov., and request the application to get off of the PC List. You will get 3 forms: a Release, the C-105 Regulations, and a form requesting that you fill out with the past 10 years of employment. Ask for an interview. When you are given the date for the interview, you need to create your portfolio of information about you. This is every commendation, award, citation for excellence that you have ever received. This is your Good Stuff Support. It is vital that you create this. By the way, the reason, I think, Peter Ianniello will not give out his email address is because he made an email error and I wrote about it on my blog:
NYC Department of Education Human Resources Manager Peter Ianniello Sent 400 Names, Social Security Numbers and Other Private Information Via Email on February 15, 2017
At OPI, (65 Court Street, Room 200) the interviewer will ask you for any information you think you should give. As I have written elsewhere, please do a professional job on your submission of documents! We spend alot of time on making the presentation of You look great.The interviewer is usually warm and fuzzy, but will tell you that the decision is not up to him/her, but to Kathy Rodi. You will hear back in 5-10 business days.
If you are denied clearance, you cannot apply again for 12 months.
This is outrageous. I think it is shocking that the NYC Department of Education criminalizes a "U" rating, a mistake, or a false claim against an employee. This is ugly stuff, because the effect is this stigma, the "Problem Code" is so destructive to a person's professional and personal life, forever.
New York State Correction Law Article 23-a states that no one can be discriminated against if he/she has a prior criminal conviction and has served time or been punished for that crime. The NYC DOE never clears a name permanently. IF, and only IF you or your representative (that's what I do) convince the OPI interviewer that you should be hired by job X, and after several years you leave job X for job Y, you must go through the entire process again.
The discipline process for educators in NYC at all levels (paraprofessionals to Superintendents) is wildly out of control, and in our opinion, random and arbitrary. Tenured teachers' rights as well as those rights of probationary individuals are ignored. Speed is what is valued, (click the link to see my information on the 3020-a process as described by former Chancellor Carmen Farina) and the timelines for a quick termination of the charged employee is in a book of rules that no one in the public is allowed to see, only the Chancellor's "army" - the 3020-a Arbitrators, the Department Attorneys and NYSUT Attorneys who prosecute/represent employees at 3020-a arbitration.
The Petition I wrote for Rosalie Cardinale which won in Richmond County Supreme Court, Cardinale v NYC Department of Education, validated the argument I and our ADVOCATZ Attorneys have been submitting to 3020-a arbitration and the Courts since about 2005. I have been the paralegal in approximately 107 3020-a arbitration hearings, and every single one has a Motion to Dismiss For Lack of Subject Matter Jurisdiction and/or its' arguments.
If you’ve been found to be incompetent, have been given an Unsatisfactory/Ineffective evaluation, if you've raised your voice, slipped and fell by accident, blew the whistle on a fellow employee or administrator, hit a child or raped a child in a closet, you will have a "PC" ("Problem Code") put onto your fingerprints. You are now without a security clearance to work for the Department or any of the DOE's hundreds of vendors. Daycare workers are also losing their jobs.
This is what I wrote for my blog NYC Rubber Room Reporter in 2012:
Why does the UFT and NYSUT allow the infamous "No Hire", "Ineligible" or "Inquiry" List to continue?
This list seems to be taken from the 1950's, where Joe McCarthy placed people who were communists, or he thought they were communists.
This is my understanding of the "Ineligible/No Hire List":
Whenever a complaint is lodged against an employee, whether or not it is true or proven, or an employee gets a U rating, this person gets a code number next to his or her name at the Office of Personnel Investigation (OPI) now under the supervision of Michelle Nacht and "CY" the former principal of the Washington Heights trailers ("rubber room") at 51 Chambers Street, 12th Floor. (UPDATE: OPI is at 65 Court Street, Brooklyn, NY Room 200 under the Supervision of Kathy Rodi).
I have been asking how and why this list exists, for years. Approximately 5.
No one at the DOE, UFT, or NYSUT, have given me a good explanation.
