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Seeking Jobs After Jail, Freed Prisoners Say Biden Aid Lacking

May 9, 2022, 9:45 AM

Jason Hernandez, who spent nearly 20 years in prison, cheered the Biden administration’s plans to make it easier for people like him to re-enter the workforce.

But Hernandez and other formerly incarcerated people, as well as criminal justice advocates, now worry the actual proposals may fall short of expectations for those who served long sentences.

They say the proposals fail to address the real-world challenges faced when seeking jobs, such as how to explain long time gaps on resumes. And human resources professionals say the administration must commit more resources and work with employers to properly implement the changes.

“If you’ve been incarcerated, like I was for 20 years, I didn’t have any work history,” said Hernandez, who was sentenced in 1998 to life without parole plus 320 years for a drug offense, but pardoned by then-President Barack Obama in 2013. “I can’t say, ‘Well, I didn’t work since I was a teenager.’ So, I had to tell him, like, ‘Sir, I just came out of prison.’”

“They might not ask anyone [for my criminal history], but I’m kind of required to tell them,” added Hernandez, who was released in 2015.

Biden Proposal

The Office of Personnel Management announced a proposal April 27 to implement new rules under the Fair Chance to Compete for Jobs Act of 2019, a “ban the box” law that lays out when federal agencies and contractors can request information on a job applicant’s criminal history. In most cases, agencies and contractors are barred from requesting criminal history records before a conditional offer of employment is made.

The proposed rule aims to strengthen protections for job applicants by establishing policies that outline due process and accountability steps for hiring officials. The proposal is part of the Biden Administration’s strategy to help convicted offenders get jobs and reduce their chances of returning back to prison.

Comments on the proposed rule are due June 27.

The administration touted the changes as providing “meaningful opportunities for redemption and rehabilitation to empower those who have been incarcerated to become productive, law-abiding, members of society, and reduce crime,” in an April 26 statement.

OPM says work-history gaps shouldn’t impact a candidate’s eligibility for a federal job as long as they meet minimum qualifications.

“There is no requirement to address employment gaps or reasons for leaving previous positions in your resumé,” according to the agency’s hiring guide, released shortly after the proposal.

‘Different’ Situations

Those guidelines won’t stop employers from speculating on time gaps in a resume, and finding a clear fix to this problem is difficult, said Peter Cappelli, professor of management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania.

“You could say that you’re not allowed to see a gap like that,” he added. “But then, the problem is how could you design a resume so that it doesn’t exclude so many things that are relevant that it would seem silly to start even making screening decisions without knowing it?”

Hernandez said the guidelines won’t help everyone.

“It doesn’t take into account different people’s situations. Maybe the person coming out doesn’t have probation, doesn’t have parole, or doesn’t have to go to a halfway house and who’s only been incarcerated three or four years—this will probably help them out. But that individual who has been gone for a decade or a couple of decades, it doesn’t help them out,” he said.

Criminal justice reformers said questions such as how to address work-history gaps are cause for concern and stressed that giving the regulations teeth and ensuring broad implementation should be a top priority to help convicted people get a fair chance to reintegrate.

“This is why how they are implementing is so important,” said Inimai Chettiar, the federal director of the Justice Action Network. “They’re actually starting to implement, given that the law was passed in 2019, so it’s a great first step. But it has to be implemented properly and broadly, meaning all people with criminal histories, no matter how long, aren’t locked out of federal employment opportunities.”

Employer Challenges

Employers, who must balance the privacy rights of applicants with safety concerns, need more guidance to ensure they properly comply, said Emily M. Dickens, chief of staff and head of government affairs at the Society for Human Resource Management.

“Employers do need assistance in understanding how to effectively integrate this particular talent pool. They don’t know everything, and they should be very mindful working with their risk management and with legal within their organization to make sure that they’re not violating anyone’s privacy or safety,” she said.

“You don’t want it to become a burdensome act. You want it to be something that can be incorporated in what they’re doing anyway,” said Dickens. “What we’d like more is guidance to say, ‘here’s how you can be a workplace that is more open to these employees and here’s how you can make it easier to hire them on both sides.’”

Under the proposal, a federal contractor or agency employee who violates the rule could face written warnings, suspensions without pay, and monetary civil penalties depending on the severity of the offense.

Dickens said contractors need rules and penalties that are consistent with other guidelines.

“The creation of a stand-alone discipline policy that may differ from existing policies and procedures has the potential to create challenges for both workers and managers,” she said.

For criminal justice advocates, any efforts to address the issue are long overdue.

Kemba Smith Pradia, founder of the Kemba Smith Foundation, who had her sentence for a non-violent offense commuted by then-President Bill Clinton, said formerly incarcerated people just need the chance to prove themselves.

“Returning citizens are some of the hardest working people in general because we have something to prove to ourselves, our families and society, she said. “Our lived experience drives our passion to excel which can be more valuable than a person that has a 20-year work history or a graduate degree.”

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Meghashyam Mali at mmali@bloombergindustry.com; Andrew Childers at achilders@bloomberglaw.com