Molly Kovel testified in front of New York City Council on Fair Chance Act

Yesterday The Bronx Defenders’ Legal Director of the Civil Action Practice, Molly Kovel, presented written and oral testimony before the New York City Council Committee on Civil Rights regarding The Bronx Defenders’ enthusiastic support for the proposed Fair Chance Act, which would protect the thousands of people with criminal records in New York City against some of the devastating enmeshed penalties associated with criminal justice involvement. 

Read the full testimony here:

Written Comments of The Bronx Defenders

New York City Council Committee on Civil Rights
Hearing Regarding Int 0318-2014, A Local Law to amend the administrative code of the city of New York, in relation to prohibiting discrimination based on one’s arrest record or criminal conviction.

December 3, 2014

My name is Molly Kovel, and I am the Legal Director of The Bronx Defenders’ Civil Action Practice. My work is focused on the civil rights and employment of people with criminal records. Founded in 1997, The Bronx Defenders provides holistic civil legal services, criminal and family defense, social services and community programs to over 35,000 low-income families in the Bronx each year. I submit these comments on behalf of The Bronx Defenders, and thank the City Council for the opportunity to testify. We are thrilled to be here today and speak about our enthusiastic support for Intro 318, the Fair Chance Act (or “FCA”).

In my career I have trained dozens of attorneys and workforce developers, and hundreds of community members, regarding employment and criminal records. Every client inevitably asks what to do about “The Question”? They refer, of course, to the “Do you have criminal convictions?” question that appears on the vast majority of job applications these days.

As you will hear a lot today, this stressful question has been an intractable barrier to thousands of people with criminal records who are applying for work. The Fair Chance Act will help these people to access stable employment without putting employers at risk: employers will still get to do background checks and the fundamental contours of Article 23-A are unchanged.

I want to focus on a few particular elements of the Fair Chance Act that may be otherwise overlooked today.

First, I wish to address the major problem of criminal record errors. In our experience, nearly one in three official, fingerprint-based RAP sheets contains a blatant error of some kind—mostly dismissed cases and violation-level convictions that should have been sealed under the New York Criminal Procedure Law §§ 160.50 and 160.55. These errors are compounded and multiplied in privately-procured background checks from unofficial sources.

People who have errors on their rap sheet may not even know that a criminal record will show up on their background check. Indeed, their defense attorneys advised them at the conclusion of their criminal cases that they would have no criminal record. When these people apply for jobs, they often answer “no” to the question, “Have you ever been convicted of a crime?” The Fair Chance Act will protect this group; Sub-section (b) of the law provides that an employer must give the applicant the chance to review their own background check for any errors. In my experience, this practice almost never occurs, and people who do not in fact have any convictions are routinely denied work because of errors in their record.

The Fair Chance Act is simple and clear about what is required of employers here. Because the review of the background check occurs after the interview, when the applicant has had a chance to establish a rapport with an employer, the FCA is much more likely to preclude discrimination based on a record error. While the seven day waiting period may seem long to employers, in my very extensive experience correcting criminal record errors, this is the bare minimum necessary to do so.

Second, I want to address Sub-section (a)(i) of the bill. The Fair Chance Act would extend the Human Rights Law to cover current employees who are convicted. At The Bronx Defenders, I have met and represented hundreds of clients in this position. Because of the gaps in the State and City laws, there is now no requirement that a current employer consider the relationship, if any, between the nature of a conviction and the job duties. Thus, we have met a housekeeping employee at a hospital terminated for a misdemeanor patronizing a prostitute charge. We have met a Consolidated Edison employee terminated for a misdemeanor marijuana conviction that occurred off the job. We have met a clerical worker at a Home Health Agency who was terminated for getting into an argument with her ex-husband about a custody situation which resulted in a non-criminal harassment violation conviction.

The Fair Chance Act would mandate that these workers cannot be terminated unless the job duties and the conviction bear some direct relationship to one another, or the employee presents an unreasonable risk to property or to the safety or welfare of the public. The FCA will thus spare thousands of low-income New Yorkers the cataclysm of losing one’s livelihood as a result of a conviction. In this era of Broken Windows policing, when misdemeanor arrests in the City exceed 225,000 annually, we need strong protections to ensure that these low-level arrests do not completely disrupt whole families due to the loss of a precious job.