The Impact of Employment Restriction Laws on Illinois' Convicted Felons

Introduction

Over the past three decades, at least 1.5 million men and women have been convicted of felony charges in Illinois.^[1] Even after they have satisfied their probation or prison sentence, they face a range of “collateral consequences”—penalties, disabilities, and other disadvantages imposed as a result of a criminal conviction, some lasting a lifetime.

Eligibility restrictions for certain jobs, housing options and educational opportunities based on a person’s prior criminal history have been enacted over time to protect the public from future victimization under the principle that past behavior is predictive of future actions.^[2]

They are also designed to serve as a crime deterrent, particularly for youth. However, collateral consequences create barriers to rehabilitation in the aftermath of a criminal conviction, as they limit employment prospects, constrain wages, and limit wage growth.^[3]

Employment restrictions based on criminal history can preclude convicted felons from gaining or retaining employment in certain career fields, particularly those requiring an occupational license to serve vulnerable populations (children, the disabled and the elderly). Even in career fields from which they are not barred, convicted felons must disclose their convictions to potential employers as part of the background check process. The prevalence of employment background checks is great; it is estimated that at least 30 to 40 percent of employers conduct checks on potential employees, although the percentage may be as high as 73 percent.^[4][5] Applicants with criminal records can be significantly affected, since studies have shown that possession of a criminal record reduces the likelihood of a call-back after a job interview by nearly 50 percent.

Given that Black men are disproportionally involved in the criminal justice system, the negative effect of a prior criminal history has more substantial impact for this population.^[6] A recent national study found that Black men with felony convictions experienced up to a 5 percent reduction in their employment rate compared to White men with felony convictions. This difference has been associated with differences in educational attainment and workplace discrimination.^[7]

Acknowledging the proliferation of increasingly severe collateral consequences across the country, the federal Uniform Collateral Consequences of Conviction Act was enacted in 2010.^[8] Subsequently, Congress added a provision to the Court Security Improvement Act of 2007 directing the National Institute of Justice (NIJ) to study collateral consequences in the United States. NIJ awarded a grant to the American Bar Association (ABA) to create the National Inventory of the Collateral Consequences of Conviction. The ABA on-line database includes state-by-state compilations of statutes and regulations that restrict those with a felony conviction from voting, driving, certain business opportunities, and being granted certain occupational and professional licenses. Using the ABA database, Authority researchers examined Illinois state employment statutes to shed light on the impact of collateral consequences on convicted felons in the state. In addition, researchers cross-referenced database information with a 2013 Authority study on state employment restrictions. Results were summarized using the occupational classifications developed by the U.S. Department of Labor Bureau of Labor Statistics.

Key findings

According to the ABA, 1,449 Illinois statutes constrain convicted felons’ rights, entitlements, and opportunities. Of those constraints, 77 percent impose restrictions on convicted felons’ employment, occupational licensing, and business activities. Moreover, the majority of those restrictions are mandatory, automatic, and permanent. Statutes in the Personal activities category restrict convicted felons’ ability to obtain drivers or recreational licensing; participate in government, political, and civic life; vote; and access public housing and educational grants. Procedures for re-instating rights and revoked privileges are offered in some statutes, but only six percent of Illinois statutes enumerated in the ABA database provide an avenue for relief from collateral consequences.

Figure 1

Restrictive statutes, types, and totals

The ABA database included information on collateral consequence conditions. Mandatory and automatic consequences must be imposed upon felony conviction. Over half, 55 percent, of restrictive occupational licensing and employment statutes are mandatory and automatic. Discretionary consequences, 45 percent of the restrictive statutes, may be imposed by the employer or licensing entity. Discretionary consequences can be problematic if it is undocumented or unclear how consistently they are applied.

Time limits, usually five to 10 years, may be imposed on both types of consequences. Time limits usually set as a fixed number of years after satisfactory completion of the felony sentence, provided there was no further criminal justice system involvement. However, 50 to 60 percent of occupational licensing statutes have permanent restrictions, whether the consequence is discretionary or mandatory (Table 1). Licenses with mandatory restrictions include nurses and certified nursing assistants; licenses with discretionary restrictions include barbers, health care workers, ride share drivers, and realtors.

