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Overcoming Job Barriers Facing People with Disabilities who have Criminal Records Real Jobs New York Webinar September 28, 2010 . Stephan Haimowitz, J.D. Burton Blatt Institute Syracuse University sjhaimow@law.syr.edu. Impacts of a Criminal Record.

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Overcoming job barriers facing people with disabilities who have criminal records real jobs new york webinar septemb

Overcoming Job Barriers Facing People with Disabilities who have Criminal RecordsReal Jobs New York WebinarSeptember 28, 2010

Stephan Haimowitz, J.D.

Burton Blatt Institute

Syracuse University


Impacts of a criminal record
Impacts of a Criminal Record

Numerous, legal and social, long-term

  • Voting, jury service

  • Credit

  • Housing

  • Child custody, foster care, adoption

  • Employment


Controversy employment
Controversy – Employment

  • High recidivism rate vs. predicting 1 person’s behavior

  • Protecting vulnerable populations

  • Responsibilities of certain jobs

Osvaldo hernandez
Osvaldo Hernandez

  • 2002, convicted of gun possession in NYC at age 19

    • served 6 months in jail

  • 2007-8, Army 82nd Airborne Paratrooper in Afghanistan

    • awarded numerous combat decorations and citations

Public attention
Public Attention

Despite Felony, Army Vet Fights To Be A Cop

-- New York Daily News, Oct 16, 2008

Ex-GI’s Aim is Blue

Gun Felon Turned Hero Bids for Shot at NYPD

-- New York Post, Nov 11, 2008

Rethinking impacts of a record
Rethinking Impacts of a Record

N Y Judge Henry Kron - who had sent Hernandez to jail in 2002

  • The point is for someone who’s made a mistake to have a chance to reclaim their life.

    “Second Chance Act” (2008) - new direction in federal policy

    • The point is that employment reduces recidivism.

The employment dilemma
The Employment Dilemma

Applicant discloses criminal record - employer won’t hire

Worker who didn’t disclose - fired for “false job application”

More than 3 out of 4 employers do background checks

  • on legal agencies’ websites

  • from numerous private search companies

  • from the 3 national credit reporting agencies

Nys criminal records basic terms
NYS Criminal Records – Basic Terms

  • Arrest Records

  • Teenagers’ Records

  • Conviction Records

    • Crimes

      • Felony

      • Misdemeanor

    • Non-Criminal Offenses

      • Violation

      • Traffic Infraction

Arrest records
Arrest Records

Employers and public licensing agencies can not

  • Reject based on arrest w/o conviction

  • Ask questions about arrests

    • Exception - jobs in law enforcement.

Teenager records
Teenager Records

Juvenile Delinquent (JD)

  • Family court (under 16)

  • NOT a conviction

    Youthful Offender Adjudications (YO)

  • Criminal court (-19)

  • NOT a conviction


    BUT Juvenile Offender (JO)

  • Criminal court (-19)

  • IS a conviction

Strategies handling a criminal record
Strategies – Handling a Criminal Record

  • Correcting RAP Sheet Errors and Sealing Records

  • NY Law’s Requirement of Individual Consideration

  • NY Law’s Certificates of Rehabilitation (2 types)

  • Bonding Program & Employer Tax Credits

  • Preparation for Job Applications & Interviews

Rap sheet errors
RAP Sheet Errors

RAP created if person is arrested and fingerprinted

Over 87% of NY RAP sheets contain mistakes.

  • Grade (felony vs. misdemeanor is wrong

  • Charges are listed more than once

  • Disposition is not reported

    Why it matters

  • Sometimes, all charges were dropped.

  • Even if conviction, often only for some and /or less serious charges

  • If disposition not present, employer will assume that charges are pending

    Request for Record Review” Form

    Division of Criminal Justice Services (518) 485-7675


Sealing records
Sealing Records

  • Arrests not ending in Conviction Can be Sealed

    • Starting in 1991, automatically sealed

  • Convictions formostNon-Criminal Offenses Can be Sealed

    • Violation

    • Traffic Infraction

  • BUT Convictions for Crimes Can Not be Sealed

    • Felony

    • Misdemeanor

  • Nys corrections law article 23 a
    NYS’ Corrections Law Article 23-A

    • Prohibits Most “we don’t hire offenders” policies

      • covers hiring & retention decisions

      • summary must be conspicuously posted and given to applicants

    • Applies to

      • public employers

      • public licensing agencies

      • private employers (more than 10 employees)

    • Requires individualized assessment of qualifications and

    23 a individualized assessment
    23(a) --- Individualized Assessment

    • age at time of the offense, any mitigating circumstances

    • seriousness of offense

    • time elapsed and record since the offense

    • rehabilitation efforts and outcomes

    • how the crime relates to the specific job or license

    23 a employers liability concerns
    23(a) Employers’ Liability Concerns

    • Art 23-A provides some protection from “negligent hiring” lawsuits

    • By barring evidence of the worker’s prior conviction

    • If employer had followed Art 23-A in good faith

    Fair credit reporting act
    Fair Credit Reporting Act

    Under the federal law

    • If an employer plans to take “adverse action” based even in part on a credit report, he/she must give the person –

      • a copy of the report

      • a Summary of Consumer Rights, including how to fix errors

        before taking that action


    Nys 2 certificates of rehabilitation
    NYS’ 2 Certificates of Rehabilitation

    • “Certificate of Relief from Civil Disabilities”