In the case of Philomena Brennan (see interim order below of New York State Supreme Court Judge Alice Schlesinger) Judge Schlesinger ordered Theresa Europe to give her how people get put onto the list and how these individuals get off. Ms. Europe immediately took Ms. Brennan off the list rather than give any information, which made this part of the Article 78 moot.
I think we need answers.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of PHILOMENA BRENNAN, Petitioner, Index No. 112977/09 Motion Seq. No. 001 For An Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against-NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
Before this Court is an Article 78 petition wherein the petitioner Philomena Brennan is asking the Court to grant relief vis-a-vis two issues. One issue has to do with her desire to withdraw her resignation, as a teacher with the New York City Department of Education. The resignation occurred on September 5,2007. The second relief sought is her removal from an Ineligible/lnquiry list where she was placed on February 4,2009.
Some background is necessary. Ms. Brennan was a tenured teacher at that time she was assigned, in 2006 to Frederick Douglas Academy in Brooklyn. At some point, at the end of the school year, she indicates that she was approached by the principal Tamika Matheson who gave her an unsatisfactory rating, the first one she had ever received. Again, according to the petitioner a discussion between the principal and herself was held and pursuant to that discussion, Ms. Brennan decided to formally resign from her teaching position. In the ensuing period she did some substitute teaching. In January of2009, after a discussion with others, she decided to take steps to withdraw her resignation.
Again, according to Ms. Brennan, on January 30,2009 she returned to the Frederick Douglas Academy in order to talk to the principal. She said she saw the principal, was escorted to her office and told to wait a few moments and about ten minutes later she was arrested, handcuffed and charged with the Misdemeanor of Trespass and the Violation of Harassment.
Pursuant to rules, which Ms. Brennan knew, she immediately reported the arrest to the Department. Then, as a result of the arrest, she was placed on an Ineligible/lnquiry list. The presence of one's name on the list makes that person ineligible for rehire or for a teaching assignment. On June 10,2009 all charges were dismissed against Ms. Brennan. Shortly thereafter, either the next day or very soon after, Ms. Brennan made a formal request to have her name taken off this list. At the time she made that request she produced proof that all charges were dismissed. To this day, May 12, 2010, Ms. Brennan still has not been informed of whether or not her request to have her name struck from the list has been decided. On June 21, 2009 and again in January 2010, Ms. Brennan had what could be categorized as a hearing, but in actuality consisted of a short meeting wherein she again presented documentation that the charges against her were dismissed in their entirety.
She has also made attempts to withdraw her resignation. However, with regard to that relief, there is a condition for such withdrawal, the condition being that the teacher in petitioner's status must show the Department that there has been a written request to fill a vacancy by a regional manager of the department. In other words, it is not simply a ministerial act for the Chancellor to permit a resigned teacher to withdraw that resignation. There is a condition, as stated above, that first must be met. But of course, as petitioner argues, it is impossible for Ms. Brennan to meet this condition as long as she remains on the Ineligible list.
The respondent argues that with regard to the petitioner's request to have her name struck from the Ineligible list, that request via her Article 78 Petition is time barred. Counsel urges that the four month statute began running on February 4, 2009, when she was first placed on the list. That would mean that the moment that the charges were dismissed on June 9, she would have been barred from asking to have her name removed from the list. Frankly, this is an argument that makes no sense whatsoever. The petitioner pursuant to the responsibilities of a teacher knew that she had to report an arrest and did so. She was not legally aggrieved by her placement on the list in February because the charges were still pending. The time that she became aggrieved was after the charges were dismissed and after she made a demand to have her name removed from the list. Even then she was not yet aggrieved, because she was never given a decision denying her request to remove her name from the list. Therefore, she was not time barred in June 2009 when she made her first request and even though this Court does not have to reach this issue, she is not even time barred now. And certainly when she brought her petition on September 14, 2009 she was not time barred. (Biondo v. New York State Board of Parole, 60 NY2d 832 (1983)).
