Summary of the ProblemMore and more, employers are conducting criminal background checks on job applicants, which can make it much more difficult for the millions of Americans with criminal records to find employment and become productive, law-abiding members of society. Most states allow employers to refuse to hire people with criminal records; not only individuals who have been convicted - even if they have paid their debt to society and demonstrated their ability to work without risk to the public - but also those who were arrested and never convicted. Although no one questions the legitimate concerns of employers who do not want to hire someone with a conviction record who clearly demonstrates a threat to public safety or who otherwise has a conviction history directly related to a specific job, policies that encourage employers to adopt broad sweeping exclusions (i.e. not hiring or considering anyone with any type of criminal history) simply lock out and eliminate many qualified, rehabilitated individuals from the job market.

            Criminal record policies that bar applicants with criminal histories from employment should be amended to not only include a requirement for individualized determinations but may include a graduated period of consideration of the criminal record based upon the severity of the individual's criminal record history.  Consideration of a criminal record should not be permitted beyond 7 years.  In the study, Scarlet Letter and Recidivism: Does an Old Criminal Record Predict Future Offending (2007), researchers note that their findings "suggest that after a given period of remaining crime free it may be prudent to wash away the brand of ‘offender' and open up more legitimate opportunities to this population." 

Proposed Solutions:

            ExecutiveChange regulations and guidance from the Departments of Education and Labor to ensure that state and federal in-prison educational and training programs are tied to high growth labor markets and industries.

            Job training programs should be developed and matched to promote skills for jobs that are available in the regional labor market and those that are in high growth sectors.  Conducting labor market analysis that includes a review of statutory barriers is cost-effective and is an efficient use of job training resources.   For example, a correctional facility may train people in horticulture despite the fact that the majority of the individuals may return to urban metropolitan areas where there are a limited number of jobs available in floral design and landscaping.  A facility may also train incarcerated individuals in barbering or cosmetology and the state's licensing law may prohibit someone with a felony from being licensed. Additionally, in some states, people in prison may be trained for work in industries that may be nonexistent in their region.  Labor forecasting and legal barrier analysis is a cost effective and sensible practice to ensure incarcerated individuals are prepared to compete in the labor market, are employable, and are less likely to recidivate.                   

            Legislative Changes

1.  Amend the Higher Education Act to restore Pell Grant eligibility to incarcerated people

  • Amend the Higher Education Act (most recently reauthorized in August 2008, now PL 110-315) to allow incarcerated persons to apply for Pell Grants. In 1994, Congress eliminated Pell Grant eligibility for people who are incarcerated. Most post-secondary higher education programs in prisons closed as a result. Education is one of the best deterrents to re-offending. In a study conducted for the U.S. Department of Education, researchers found that participation in state correctional education programs lowers the likelihood of re-incarceration by 29 percent. In addition, this study concluded that for every dollar spent on education, more than two dollars in reduced prison costs would be returned to taxpayers.

2.  Codify Current EEOC Guidance on Hiring People with Criminal Records

  • Create a federal standard based on the Equal Employment Opportunity Commission (EEOC) policy guidance on the use of criminal background checks for employment purposes when screening for arrest and conviction. This guidance currently asks employers to consider the relationship between the offense and the job position, how long ago the offense occurred, the severity of the offense, and any evidence of rehabilitation.
  • Criminal record policies that bar applicants with criminal record histories from employment should be amended to not only include a requirement for individualized determinations but may include a graduated period of consideration of the criminal record based upon the severity of the individual's criminal history. Consideration of a criminal record should not be permitted beyond seven years.

3.  Strengthen the Work Opportunity Tax Credit

  • Amend the Work Opportunity Tax Credit (WOTC), authorized by the Small Business Job Protection Act of 1996 (Public Law 104-188). Currently, under the WOTC program, employers who hire low-income individuals with criminal records can reduce their federal income tax liability by up to $2,400 per qualified new worker. Congress should increase the WOTC tax credit for individuals with criminal records to match the tax credit available for individuals who qualify as Long-term Family Assistance recipients. There is a $6600 difference between the two credits.

4.  Reauthorize the Workforce Investment Act

  • Any reauthorization of the Workforce Investment Act (Public Law 105- 220) should include provisions for hard to serve populations, including those individuals with criminal histories, through the WIA one-stop system.

5.  Pass the "Fairness & Accuracy in Employment Background Checks Act"

  • Approve the "Fairness & Accuracy in Employment Background Checks Act" bi-partisan legislation introduced in the House at the end of the 110th Congress (H.R. 7033); this legislation seeks to provide critical safeguards when the FBI conducts criminal background checks for employment purposes.

              Legislative Appropriations (Solutions w/ Funding Requests):  Increase funding for WIA programming aimed at serving harder-to-serve individuals, including those with criminal records.


            Executive Branch:  Department of Labor (Employment and Training Administration), Department of Education  

            Legislative Branch:   House and Senate Judiciary Committees, House Education and Labor Committee, Senate Health, Education, Labor and Pensions (HELP) Committee


            Legislative Branch:  During the 110th Congress, there was some significant discussion about the barriers to employment that people with criminal records face.  The House Judiciary Subcommittee on Crime and Drugs held a hearing to examine practices related to FBI criminal background checks being used for employment purposes. During this hearing, Members heard witness testimony about the advent of background checks being used for employment purposes and the great number of inaccuracies and instances of incomplete records in the FBI database.  In addition, Subcommittee Members heard testimony about the lack of guidance given to employers about how to consider criminal history in making employment decisions.

            In addition, the House Government Oversight and Reform Subcommittee on the Federal Workforce held a hearing on employment policies and practices within the federal government for people with criminal records. 

            In the second half of the 110th Congress, a number of organizations, including the National Employment Law Project and the National HIRE Network, began working with Congressional staff to develop legislation aimed at requiring the FBI to clean up the criminal history database.  Democratic and Republican Members of the House have agreed to sign onto this legislation as original co-sponsors.  Senate Democratic Members have also agreed to sponsor the legislation, but Republican Senate sponsorship has not yet been found.

Potential Allies, Potential Opposition, and Public Opinion:  There are a number of organizations from various fields who support expanding employment opportunities for people with criminal records, including many of the organizations that participated in the Reentry Working Group which advocated for passage of the Second Chance Act.

            Potential Allies: 

  • Legal Action Center
  • National H.I.R.E. Network
  • National Employment Law Project
  • The Sentencing Project
  • Open Society Policy Center
  • International Community Corrections Association
  • NAACP Legal Defense and Educational Fund
  • American Bar Association
  • Center for Community Alternatives
  • Justice Policy Institute
  • Prison Legal News
  • International CURE
  • Virginia CURE

            Public Opinion:  In 2006, Zogby International conducted a poll for the National Council on Crime and Delinquency, entitled Public Attitudes toward Rehabilitation and Reentry.  The poll found 80% of the American voting public believe job training is "very important" to a person's successful reintegration into society after incarceration.


For Further Information

National HIRE Network,

Last Updated on Wednesday, 19 November 2008 17:06
For more information, please read about us or contact Matthew Allee at the Constitution Project, 202-580-6922.