Focused on labor struggles & PIC abolition, Issue 38 is packed full of timely and useful analysis, reflection and resources for organizing inside and outside of cages, including articles on decriminalizing sex work, recent general strikes in Ecuador and Colombia, challenging the 13th Amendment and prison labor, and more. Learn more about the project and support it by subscribing today to sponsor free subscriptions to this essential organizing tool and resource for imprisoned people.

The Rise of “Criminal” Background Screening, Employment, and Impacts on People Looking for Work

An interview with Melissa Burch by Rehana Lerandeau

Editor’s Note:“Criminal records” is a general term describing the lists of arrests, prosecutions, and charges pending that would likely show up on various background checks. We use the term in this piece as it is used in employment contexts, and, as abolitionists, want to encourage rejecting language that criminalizes people and acts of survival, language that defines people by harm they may have committed in the past, or any language that categorizes groupings of people as deserving of punishment, imprisonment, and surveillance.

How did you develop an interest in criminal records and background checks?

When I lived in Los Angeles, I organized with CR against jail construction in the No New Jails Coalition, where I met Susan Burton, who founded a reentry program for women coming out of prison, called A New Way of Life Reentry Project. I began doing political education with the women at A New Way of Life and eventually joined the staff.

At A New Way of Life, I helped to establish a legal clinic in collaboration with UCLA Law School and its students to help people expunge their records. Many people weren’t eligible for expungement and started coming to us with general issues of employment discrimination—being unfairly and illegally denied jobs or promotion based on their convictions. That’s where, working alongside the law students and hearing the challenges people were having finding and retaining work based on their criminal records, I first developed an understanding of the nexus of employment and criminal records and the significance of employment for people coming home.

At A New Way of Life, we were also the hosts for a local chapter of All of Us or None (AOUON), the former-prisoner-led group that was founded in 2004 in Oakland, California, that established the Ban the Box campaign around the country to remove questions about records on job applications and other discriminatory practices against people with records. We were specifically trying to get the city and county of Los Angeles to pass Ban the Box laws, while CR’s Oakland chapter worked to “ban the box” by partnering with AOUON in the Bay Area to create the coalition Plan for a Safer Oakland. This was an incredibly informative and frustrating experience.

Now in 2022, Ban the Box policies have been adopted in hundreds of cities and counties all over the US—we no longer think of it as a big deal, but this was back in 2004 – 2005. While working to first implement it, there was great resistance to the idea that we not ask about past convictions on job applications. From our perspective, this was a modest reform, but somehow it seemed unprecedented to folks. That’s where my intellectual curiosity kicked in. Furthermore, the reasons provided by the County Board of Supervisors for not adopting change were very unconvincing—they didn’t want to give people “false hope” by allowing them to get a foot in the door when they might later be denied. The board also concluded, through a study of their own practices, that they weren’t discriminating! Why such huge resistance to such a moderate and symbolic reform? My research attempted to get to the bottom of this: Why are so many employers unwilling to hire people with records? Why are some willing? What drives decisions to include or exclude?

What are the consequences for folks that are living with criminal records after a period of imprisonment?

By Ana Holschuh

Unfortunately, evidence shows that having a record generally, and especially after imprisonment, negatively affects both immediate wages and long-term earnings. Many people with felony convictions get hired into the lowest tier of the labor market—jobs paying the lowest wages, with few if any benefits and little job security. A record can also affect a person’s ability to move up—for example, sometimes people successfully get hired but have trouble advancing into higher-level positions.

There is also a huge range of people who are convicted and who go to prison, and differently situated people are impacted differently—these variations in experience are very important. For instance, some people had careers before being sent to prison, while others may have never had a job or have very little or spotty work experience. Some had careers that they can’t go back to due to occupational licensing statutes that prohibit people with felonies or specific convictions in certain professions. Some people are past middle age when they come out of prison, and their record may not even be the biggest barrier; it might be age discrimination, or the combination of the record plus being older. There’s plenty of evidence that suggests that Black people, especially women, with records, have a harder time finding work because of the double discrimination based on race and a record. People with sex-related convictions by far face the most difficult time of all.

Even with many different experiences of job seeking with records, there are commonalities. In our organizing and advocacy, we need to not flatten those differences or pretend they don’t exist.

How did “criminal” background checks become common in employment contexts?