With regard to the withdrawal of her resignation, a resolution of that issue must await a determination of the Ineligible list issue. Therefore, the Court is directing the following.
First, the Department of Education is ordered to make a decision with regard to the continuation of Ms. Brennan's name on the Ineligible list within thirty days from today or by June 16, 2010 and notify petitioner promptly of this. The Department has no right to keep Ms. Brennan in a perpetual state of limbo by not making this decision. If the decision is adverse to her, clear reasons must be stated. I am adjourning this matter until July 7,2010 at 2:15 p.m. for further consideration of what relief is sought after a decision has been reached.
This decision constitutes the interim order of this Court
MAY 1 2 2010
Many employers perform a background check on potential employees. You may be denied a job because of your criminal background, and it is the employer’s right. They may check to see if you have been arrested in the past seven years or if you’ve ever been convicted of a crime. However, in certain states employers cannot deny you the job based on your record unless they find a correlation between the details of the conviction and it’s relation to the work.
If you have a Problem Code, prior charges, any discipline, etc., don’t lie about it; if they find out about your record, you could be fired and will be ineligible for unemployment benefits. In addition, lying about your record actually can be a crime in itself.
Explaining your criminal background history to a potential employer doesn’t necessarily mean you will be denied the job. Try to emphasize how you’ve changed from when you committed the "crime" and stay positive. Also, make sure you have references that emphasize your character. Finally, be realistic about what kind of crimes can affect your ability to get certain jobs. It’s best to be honest and prove how you’ve moved on and learned from your experience.
Convicted felons ending up homeless due to criminal background policies at apartments
by AJ Walker, August 7th 2019
Boxed In: How a Criminal Record Keeps You Unemployed For Life
People like Luis Rivera are being locked out of the formal workforce forever thanks to one youthful mistake.
By Kai Wright, The Nation, November 6, 2013
This article was reported in partnership with the Investigative Fund of the Nation Institute.
Luis Rivera had some peace of mind for about five months, from late fall of 2010 through early spring of the following year. That’s the closest thing he’s seen to financial stability in more than twenty years.
“I got hired for a wonderful job. It was a clerk/porter/doorman position at a high-rise classical building in the East Village,” he recalls wistfully. Rivera, 44, has a wife of twenty-five years and three teenage daughters. They live up in East Harlem, where the Puerto Rican–born New Yorker grew up and has spent much of his life. He’s ferociously proud of his marriage and children; his back straightens and his tone turns serious when he talks about his family, like a man who’s managed to achieve something he’s been told he can’t accomplish. Yet looking back on those five months as a jack-of-all-services for wealthy downtown hipsters, Rivera still gets excited about an opportunity that tore him away from home at all hours.
“When they needed somebody, they would call me in the middle of the night and I would say, ‘Yes!’ Because I needed a job. And the pay was excellent,” he brags, pointing to his $17 hourly wage for part-time work. “I was next to be hired in a position there permanently.”
The new position held promise that Rivera could finally work just one legit job—on the books, with steady hours and a steady paycheck—rather than hustling to piece together part-time informal work, as he’s done his entire adult life. But that promise hadn’t yet been realized. He was still at the mercy of his employer’s whims. If they called, he worked; if not, he didn’t. So when the superintendent of a building across the street mentioned that his crew was looking for part-time help as well, Rivera put in his name. While applying, he was honest to a fault.
“I made the mistake of trusting,” Rivera says now, shrugging. “I explained to this guy that I have a record from 1990-something. But I explained that I paid the price. I’m clean—gimme a chance. He gave me his word of honor that he would not tell.” But word travels fast when you’re an ex-con. Suddenly, the upscale building at which Rivera hoped to build a future stopped giving him shifts at all.
“So I made a phone call and asked to speak to them,” he explains. He says his boss told him, “We found out you have a record. And you can’t work here, due to the fact that this is a fancy place—anything could happen.”
