The criminal justice system in the United States is broken. Too many Americans are hauled into the justice system and then must live with the stigma of a conviction record long after their sentence is completed. For the roughly 65 million Americans who have a criminal record (Michelle Natividad Rodriguez & Maurice Emsellem, NELP, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment 3 (2011)), the consequences can be devastating. They are “subject to legalized discrimination in employment, housing, education, public benefits and jury service” (United States v. Nesbeth, 188 F. Supp. 3d 179, n. 50 (E.D.N.Y. 2016) (quoting Michelle Alexander, The New Jim Crow (2010) 1-2)). Obtaining these cornerstones of stability, particularly employment, is crucial for successful reintegration into society. However, employers are far less likely to hire individuals with criminal records. It is not just applicants who are denied jobs that suffer from this exclusion; it is our overall society that bears the costs of criminal records-based employment discrimination.

The American economy loses between $78 billion and $87 billion in annual GDP every year as a result of the policies and practices that lock people with felony convictions out of the workforce (Cherrie Bucknor and Alan Barber, The Center for Economic and Policy Research, The Price We Pay: Economic Costs of Barriers to Employment for Former Prisoners and People Convicted of Felonies 1 (2016)). An accounting of economic loss that results from employment discrimination against people with only misdemeanor convictions would bring that number much higher.

To increase the chances of a person with a criminal record finding employment, policymakers are turning to “ban-the-box” laws, which prohibit employers from asking job applicants whether they have been arrested or convicted of a crime on job applications. The goal is to prevent employers from automatically rejecting applicants that check “yes” when asked, “Have you ever been convicted of a crime?”

With the generous support of a fellowship sponsored by ALM, I have spent the last year at the nonprofit law firm Youth Represent utilizing New York City's Fair Chance Act (FCA) to combat criminal records-based employment discrimination. Youth Represent's mission is to ensure that young people affected by the criminal justice system are afforded every opportunity to reclaim lives of dignity, self-fulfillment and engagement in their communities. At Youth Represent, I have seen the long-term harm the criminal justice system does to my clients, who are young New Yorkers, ages 24 and under. They are overwhelmingly poor and come from black and brown communities—communities that are over-policed and underserved. The FCA offers an increased chance that my clients will find work. That makes it a crucial piece of legislation.

Like nearly all ban-the-box laws, the FCA does not restrict an employer from conducting a background check. Instead, employers must first interview the applicant and issue a conditional job offer. This process is designed to prevent employers from judging an applicant solely on their criminal record and instead allow employers to judge applicants on the basis of their resume and ability to perform the job duties before learning about their record. After extending the conditional job offer and running a background check, an employer is only allowed to revoke the conditional job offer if: (1) the employer determines that the applicant's criminal conviction is closely related to the job, or, (2) that employing the applicant would constitute a risk to people or property.

To make that determination, the employer must consider eight factors articulated in Section 753 of the New York Correction Law. These factors require an employer to assess how much time has passed since the applicant's offense, their age at the time of the offense, steps they have taken since to turn their life around, the seriousness of the offense and the bearing the conviction record, if any, will have on their ability to perform the job.

Employers were required to consider these factors before the FCA, but were not required to memorialize their analysis. In practice, this allowed employers to offer post-hoc rationalizations for not hiring someone because of their record. Requiring employers to show their analysis, provide a copy to the applicant and allow the applicant to respond to the employer's concerns before revoking the job offer, encourages employers to keep an open mind.

Since I began my Equal Justice Works Fellowship, I have seen the potential that the FCA and similar ban-the-box laws have in encouraging employers to hire people with criminal records. These laws can have the effect of enabling employers to tap into an underemployed labor pool of productive, loyal and talented workers. In fact, employees with criminal records tend to have higher retention rates at their place of employment than those without criminal records, especially in customer service positions, where involuntary termination rates are lower for employees with criminal records than the public. (See ACLU, Back to Basics, How Hiring Formerly Incarcerated Job Seekers Benefits Your Company, 4 (citation omitted).)

Complying with the FCA is not an onerous task for an employer. All it takes is changing an employment application, filling out a form and giving an applicant time to respond to the employer's concerns. In doing so, it provides an opportunity for an employer to give someone with a criminal record a chance to reclaim a life of dignity and self-determination.

Eric Eingold is a 2015 graduate of Brooklyn Law School where he was an associate managing editor on the Brooklyn Journal of International Law.