The rise of record screening in employment is a deeply fascinating and complex story. Prior to the 1970s, a prospective employer would not likely have known about a past conviction. Only 50 years ago, record screening was rare in employment contexts and mostly used when applying to be a judge, cop, or some high-level position of public trust. That’s what a background check was for—not for every single job as is almost the case now. It’s important to remember that criminal records were first and foremost a tool of policing. Records of arrest and prosecution were collected and primarily used by police for the purposes of policing and “criminal justice”. By 2005 or so, nearly half of all background checks were conducted for a purpose other than “criminal justice”. In the next 10 years, the number of these checks increased by another 55 percent. It’s hard to estimate exactly how many employers conduct background checks today. The point is many more private employers now conduct background checks as a matter of routine than a few decades ago.

It’s important to unpack why and how we came to be in a situation where most employers conduct routine background checks. My goal is not only to build a chronology of who did what, when, but also how things have worked together, and to what effect. In order for records to be used effectively as discriminatory information, and for an employer to have that information in their hands to use in hiring decisions, 1) the data has to exist 2) it has to be available and widely shared, and 3) people have to be convinced of its value. The rise of background screening is a story of availability, capacity, and motivation. To think about these three factors through time we must consider three key trends that developed simultaneously in the late 1960s and continued into the 1990s that set the stage for widespread background screening.

In the late 1960s, police were expanding the scope and volume of the data they were collecting and using new technology to digitally integrate and automate their new databases. This investment in databases was linked to investment in other tools of policing in the late 1960s and early 1970s following urban uprisings across the US. Computers, electronic maps, databases, etc., were all tools meant to improve policing infrastructure and performance. Simultaneously, there was also a lot of buzz about police modernization and professionalization: That was the origin of this major push to integrate the records of prosecution, court records, correction records, arrest records into a nationally accessible database. Suddenly, a cop could stop someone in any given place and quickly be able to see anything going on with that person in the past, anywhere in the country.

A commission under President Johnson called for this integrated national information system to serve all the needs of police, courts, and corrections at local and regional levels. This established the National Crime Information Center in 1967, allowing people within these systems to effectively share information quickly with one another. However, in accounts of the rise of background screening, there is an overemphasis on the idea that technology caused this integration, whereas it’s important to focus on the ways that people made more deliberate decisions to pursue these kinds of systems.

Prior to the 1970s, a prospective employer would not likely have known about a past conviction. Only 50 years ago, record screening was rare in employment contexts and mostly used when applying to be a judge, cop, or some high-level position of public trust. That’s what a background check was for—not for every single job as is almost the case now. It’s important to remember that criminal records were first and foremost a tool of policing.

The second factor was governments developing new systems to share the data. Major national organizations undertook efforts to integrate, collect, and modernize systems of record keeping. This took years to make possible—moving from paper and local records to sweeping integrated systems, where federal, state, and municipal records are all available, with an ongoing effort to make that integration ever more seamless. They were also exploring how to share this data with the public, deliberately granting access to users outside of the criminal legal system.

Court records have technically always been available to the public, but prior to the internet were basically unavailable since obtaining them required going to a courthouse and requesting information for a particular person. They were also limited by locality to records in your city or county—you couldn’t get records outside those locations. FBI records, in contrast, were not shared with agencies outside of law enforcement. In the 1970s, Congress began to chip away at keeping FBI records secret, and throughout the 1970s and 1980s there was a constant privacy debate around the kind of access a person or agency should have to a person’s record. By 1976, the Supreme Court set aside concerns about privacy and started marching steadily toward increasing access to users in the public. This eventually included selling court data in bulk to providers of background checks and establishing databases and infrastructure.

The third key trend during the 1970s into the 1990s was state and local government agencies enacting legal restrictions and exclusions that prohibited people with records from working in particular industries or professions through two approaches. The first included state or federal laws directly barring people with records from performing particular occupations. For instance, California automatically denies eligibility to people with any felony to be employed in positions dealing with electronic records or to own or manage a smog-check station. The second are thousands more barriers enacted by occupational licensing agencies that regulate a particular profession—for example, the Emergency Medical Services Board or the Department of Real Estate. All forms of government-generated barriers have increased exponentially since the 1970s.In fact, in 2014 the American Bar Association identified 28,000 legal restrictions related to employment for people with arrest or conviction records—an enormous jump from the 2,000 restrictions identified in 1970.

Additionally, in the 1990s, courts began to expand employers’ responsibility for the behavior of employees. A series of court decisions reasoned that employers are legally responsible for employees’ actions on the job. There were a couple of very sensational cases in which someone who had a record did something harmful while at work and companies got sued for millions of dollars. Those cases created a precedent to not hire people with records, broadly called “negligent hiring”. The doctrine of negligent hiring, however, is not as broad as it is touted to be.