At age 22, Rivera says, he committed a burglary in the Bronx. He was a lousy criminal and soon got caught. The judge didn’t make him serve any time, just released him to his parents’ custody and gave him five years of probation. Within two years, he’d earned release from probation as well. But the conviction has nonetheless stalked him ever since. “Twenty years later, it’s still there.”
Rivera is part of an uncounted population of formerly convicted or incarcerated people trying to find work in a hostile economy. They are failing, by and large, thanks to the illegal but still widespread practice of employers rejecting applicants or firing workers solely because they have criminal records. A growing movement is pushing states to “ban the box,” or more closely regulate when and how employers can ask about criminal records on job applications. The movement has logged some victories: in October, Target, the nation’s second-largest retailer, announced that it would stop asking the question of prospective employees. The move comes after Target’s home state of Minnesota passed “ban the box” legislation—one of ten states to do so, according to the National Employment Law Project (NELP). But the way that many companies screen for criminal records is already barred by federal law.
Back in 1987, the Equal Employment Opportunity Commission declared that blanket bans on hiring people with criminal records were a Civil Rights Act violation. The EEOC noted that the law bars not only overt bias based on protected categories like race, but also seemingly neutral policies that have the effect of reinforcing racial disparities So it told employers that they can consider criminal records only as one factor in hiring, and then only when the conviction is directly related to the work. But Congress is most responsible for undermining this guidance. Following 9/11, lawmakers issued blanket bans on former felons working in a broad range of transportation jobs. States followed suit, and the list of banned occupations grew exponentially: private security guards, nursing home aides, just about any job involving kids. Former felons are now categorically barred from working in more than 800 occupations because of laws and licensing rules, one study estimates.
Partly in reaction to this growing list, and partly in response to the simultaneous explosion of the background check industry, the EEOC issued an updated guidance in 2012. The new guidance didn’t change the core idea—that blanket hiring bans based on criminal records have a disproportionate impact on black and Latino workers and thus violate the Civil Rights Act; instead, it offered employers updated details on how to stay on the right side of the law. In sum: if you conduct background checks, your hiring systems must include a granular method of confirming their accuracy and considering the specifics of a person’s case. The experience Rivera describes is just the sort that would not pass muster.
This summer, the EEOC showed its willingness to enforce those rules. In June, the watchdog filed separate suits against BMW and Dollar General. BMW’s subcontracted hiring firm had imposed a blanket ban that not only affected new hires but led to the firing of many longtime employees. In Dollar General’s case, one of the plaintiffs had been denied work because of a six-year-old conviction, which drew the EEOC’s scrutiny not only because the practice is illegal, but also because the woman had previously worked for a different retailer in the same type of job without incident. “That’s huge,” says Maurice Emsellem of the National Employment Law Project. “The guidance is one thing, but all this activity surrounding the guidance—that shows they’re enforcing it.”
If so, the EEOC has got its work cut out for it. There’s no firm number on the population of workers with criminal records, but the NELP estimates that there were 65 million in 2010—a stunning 28 percent of the adult population. In 2006, the Justice Department spitballed the number at 30 percent of working-age adults. A great many of these people have faced background checks. In explaining its updated guidance last year, the EEOC cited a 2010 study showing that 92 percent of large employers run background checks.
The millions of people who likely get locked out of the job market as a result of their records aren’t just sitting around. They’re churning through formal and informal part-time work, fueling a shadow economy akin to the one that often exploits undocumented workers. In this case, the problem isn’t the papers that workers lack, but those they can’t shed. The impact is similar nonetheless: billions of dollars in lost productivity, forfeited tax revenue for cities, rampant exploitation by employers, and a cascading series of bans and exclusions from civic life that make it almost impossible for these workers to achieve a stable economic existence. And all of these problems are concentrated in already struggling black and Latino neighborhoods.