Collateral consequences without a specified time limit are permanent, and are sometimes referred to as a lifetime ban. Table 2 shows the type of permanent employment ineligibilities most frequently listed in the state statutes.

Statutory restrictions to employment present particular challenges to convicted felons. The U.S. Department of Labor predicts health care and transportation will be the fastest growing employment areas through 2024, but convicted felons are restricted by statute from working in either area. They also are restricted from other fast-growing occupations, including: nurse, nurse assistant, home health aide, general and operations manager, materials mover, and truck driver.

Implications for policy and practice

New legislation

The U.S. Department of the Treasury Office of Economic Policy suggested among its occupational licensing best practices limiting requirements to those that address legitimate public health and safety concerns. Illinois was listed as one of the states that proposed reforms reflecting these best practices. In 2016, new legislation was passed that addressed collateral consequences for occupational licensing.

Under current law, healthcare providers must certify compliance with all requirements and regulations pursuant to the Illinois Health Care Worker Background Check Act (225 ILCS 46) for employment purposes. This Act requires providers to terminate or prevent the hiring of individuals found to have disqualifying criminal convictions—listed in the Illinois Administrative Code (77 Il. Admin. Code 955.Appendix A)—unless a waiver is granted by Illinois Department of Public Health (IDPH).

Public Act 099-0886 reduces the scope of criminal offenses that disqualify an individual from obtaining a Healthcare Worker Waiver. Effective January 1, 2017, Public Act 099-0886 (20 ILCS 2105/165) will allow a licensed health care worker convicted of previously disqualifying forcible felonies to petition IDPH for a waiver. This waiver does not change a criminal record but allows an employer to hire a health care worker. Also, applicants with a felony conviction who are seeking licensure may also file a petition for a waiver. Waivers will not be granted unless five years have passed since the conviction or more than three years have passed since release from confinement for that conviction, whichever is later.

Public Act 099-0876 provisions state that a felony conviction cannot be the sole reason for rejecting an applicant’s request for a license in occupations of funeral director, embalmer, roofer, barber, cosmetologist, esthetician, hair braider, and nail technician. In addition, such licensure decisions must take into consideration rehabilitation efforts and other mitigating factors specifically related to the occupation. Licensure denials must be made in writing to the applicant. The Illinois Department of Financial and Professional Regulation will be required to issue an annual report on licensing decisions made in regard to applicants with criminal records beginning in 2018.

Policy makers should expand the eligibility criteria to allow greater access to diversionary programs that prevent felony convictions.

Research has found that prosecutorial diversion and specialty court programs can provide the means to prevent certain felony convictions that hinder employment and career opportunities. For example, drug courts use teams of judges, state’s attorneys, probation officers, and service providers to offer a highly structured program of supervision and treatment to pre-adjudicated and convicted felons, who can avoid a felony conviction upon successful program completion. Given that drug-related convictions account for a large proportion of both probation and prison sentences in Illinois each year, a focus on case disposition options that offer drug treatment and rehabilitation as a means of avoiding a felony conviction can go a long way to preserving employment eligibility for many offenders.

Illinois requires every judicial circuit to operate a drug court [730 ILCS 166] in recognition of the need to address the drug crime issue and its associated costs. While this and other criminal justice diversion initiatives are typically only available to first-time or low-level offenders, participation can be expanded to include others without reducing public safety.^[9] Potential participants should be assessed based on recidivism risk rather than solely on their charges or criminal histories.^[10] Assessors should rely on the evidence-based Risk-Need-Responsivity model. This model states that a detailed assessment should guide supervision and treatment decisions. In particular, supervision levels should match an offender’s risk for reoffending (the “risk” principle); treatment should focus on identified criminogenic needs (the “need” principle); and interventions should be tailored to fit the motivation and strengths of the offender (the “responsivity” principle).^[11] By using the Risk-Need-Responsivity model to divert offenders toward specialty courts, assessors can expand an effective diversion program, thereby ensuring public safety, saving tax dollars in incarceration costs, and helping to alleviate the collateral consequences faced by felony offenders re-entering their communities.

