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July 21, 2010

NY Times editorial praising new laws on hiring former offenders

The New York Times this morning has this notable new editorial headlined "Hiring and Fairness."  Here are snippets:

Boston, Chicago and San Francisco set a welcome example earlier in the decade when they abandoned counterproductive policies that often barred former offenders from municipal jobs, no matter how minor their crime nor how distant in the past.  Connecticut, New Mexico and Minnesota have recently passed laws protecting the employment rights of former offenders. Other states should quickly follow.

City governments recognized years ago that discrimination against former offenders had rendered a huge portion of the urban population unemployable.  The records also are notoriously unreliable, often flagging people who were falsely arrested or tried but found innocent of a crime....

Confining people with criminal convictions to the very margins of society is unfair and self-defeating. These sensible new laws recognize that.

July 21, 2010 at 08:51 AM | Permalink


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One on hand I have to applaud the efforts of these states. Whether a person messed up a little or a lot, at the end of the day, a person has paid their time and can be just as intelligent and valuable a worker as someone without a record.

With that said though, I have a nagging feeling this is in someways a way to cover their backsides. I've long felt that denying someone of employment because of a record is just as discriminatory as not hiring someone because they might be a minority, gay, or even a woman. It just so happens that very few care what happens to someone once they've committed a crime. So now state/local governments can deny employment and not worry about any potential discrimination lawsuits.

Posted by: Questions Authority | Jul 21, 2010 12:38:16 PM

Thank the biggest criminal of all, the cult criminal lawyer. If an employee commits an ordinary negligence, and injures a plaintiff, a criminal record automatically adds a negligent hiring claim to every other tort. If the business involves services to the human body, the claim may include a demand for punitive damages. There may even be an attempt to qualify the claim for strict liability, given the established dangerousness of these convicts.

Criminals are enterprising. Many have superb, social and selling skills. They may serve as great assets to many diverse businesses. Barber licenses may even be earned in prison. It is a waste of these talents to close off entire employment sectors to them out of fear of lawyers and their bogus litigation. If the states are serious about getting ex-cons jobs, they must enact legislation requiring a higher standard of proof, prohibiting per se claims, and eliminating punitive damages. Those would make these ex-prisoners

Posted by: Supremacy Claus | Jul 21, 2010 1:21:37 PM

I suggest Bernie Madoff for county treasurer. Maybe Timmy McVeigh for director of daycare services (before he blows them up).

It is one thing to discriminate against people because of their race. It is quite another to do so because of their behavior. State universties, for example, routinely discriminate based on behavior: Students on the honor roll get in, while students who flunked most of their courses don't.

It's not the criminal record per se that counts, any more than it is the high school transcript per se. It's what those records say about the person's behavior. When a guy who's been to jail three times for fistfights applies for a job, I personally don't want to be the employee who gets assigned to work next to him.

One thing you can always count on the NYT to do is whine and make excuses for bad actors, while suggesting that productive people be punished with higher taxes. A society that caters to marginal types while yoking people who live clean and work hard is headed for trouble.

Posted by: Bill Otis | Jul 21, 2010 2:14:23 PM

Bill--As a general matter, I don't think the laws cited in the NYT prohibit that at all (admittedly Massachusetts is a little ambiguous as described by the article). What they prohibit is an automatic exclusion at the beginning of the process. Basically, instead of asking on the application "have you been convicted of a crime," the criminal background check comes at the end of the process, after an employer has deemed an applicant to be qualified. As a practical matter, this will not place thieves in retail, swindlers in Treasury positions, or mass murderers as heads of day care services.

What you are correct about, though, is the cost to employers. Under these laws, the offender gets to appeal any decision not to hire on the basis of the background check. I think it's safe to say that nearly every offender will challenge a non-hiring, even if there is a real and legitimate connection between the crime and the failure to hire. And, of course, the employer bears the cost burden as a result. It might have served the legislatures to list several specific examples of prima facie reasonable non-hires just so courts could quickly dismiss meritless actions from the get-go, instead of having to make it up as they go along.

Posted by: Res ipsa | Jul 21, 2010 2:35:25 PM

Bill --

of course, a conviction really tell you a whole lot about a person's behavior, either. It doesn't tell you about what their actual conduct was, or what they have done since the conviction to try to put their lives back together.

There is this notion of reinforcing criminality - that if you tell a person they you will not hire them because they are a criminal, and that person is told that they are a criminal by enough people, then what option is left for them but to return to a criminal lifestyle? I'm not saying that such reinforcers from society excuse or justify such behavior, but only that it is a foreseeable outcome.

Posted by: Guy | Jul 22, 2010 10:17:32 PM

"but to return to a criminal lifestyle? I'm not saying that such reinforcers from society excuse or justify such behavior,"

SURE it does! if 200,000,000 million people tell you that your a crook! you will ALWAYS be a crook! Nothing you do will make you NOT a crook! Then why bother to not be a crook.

after all if 200,000,000 people think one way and you think the other...can they possible be WRONG! LOL

Posted by: rodsmith | Jul 22, 2010 11:26:17 PM

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