Much has been said about the dramatic rise in the US incarceration rate over the past three decades. But it’s difficult to overstate either its scope or the intensity of its racial disparity. After decades of maintaining a largely steady level, in 1973, in the wake of the civil rights movement’s tumult, the incarceration rate began rising sharply. By 2000, 3 percent of the US population was either locked up, on probation or on parole—a rate unparalleled worldwide. As Michelle Alexander, author of The New Jim Crow, has demonstrated, this trend disproportionately affects people of color—the Justice Department has estimated that a third of black men and nearly a fifth of Latino men born in 2001 will go to prison in their lifetime—and now underpins the stark racial inequity found throughout US society.
Marijuana has become the engine driving that inequity. This past summer, the ACLU reported that black Americans are four times as likely as whites to be arrested for marijuana possession, despite reams of research showing no racial disparity in marijuana use. In New York City, this year’s Democratic mayoral primary was dominated by outrage over the New York Police Department’s practice of “stop-and-frisk,” a program by which the NYPD has indiscriminately detained and searched huge numbers of black and Latino men under the guise of hunting for illegal guns. The NYPD’s arrest records suggest that the primary outcome has been to generate marijuana possession busts; in 2012, according to a New York Civil Liberties Union analysis, the program produced a six-to-one ratio of weed arrests to guns recovered.
Shapriece Townsend found out what this can mean for a young man’s work life while walking home in Brooklyn one night last year, just before his twenty-first birthday. He says two plainclothes officers stopped him and found a baggie of weed in his pocket. Townsend spent the next four nights—including his birthday—locked up and waiting to see a judge. This fact is controversial in itself, since the New York state legislature decriminalized the possession of small amounts of marijuana decades ago, so long as it’s not in plain view. But stop-and-frisk data suggest that Townsend’s experience is typical: his weed wasn’t a crime until cops stopped him and fished it out of his pockets. “I lost a job because I missed a day at work,” Townsend explains, still frustrated by the experience. “I told my boss what happened, and he said, ‘Well, you should’ve called me.’ I couldn’t—I was locked up!”
Albert Martinez, however, is the type of guy the NYPD says it is actually hunting with these searches. He’s a 22-year-old black New Yorker raised in East Harlem’s public housing projects. He split his time between his mom’s apartment, where he slept in the living room to allow his two sisters a bedroom, and his grandma’s apartment, where he found some breathing room. They had food and shelter, he says, but not much else. It’s the seemingly little things that stick in his emotional memory: the fact that he could never have white clothes because they wore out too visibly, or that his mom constantly rearranged the furniture to give herself the impression of having something new. “It just irked me,” he says of her ritual. “I never understood that, until after I got locked up.”
As a teen, Martinez took a vow to avoid poverty. By 17, he was working more than thirty-five hours a week as a grocery clerk while still going to school. He was a month away from getting into the union at his store when he got fired, thanks to a beef with another employee. “After that, I started hustling,” he says. “I was selling weed—nothing major. I was still going to school, never dropped out. And I got arrested for carrying a firearm.”
Martinez is baby-faced, with short braids and wisps of fuzz on his dark chin, but he’s a hulking presence at over six-foot-three and with a linebacker’s build. He considers this heft a liability on the street; it made him a target for people with something to prove. So he started carrying a gun. “It was just a precaution,” he says now, “being prepared for the worst—and a pessimist, kinda.” In December 2010, the cops stopped and arrested him after finding it on his person. Martinez fought the case just long enough to graduate from high school, then accepted the prosecutor’s deal of two years in prison followed by a year and a half on parole.
He came home this past April, hoping to go straight to work. First he had to find a place to live, a challenge immediately complicated by his conviction. The knock-on effects of a criminal record are far broader than just job bans. A drug conviction will keep you from getting federal student loans, grants or work study. Several states also bar people with drug-related felonies from food stamps and welfare. And cities have passed a proliferating number of ordinances banning people convicted of certain crimes from a range of public spaces, including parks. But among the more striking bans is in public housing.
In New York City, the housing authority can reject a family’s rental application or evict them if any person in the home is convicted of one of several crimes. Families can appeal the decision to a board and ask it to consider the particular circumstances, but the process is daunting. “The housing authority doesn’t have a particularly transparent track record on treating people fairly in these decisions,” complains Legal Aid chief attorney Steven Banks, “and certainly doesn’t have a transparent record without a lawyer.”
