Delaware Law Lifts Employment Barrier for Ex-Cons

Delaware Governor Ruth Minner recently signed a law lifting the ban on licensing for individuals with felony convictions for over 35 professions and occupations, a move that backers see as an important step in helping prisoners rejoin society after their release.

The legislation, sponsored by State Senator Karen Peterson (D), says that licenses may only be refused if the applicant has been convicted of crimes that are "substantially related" to the licensed profession or occupation. Professional and occupational boards in the state will have six months to identify which crimes should disqualify convicted individuals from obtaining licenses.

"If someone is convicted of [for example] vehicular homicide, why could they not be a barber or cosmetologist?" says Peterson. "The two are unrelated."

Peterson recalled that her mother, who taught cosmetology, once received a letter from an inmate who wanted to learn to cut hair. She started a small class in the prison to teach the trade to inmates. For seven years, she ran the program, graduating 70 inmates with "a recidivism rate of zero," according to Peterson.

"When I became senator two years ago, I realized that door had been closed," Peterson says. The state had passed a law barring felons from all licensed occupations, including cosmetology.

Peterson cites as another example the case of a young man convicted of vehicular homicide as a teenager. In his last year of college, he decided to pursue a career in real estate, but under Delaware law he was barred from obtaining a license. "What does an automobile accident when he was 17 have to do with being able to sell real estate?" Peterson asks.

The measure passed the Delaware Senate by a vote of 17 to 4. In the House, it passed "unanimously, 41-zip," she says. "I'm delighted that a bill that I thought would be a real challenge went so smoothly," added Peterson. "The bill got a lot more support than I thought it would."

More Awareness About Roadblocks

While Peterson believes that there are some felonies that should bar someone from a license, "not all felonies should," she says. The Equal Employment Opportunities Commission (EEOC), for example, states in its guidelines that an employer may only exclude an applicant because of a criminal conviction if there is a business necessity.

"To establish business necessity, the employer must show that three factors were taken into consideration in the hiring decision: the nature and gravity of the offense(s); the time that has elapsed since the conviction and/or completion of the sentence; and the nature of the job held or sought," according to the EEOC. "For example, business necessity exists where the applicant has a fairly recent conviction for a serious offense that is job-related."

"I really believe in giving people a second chance and not continuing to punish them for something they've supposedly already paid their dues for," says Peterson. "If you let people do something worthwhile, a lot of them will make it. If not, we're going to end up paying for it when they reenter the prison system."

One of several organizations that helped develop the Delaware legislation was the National Helping Individuals with Criminal Records Reenter through Employment (HIRE) Network, a project of the Legal Action Center (LAC). HIRE has been working on similar legislation across the country.

LAC's recent report, After Prison: Roadblocks to Reentry, details laws and other barriers preventing successful reintegration with society. The report includes a national report card that gives each state a score based on how many laws work against successful reintegration of ex-offenders. Overall, Delaware was ranked near the bottom of a list of obstacle-ridden states, and received the worst possible score for employment barriers.

Nationally, however, more legislators are becoming aware of the need for reintegration services for ex-offenders. The prison population is at a record high, and two-thirds of over 600,000 prisoners released each year are rearrested within three years. "We know from long experience that if [ex-offenders] can't find work ... they are much more likely to commit more crimes and return to prison," said President Bush in this year's State of the Union Address.

Broad Latitude for Employers

Experts say that permitting felons to hold professional and occupational licenses is an important and progressive step toward improving reentry and lessening discrimination against those with convictions. However, employers who want to avoid claims of negligent hiring still have access to criminal records in many states, and broad discretion on how to utilize this information. Only five states have standards governing private employers' consideration of an applicant's criminal record. Elsewhere, employers can deny jobs to or fire anyone with a conviction record, regardless of each individual's unique situation.

Twenty-eight states allow unrestricted Internet access to criminal records. Half of those states make all conviction records available, including the records of people whose period of incarceration, parole, or probation has already terminated. "The information can often be incomplete, erroneous or misleading, and also include arrests not leading to conviction," states the LAC report.

Even an arrest without conviction can haunt people trying to find jobs in many states -- a particular problem for drug-court graduates. Most states allow arrest records to be sealed or expunged if they don't lead to conviction. But only 13 states have any prohibitions against employers and occupational licensing agencies considering arrest records, including arrests that never led to conviction.

Furthermore, 33 states do not permit any conviction records to be sealed or expunged, so convictions often remain public records forever. Every state has the power to offer certificates of rehabilitation to remove employment restrictions for an ex-offender, but only six utilize this ability.

The legislation recently passed in Delaware removes the automatic licensing ban based on criminal records, but preserves the employer's ability to access those records and decide who to hire on a case-by-case basis, according to Debbie Mukamal, the director of HIRE and co-author of the After Prison report.

"It's not removing the record, it's not limiting access to the record, it's just sort of contextualizing it," Mukamal says.

Employment opportunities for offenders will improve if states limit access to criminal records, allow for sealing or expunging of records, and introduce and enforce standards governing how employers can consider criminal records, says Mukamal.

Mukamal suggests that communities can offer economic incentives or establish regulations "to encourage or even require that [businesses] are employing people from that community, including people with convictions."

Communities developing new employment regulations should ensure that they are "being really mindful of the occupational restrictions that they're promulgating," advises Mukamal. "Make sure that they're not overly broad ... so that there is an opportunity for the job applicant to remove that restriction," either by showing evidence of rehabilitation or by sealing or expunging criminal records.

Nonetheless, the Delaware law is a step in the right direction, she says. "We're encouraged, says Mukamal. "The number of state legislators really willing to take leadership roles and promote legislation will lead to improvements in reentry and, ultimately, public safety."

"It's not something that's going to happen overnight," Mukamal adds, "but the fact that so many advocates and state legislators are involved means that things are changing."