For a negligent-hiring case to be successful, the case has to be made that an employer reasonably could have foreseen the harmful behavior and that the behavior was related to the person’s specific “criminal” record. Furthermore, the law does not say an employer has to do a background check, only that they have to somehow vet the people they hire. The perception of employer liability took off at a rate that’s higher than its actual legal fact. In other words, even if it’s not really true that employers will be held legally responsible, the feeling that it’s true may matter more than the empirical fact.

The events of September 11, 2001, dramatically accelerated and amplified the growing consensus that background checks were a smart idea. These events prompted the single biggest surge in state-mandated background checks to date, bringing the fields of employment law, human resources (HR), and the background-screening industry into play. New congressional mandates for airport workers, airline personnel, port workers, and truck drivers resulted in millions of new background checks and restrictions, and strengthened the idea that there were clearly identifiable “bad guys” who could be kept out of one’s organization by doing a background check. Professional HR organizations began to promote background screening as a best practice. Attorneys partnered with screening companies to encourage background checks to avoid negligent-hiring litigation. Together these entities generated the necessary information and know-how to take background screening to scale. As more vendors entered the market, screening also became more affordable—making it possible for more employers to incorporate background screening as a routine part of the hiring process.

What should organizers be working toward to address this issue?

There’s a lot of really important work to challenge these more fundamental structures. There are people actively working to oppose occupational licensing restrictions and to repeal exclusionary legal statutes. There are also people and organizations working to go back to some version of privacy, to reconsider how easy it is to access all of this information. Beyond Ban the Box, there is lots of organizing toward more comprehensive fair employment standards that may not eliminate background checks but would make it more difficult for employers to use them to discriminate.

We need more synergy between people and organizations working to end the reliance on policing and punishment generally, to take action to improve the conditions of people coming home and reduce post-release surveillance and criminalization. There must be more discussion and understanding of the use of records as one of the many ways that our society relies on punitive strategies and records as the key mechanism through which the prison industrial complex (PIC) continues to operate in people’s lives long after arrest, conviction, sentencing, and release. Records and monitoring are key mechanisms of ongoing criminalization that essentially never go away. I’m trying to foster more of an analysis of records not just as a reentry issue but as integral to the PIC.

If there was like one wrench you could put in the cogs of “criminal” record screening practices where would it go?

My wrench is an ideological one. The whole basis for the “criminal” background screening system relies on the notion that records reliably sort the world into the people who have done “bad things” and the people who haven’t.

There must be more discussion and understanding of the use of records as one of the many ways that our society relies on punitive strategies and records as the key mechanism through which the prison industrial complex (PIC) continues to operate in people’s lives long after arrest, conviction, sentencing, and release.

By Ana Holschuh

We know this isn’t the case, that instead records reliably tell us whose actions have been criminalized. By reframing what records are and questioning what they’re supported to do, we could begin to undo fundamental ideas about who is “risky” vs “at risk”, “dangerous” vs “safe”, as well as what safety is and how we build it; what danger is, and how we detect it. These questions are fundamental not only to the background-screening system, but to the entire PIC. We could fix a lot more than records discrimination if we did away with the basic myths that underlie their use.

For folks who are currently locked up in jails and prisons and detention centers, what could help them prepare for release to secure employment?

Despite all the barriers, it’s important to know that many of the people released from prison, including those who have been in prison for a long time, do really well in the job market. There is an unfair expectation that people with records should be willing to go to great lengths to get any job even if it’s a terrible job. We must challenge this idea. It is also true that people who go the extra mile to get or keep a job often succeed, including moving up into positions that are better paid and more interesting.

Throughout my research, I encountered many business owners, especially small and midsized, who were quite open to hiring people with records, and not only into the lowest-level jobs. It’s a big world, and there are many employers who have found that having a record or not has very little correlation with job performance. Businesspeople are business minded, and they actually just want to know who will show up for work, work hard, stay until the job’s done, and do it well. That is the basis on which they’re hiring—mostly they’re not trying to morally evaluate or decide whether they agree or disagree with the behavior someone was convicted for. They’re more invested in good employees. Those employers are out there. The key is to find them and not get discouraged in the process.

About the Author:

Melissa Burch is an anthropologist whose research and community work focuses on the experiences of people with criminal convictions in the United States, with an emphasis on how social hierarchies and inequalities are maintained and reproduced through processes of criminalization and punishment. Her forthcoming book explores the discriminatory use of criminal records in the southern California job market. She is the director of the Afterlives of Conviction Project, which aims to deepen understanding of the lived experience of criminalization and make scholarly data and concepts available to organizers, educators, and policymakers in engaging and useful ways. 

Accompanying Issue 38 FEATURE RESOURCE: While interviewing Melissa for this interview, Critical Resistance created a new employment resource for formerly imprisoned people and prisoners looking for work. Check out the resource on our resource hub here.