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Rochester considers ordinance to limit questions about criminal history in job applications

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Just over ten years ago, Paul McFadden was told outright by a convenience store owner that he was not employable because of a series of convictions in his teens.

Paul McFadden said, "What's the problem? What's going on?"

He said, "A person like you will never work inside of here. You've been a criminal all of your life. You've been a gang member all of your life. You and your kind will never... if I had it my way, I wouldn't even let you step foot inside of my store.”

The employer that turned McFadden away broke New York State and Federal employment laws, whether he knew it or not.

“The law is very clear. You cannot automatically disqualify individuals solely because they have a criminal background,” said Kristen Clarke, Chief of the Civil Rights Bureau for the state Attorney General’s office.

In April, Bed Bath and Beyond settled with state Attorney General Eric Schneiderman over this issue. A human resource representative from the retail chain of home goods stores stated at a job fair that they do not hire individuals with a criminal background.

Clarke says they know there are other employers breaking the law in the same way.

McFadden’s brother, Adam, recognized this problem.

“We have a huge population of people who are discriminated against when they try to go find work,” he said.

And as a Rochester City Councilman, he decided to do something about it.

“I've gotten phone calls, had meetings with people who have committed crimes in the past that are trying to work or make a better life for their family legally," he said. "And they feel as if every time they go for a job or try to even get a place to live they are discriminated against because of their past.”

Councilman McFadden is the sponsor of a city ordinance that is scheduled to be voted on next week. McFadden calls it the “foot in the door” legislation, others call it the “opportunity to compete” ordinance, but it is part of a larger movement known as “Ban the Box.”

Nearly 60 cities and counties nationwide have passed laws to keep the question of whether a person has ever been convicted of a crime off of job application forms.

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Credit Michelle Faust/WXXI
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Audience members from the public comment meeting held in Rochester Tuesday.

“I’ve been a Rochester, New York police officer for 24 years.”

Cynthia Herriott Sullivan might be a surprising advocate for the legislation in Rochester, but she says it’s about keeping people who’ve completed the sentence under a conviction on the straight and narrow.

“Because I know at the end of the day, if you don't have options, the community is going to be affected.”

Councilman Adam McFadden also sees it as a question of both community safety AND keeping people from returning to prison.

“I'm talking about people who get a two year sentence, a four sentence, eventually they come home. And what do you have for them when they come home? So, we have to find jobs for them, because I don't want them robbing me, I don't want them committing more crimes, I don't want them hurting people. I want them working.”

If passed, the ordinance would NOT completely keep the conversation about a criminal history out of the job application process. Employers can still conduct background checks or ask later in the hiring process, and certain employers could still make rules for safety reasons.

Herriott Sullivan explains the nature of and how long ago the crime took place can and should be considered by the employer.

“If you have a conviction for theft or forgery, then you can't get a job as a bank teller. OR obviously, if you've molested children, you're not going to get a job in a daycare. That's just not going to happen”

“Police and Fire Departments are NOT subject to the proposed law…” said Attorney General Eric Holder in a speech last year.

In 2013, the Obama administration acknowledged failings in the war on drugs and the practice of minimum sentencing for non-violent drug offenses. Holder went on: “In recent years, black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable, it is shameful.”

Federal changes in drug enforcement policies are intended to tackle similar problems that the ‘Ban the Box’ movement looks to correct.

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Audience member, Ban The Box meeting held in Rochester

Supporters of the Rochester ordinance explain it’s meant to partially address some of the repercussions of economic and racial disparities in the legal system.

Precious Bedell is a Project Health Counselor at Woman Initiative Supporting Health. She says that job came as a blessing after many years of unemployment and underemployment based on a past felony conviction. Bedell is not the only one that says the wealthier a person is, the less likely they’ll be arrested for committing an offense that would land a poor person in jail, AND RACE is also a factor.

“A white boy’s prank is a poor boy’s felony. And it’s not just a black boy or an African American boy or a Latino, because our jails are beginning to fill up with poor white people, especially poor white women.”

The city of Buffalo banned the practice of asking about prior criminal convictions on job applications last summer. Since the ordinance went into effect in January, employers have been examining the best way to comply with the law.

Buffalo Attorney Erin Sylvester Torcello is an associate at Bond, Schoeneck, & King, who concentrates her practice in labor and employment law. She says employers find it tricky to keep up with different rules in several different municipalities.

“Companies with multiple facilities, both within and outside of the city, it’s raised issues as to how they have to change their application process. And do they have to do it for all facilities or just those within the city limits. How is that going to play out from an implementation standpoint?”

Torcello says the nuance and subjectivity that goes into hiring can put an employer’s staffing decision in a legal ‘grey-area.’

Even some who agree with the intent of ‘Ban the Box’ say ordinances like the one in Buffalo and the Rochester proposal will not go far enough to curb employment discrimination. Others worry eliminating the ‘box’ will take away a deterrent to crime.

The proposed law is on the agenda for the May 20th Rochester City Council Meeting.

Michelle Faust, MA, is a reporter/ producer whose work focuses strongly on issues related to health and health policy. She joined the WXXI newsroom in February 2014, and soon after became the lead producer on the Understanding the Affordable Care Act series. Michelle is a reporter with the health collaborative Side Effects and regularly contributes to The Innovation Trail. Working across media, she also produces packages for WXXI-TV’s weekly news magazine Need to Know.
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