Hiring hurdle: Woman with record finds jobs hard to come by
An August CNBC survey found that there were 10 million open jobs in the nation — over 1 million more jobs than unemployed people.
Moreover, the report went on, nearly one-third of small business owners said they had open positions that they had been unable to fill for three months.
Rachel Dotts is finding that hard to believe.
The 30-year-old South Side woman has spent months trying to find a job, only to receive one rejection after another. She believes that she has the necessary skills for most of the positions for which she’s applied.
However, she’s got one other thing as well: A criminal record.
Not every turn-down has cited that record. But with a reported plethora of open jobs and her skills matching many of them, she believes her past is what employers can’t get past.
“These are jobs I have experience in,” she said. “Most of the jobs I apply for are cashier. I’ve been doing cashier for six years. These are places that are offering bonuses and hire-on incentives and all this big stuff. and I’m being honest; that’s what I’m being told to do.”
Her attempts to find work have taken her to local dollar stores, convenience stores, fast food restaurants and supermarkets. One retailer, she said, specifically told her she lacked the necessary experience for a cashier job, despite her multiple years in that position.
Dotts’ most recent brushes with the law have been minor ones. A misdemeanor retail theft charge in 2015, a misdemeanor attempt to provide drug-free urine during a drug test later that same year, and a summary disorderly conduct offense in January 2020.
But then there’s the big one.
In 2013, she pleaded guilty to a 2012 felony charge of manufacturing/delivering/possession of a controlled substance with intent to manufacture or deliver. She served 90 days in jail, then 90 more on home confinement. She fulfilled her parole requirements last year.
She’s also struggled with drug use, but is enrolled in a local Medication-Assistance Treatment program through which she receives suboxone.
Dotts has been unemployed since March 2020 when her temp position with an area plastics firm was eliminated, a situation she believes is also making it more difficult to get back her three children who are in foster care.
“I’ve been fighting to be clean for 13 years,” she said. “Even in my using days, I never had a hard time getting a job. Now I’m finally getting my (act) together. I’m telling employers, ‘Listen, I need this job.’ “
Dotts is not alone.
An analysis by the Prison Policy Initiative found that “formerly incarcerated people are unemployed at a rate of over 27% — higher than the total U.S. unemployment rate during any historical period, including the Great Depression.”
In Pennsylvania, mycleanslatepa.com reports, “nearly 1 in 3 – or three million – people have a criminal record.”
And while many states have laws prohibiting employers from asking about a criminal record dur checks on candidates being considered for a job.
However, according to the website of Weisberg Cummings, P.C., a Harrisburg employment law firm, “an employer must give the applicant a chance to explain what happened and make the necessary inquiries to determine if the explanation … is credible.” An employer, the law firm’s website goes on, can justify a rejection of employment if the applicant’s crime was related to the position being sought, or if the crime was “particularly heinous.”
Still, if a decision to not to hire an applicant is based “entirely or in part on the applicant’s criminal history record, then the employer must notify the applicant of this decision in writing and its basis on the applicant’s criminal history record.”
According to Dotts, that doesn’t necessarily happen.
“You don’t get any explanations,” she said, adding that two local retailers told her “we enter it into a computer and it just tells us if you’re qualified or not.”
“They can’t give me anything else. They can’t explain anything.”
If an applicant believes a rejection was unfairly decided because of a criminal record, he or she can take action.
“Unfortunately, the (CHRIA) statute itself does not have any black-letter guidelines that say, ‘If you do this, and it happened this long ago …’ “ Attorney Larry Weisberg of Weisberg Cummings said. “Ultimately, the courts flesh that out when there’s no direct guidance from the statute. At this point, there’s not a lot of case law out there.
“When we look at it, we kind of make our own judgment call and say, ‘Hey, this seems like it happened 20 years ago and it has nothing to do with working in a warehouse. We think it’s something that we or someone could pursue.”
Some employment turn-downs, though, are simply common sense.
“Sometimes, they’re more clear,” Weisberg said. “You have a history of child abuse and you want to work in a daycare, or forgery and you want to work in a bank — but there’s a lot of gray area.
“So employers have to use their judgment, and if we were to bring a case for somebody, we would have to use our judgment because there are not a lot of cases on point with us.”
Some employers may try to avoid the pitfalls of case-by-case analysis by simply having a blanket policy of not hiring applicants with criminal records. But Weisberg warns that even this could be problematic.
“Overarching policies could potentially impact something like Title VII, which protects against race discrimination,” he said. “It’s not necessarily invoking CHRIA, it’s saying you might be disproportionately rejecting minorities because of this blanket policy, as opposed to an individualized assessment.
“But somebody would still need to prove ultimately that they were affected in a discriminatory way.”
Weisberg believes most employers make earnest attempts to stay within the law. But many may not be aware of their responsibilities.
“There are employers who aren’t familiar with these laws, and there are plenty of employers who will tell someone on the phone, ‘This was the reason,’ and then not comply with the law because they may just not be aware of it.”
“Probably most of the bigger employers that are up on HR have robust, in-house attorneys and departments to deal with this, and probably handle it a little bit better. But there are plenty of small and mid-size employers that either don’t know about the law or they don’t care about the law, and so we see a fairly steady stream of these types of inquiries. Not all of them amount to legitimate cases, but there are plenty that do.”
As for Dotts, she remains discouraged by not defeated.
“I’ve been going through a hard stage in my life,” she said. “I’m trying to stay clean right now and I’m trying to get my children back. So I keep applying. I keep applying.”