So Martinez couldn’t go home—not that he wanted to anyway. His girlfriend had given birth while he was locked up. Their daughter was born premature, weighing just one pound, two ounces, and she required oxygen and a tracheotomy tube to live. They had survived by piling into Martinez’s mom’s apartment with his sisters. But Martinez was dead set on his disabled daughter not sleeping on the same couch that he’d surfed his whole life, even if the city had allowed it. It took some doing, but they convinced the city that they were homeless in order to be placed together in a shelter apartment.
Martinez is young and, despite all this, optimistic. With the help of the Osborne Association, he applied and got into nursing school. He’s working part time as a janitor for Osborne while looking for something long-term, and he’s determined to make his industriousness pay off. “If you holding me accountable for something I paid for, then shame on you,” he says, confident that it will all be ancient history by the time he graduates. “They’re not supposed to deny me employment for a felony I caught five years ago.”
But advocates minding the larger landscape say that if Martinez’s record does fade into the past, his will be an exceptional story. Luis Rivera’s is more typical.
The longest job Rivera has held was for three years at a Dunkin’ Donuts franchise. The owner didn’t care about his record because, Rivera says, the place was packed with security cameras. But the opportunity may have also come because Rivera accepted that he had little choice but to work long, hard hours for minimum wage. He worked fourteen-hour shifts routinely and once even worked twenty-four hours straight, he says.
Every other gig he’s worked has lasted a few months here, maybe a year there, typically part time and often off the books. Rivera has made deliveries for a Broadway ticket broker. He’s answered phones for a production company. He’s filled in at Bloomingdale’s and managed inventory for a local company that manufactured boxer shorts. “Whatever… you name it. I worked for the city! I volunteered to clean snow at the time of the blizzard we had a couple years ago,” he brags. “Right now, I’m blessed that I have two jobs.” He cleans office buildings at night, off the books, and has a temporary kitchen job at a Turkish restaurant for $10 an hour—though he hasn’t told them yet about his record.
“They’re not living-wage jobs,” frets JoAnne Page, president and CEO of Fortune Society, which helps formerly incarcerated people find work and housing, among other things. “They’re not stable; they’re here today, gone tomorrow. Some of them are borderline illegal,” she says of the hustles so many of her clients must juggle. “These are high-casualty, low-security ways of surviving.”
And they are likely widespread. There’s no telling how many people are in the shadow economy created by criminal records, but a Center for Economic Policy and Research study looked at just the data for 2008 and calculated that the population of people with felony convictions lowered the official employment rate among all men by as much as 1.7 percentage points.
“What we used to have was almost every male between the ages of 18 and 34 in the workforce, and what you’re seeing is a diminishing of that,” Page says. “The more you look at the big picture, the more frightening it gets.”
More so if you look at the job numbers by race. The official jobless rate among black Americans remains above 13 percent—roughly double that of white workers, and on a par with the national rate during the Depression—while hovering just below 10 percent for Latinos. But the numbers grow particularly stark when you drill down on places like New York City, where the aggressive policing practices of the past two mayoral administrations have swelled the ranks of those who have been in some form of state supervision.
There are no good data on how many of those people don’t find work on release. But a 2010 study by the Community Service Society of New York, which charted the recession’s impact on joblessness, found that a shocking 18 percent of black men in the city were unemployed by 2009, doubling the 2006 rate and standing well above all other groups. And that’s just the official unemployed, a figure that excludes those who have given up looking for on-the-books work. Among Albert Martinez’s peers, the figures are numbing: the same study found that only one in four black men under the age of 25 held a job in 2010. A federal study last year found that more than half of all black New Yorkers are not in the formal workforce at all.