Criminal justice professionals and advocates should engage in more concerted efforts to educate and assist individuals in completing criminal record relief procedures.

Criminal record expungement and sealing

Criminal record expungement and sealing reduces the impact of a felony record on employment prospects by removing offenses from a person’s criminal history or shielding them from view of prospective employers. Expungement either destroys the record of an offense and removes it from official indices or returns the record to the individual. Record sealing makes records accessible only by court order and only to law enforcement agents, courts, and select employers required by law to have access to felony records. When an individual’s records are sealed, his or her name is removed from any official index or public record indicating he or she has been convicted of a crime. Most employers are not eligible to view sealed records. A Governor’s pardon is the only other option for convicted felons to clear their records if they are ineligible for an expungement or record sealing.

Illinois law [20 ILCS 2630/5.2] specifies the types of arrests, supervisions, and probations which qualify for expungement or sealing. The Illinois Office of the State Appellate Defender’s website contains information on eligibility criteria and the process for expunging or sealing criminal records, a legal procedure that may be accomplished without an attorney.

While only persons who have never been convicted are eligible for record expungement, those successfully completing special felony drug probation and other felony diversion programs may be eligible for this permanent record removal or for records sealing. However, program participants may not always take advantage of this benefit, due to lack of information and assistance with the process. In fiscal year 2015, The Illinois State Police received 9,617 petitions from the courts to have records expunged from the Illinois State Police Criminal History Records Information System, and 6,179 petitions to have records sealed. Within the context of approximately 49,000 felony convictions per year from 2010 through 2014,^[12] an estimated 20 percent potentially eligible convicted felons petitioned for expungements and 13 percent petitioned for sealed records.

The importance of record expungement is highlighted in a study of exonerees in Illinois, New York, Texas, and Florida. Researchers found that those who had not expunged their records still suffered the obstacles created by a felony record and were more likely to re-offend, especially if they had no prior offending history.^[13] Conversely, those who expunged their records were less likely to re-offend, regardless of their criminal histories.^[14] New York, the state with the most favorable expungement laws, recorded significantly fewer offenses committed by exonerees as well as the highest rate of expungement.^[15] These findings suggest that expunging one’s record may have a positive influence on future outcomes.

Certificate of Relief from Disabilities

Convicted felons may avoid the collateral consequences of a conviction by obtaining a Certificate of Relief from Disabilities (CRD) from the circuit court. Non-violent convicted felons with no more than one felony may obtain a CRD from the Illinois Prison Review Board. To qualify, the Board must determine that no direct relationship exists between the job sought and the crime committed by the convicted felon, and that the conferral of a CRD would result in no unreasonable risk to property or public safety. CRDs or their equivalents allow convicted felons to obtain licensure in 18 professional fields and are available in Illinois, Arizona, California, Nevada, New Jersey, and New York. Evidence shows that while CRDs are an effective way to alleviate the collateral consequences of a conviction, they may still be underutilized.^[16]

Health Care Worker Waiver

Given the projected increase in health care worker jobs, convicted felons interested in these careers may apply for a Health Care Worker Waiver from the Illinois Department of Public Health. This waiver allows employers to hire people with certain felony convictions in health care jobs. SB0042, described above, would provide a means for qualified convicted felons to reinstate their waivers, and provide additional privacy regarding a conviction over five years old.

Researchers should conduct more empirical studies on the collateral consequences of having a criminal record for individuals, families, and communities.

Little empirical research is available on the effects of collateral consequences.^[17] More research is needed to understand the scope of these consequences and their impacts on public safety, on individuals with felony convictions, and on their families and communities. HB5973, described above, requires an annual report which would provide additional statewide information for researchers to analyze the number of occupational licensing applications from convicted felons, and their dispositions.

Further research might examine how felony convictions impact the employment opportunities, wages, educational standings, credentials and certifications, and job-seeking experiences of convicted felons in Illinois. Lastly, more research should examine the use and efficacy of remedies discussed in this article: programs that prevent felony records, records expungement and sealing, Certificates of Relief from Disabilities, and Health Care Worker Waivers.