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Boxed In: How a Criminal Record Keeps You Unemployed For Life | The Nation

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Boxed In: How a Criminal Record Keeps You Unemployed For Life

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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.

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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).

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