“For me, the connections are in thinking about the criminal justice system as an increasingly important mechanism for generating racial inequality in the labor market,” says sociologist Devah Pager, whose 2003 study was the first to add criminal records to the mix when testing hiring discrimination. Previous research had established that black applicants with the same qualifications as white applicants receive far fewer callbacks from potential employers. Pager had pairs of black and white test applicants respond to job ads in New York City and Milwaukee with matching résumés and presentations, while alternately assigning one of them a criminal record.
Among Pager’s white testers, declaring a criminal record cut the rate of callbacks by half. But the black testers with criminal records faced what she calls a “double whammy.” Notably, the white applicant with a criminal record was still more likely to get called back than the black applicant with none. But the black tester who’d been locked up was at the bottom of the pile—only a third as likely as even his black peer to get called back. “In the post-recession environment, these dynamics play out with more intensity,” Pager says, “because employers are looking for really easy ways to screen out applicants.”
* * *
The shrinking space for ex-offenders in the labor market has coincided with a rapid growth in the criminal background check industry. In the decade between 1996 and 2006, according to the NELP’s Emsellem, background checks conducted both by private agencies and through requests to the FBI exploded. Civil requests for FBI checks doubled, such that by 2006 the agency conducted more fingerprint reviews for civil purposes than for criminal ones.
The problems with these checks are manifold, including the fact that they’re often wildly inaccurate. In the EEOC’s 2012 guidance, the commissioners emphasize the haphazard nature of many of the databases now determining workers’ fates. They point to studies showing state and local databases with incomplete information that stops at the point of arrest, ignoring whether there was ever a conviction. In 2006, only half the records in the FBI’s database were complete. They’re also rife with clerical errors, like misspelled names. And the databases amassed by private companies often haven’t been updated, including to correct erroneous information. One of the plaintiffs in the EEOC’s suit against Dollar General was fired for a conviction that never existed.
All of this is why the EEOC has for twenty-five years been issuing guidances demanding that employers use careful scrutiny when considering criminal records. But Emsellem’s 2010 study found widespread disregard for that guidance. He and his team reviewed thousands of Craigslist ads for low-wage jobs in five major cities. They found more than 2,500 ads with requirements that appeared to violate the EEOC’s policy, and at least 300 that did so overtly, including ones from large national employers like Domino’s Pizza, Omni Hotels and several staffing firms.
Meanwhile, the gap between employers’ perceptions and the risk in hiring ex-offenders is as striking as the rate at which these background checks are growing. Within a couple of years after committing a burglary at age 22, Rivera’s statistical likelihood of committing another crime began plummeting. By his late 20s, he was no more likely to commit burglary than someone who had no record at all.
This type of bias has had massive consequences in an era of record poverty. The United States lost between $57 billion and $65 billion in GDP in 2008, according to the Center for Economic Policy and Research, as a result of the reduction in male workers. Of course, that lost productivity is concentrated in black and Latino neighborhoods where it is most desperately needed. A 2010 Pew Charitable Trusts study found that having been incarcerated knocks 11 percent off average hourly wages and 40 percent off annual earnings.
So Rivera considers himself lucky that he’s got work at all. “I try to think as positive as I can,” he says, counting as blessings his faith, his family, and the fact that he can get food stamps and public assistance in New York City. “I’m not telling you I don’t feel stress. Right now, I’m sitting here, I’m kinda stressed out.” That’s because he’s waiting to hear back from the Turkish restaurant about getting more money and more hours. The restaurant’s managers are talking about bringing him on salary, at $575 a week. The friend who got him the temp job there knows about his record, but not the higher-ups. “I’m not stupid. They’re gonna check me. They always check everybody’s record,” Rivera says, adding hopefully: “But they know that I work. They know how I work.” But if that proud new record doesn’t trump his past, it’s on to the next gig.
In “Locking Down an American Workforce” (April 19, 2012) Steve Fraser and Joshua Freeman examined prison labor as the past—and future—of American “free-market” capitalism (originally on TomDispatch.com).
Kai Wright is editor and host of WNYC’s narrative unit, and a columnist for The Nation.
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