      • 1 Felony & any # of Misdemeanors

        Can include convictions in other jurisdictions

      • Can get Immediately upon conviction

        From sentencing judge or Division of Parole

    • “Certificate of Good Conduct”

      • Multiple Felonies & any # of Misdemeanors

      • Waiting Period C,D or E felony - 3 years A or B felony - 5 years From Division of Parole

    Federal bonding program
    Federal Bonding Program

    Encourages employers to hire “at risk” individuals

    • Ex-offenders Ex-addicts who’ve been rehabilitated

    • Program information http://www.bonds4jobs.com/index.html

      Covers loss up to $ 25K loss from employee dishonesty

    • Does not cover poor workmanship, injury, work accidents, etc

    • Established in 1966, 99% success rate

      Free to employer for 6 months, no deductable

    • Relatively simple application process – need full time job offer with starting date

    • After 6 months employer can continue coverage by paying premiums

      NYS Coordinator Elaine Kost 518-485-2151 elaine.kost@labor.state.ny.us

    Special nys rules
    Special NYS Rules

    • Unlicensed health care staff

      • NYS Dept of Health – state and federal record checks

    • Places serving alcohol

      • Waiver is available from NYS Liquor Authority

    • Commercial Drivers License

      • Hazardous Materials Endorsement

    Limited driver s license
    Limited Driver’s License

    Keeping a Driver's License DURING Prosecution

    Hardship Privilege which permits driving to/from work, school/and/or doctor

    Conditional License AFTER Conviction

    Person can drive to / from /during:


    certain other activities

    Must complete Drinking Driver Program http://www.nydmv.state.ny.us/broch/c40.htm

    7 sessions, 1 / week, each 2-3 hrs


    Tax credits for employers
    Tax Credits for Employers

    Federal Work Opportunity Tax Credit $2,400


    NYS Workers with Disabilities Tax Credit $2,100


    Using these strategies
    Using These Strategies

    How To Get and Clean Up Your New York State Rap Sheet

    Free online - http://www.hirenetwork.org/pdfs/NYS_Rap_Sheet_Final.pdf

    Employment Discrimination and What to Do About It

    Guide for NY Counselors of Individuals in Recovery from Alcohol and Drug Dependence, and Ex-Offenders

    Free online - http://www.hirenetwork.org/pdfs/Employment%20discrimination%20(NY).pdf

    Legal Action Center

    225 Varick St. New York, NY 10014

    (212) 243-1313 http://www.hirenetwork.org

    Assistance preparation
    Assistance >>>> Preparation

    • Advocacy Organizations

      • HIRE, Legal Services, Public Defenders, Prisoner’s Rights

    • Veterans Organizations

      • vets who are lawyers may help “pro bono” (free)

    • Google / Bing, etc “expunge New York criminal records”

      • private lawyers who will provide representation for a fee

    • A lawyer helps but isn’t required, preparation is . . .

    Job applications interviews
    Job Applications & Interviews

    • Prepare to handle the criminal record question

      • Do not leave application question blank or say “will discuss at interview”

      • Do practice interviews (vets in that business)

    • Answer what is asked truthfully, and know

      • Differences – Crime (felony, misdemeanor) vs. Non – criminal offense

      • Conviction includes suspended sentence, probation, fines, etc.

    • Give a summary of what happened

      • Be brief, accept responsibility

    Job applications interviews cont
    Job Applications & Interviews (cont.)

    • Fully explain what’s changed & provide documentation

      • Military service

      • Rehabilitation / treatment

      • Education / work

      • Community service / church involvement

  • Provide Federal Bonding information

    • State coordinator’s name, phone and email

    • Program form and description

  • If not hired, send a letter recounting the above

  • Economic independence programs
    Economic Independence Programs

    • Self employment assistance

      • Business plan development, financial consultation and training -- from experts

    • For more information

      • Start-Up NY

        • Syracuse University, Burton Blatt Institute

        • http://bbi.syr.edu/projects/startup_ny/

      • Entrepreneurship Bootcamp for Vets with Disabilities

        • SU’s Whitman School of Management and 5 other universities

        • http://whitman.syr.edu/ebv/

    Economic independence programs1
    Economic Independence Programs

    • New York Makes Work Pay

      • SU’s BBI, Cornell, New York State

        • Customized Employment

        • Benefits Management, Tax Assistance, Individual Development

        • Financial Literacy

        • http://www.ilr.cornell.edu/edi/nymakesworkpay/index.cfm

    Slowing the revolving door programs
    Slowing the “Revolving Door” Programs

    • Human services - criminal justice collaboration

      • agencies often struggle serving many of the same people

      • employment a key element in recovery

      • http://mentalhealth.samhsa.gov/cmhs/CommunitySupport/toolkits/employment/

    • Diversion

      • getting people into treatment services

      • SAMHSA funds a range of program models (800) 311-GAIN

      • National GAINS Center http://www.gainscenter.samhsa.gov/html/

    Positive signs
    Positive Signs

    • Ban the Box Ordinances – public employment

      • Eliminate “Have you been . . . “ from job application

      • Minnesota, San Francisco, Chicago, Baltimore New Haven, Portland

      • Some extend to contractors

    • State Initiatives

      • MA bill shortens waiting periods to seal records - Governor supports it

      • Federal “2nd Chance Act” – new national policy

        • Successful reentry is in the public interest

    The reality
    The Reality

    • Escaping criminal justice involvement – possible, but difficult

    • Making the effort can have significant benefits

    Unique auto body whitehall ny 518 642 2945
    Unique Auto Body Whitehall, NY (518) 642-2945