"LET US WORK, MAN": ASSERTING RIGHTS TO EMPLOYMENT FOR INDIVIDUALS WITH CONVICTION HISTORIES IN AUSTIN, TEXAS.

• Date: 01 April 2024
• Author: Marek, Elissa Underwood

Introduction 1065
                I. The (Grass)Roots of the Ban the
                Box and Fair Chance Hiring
                Movement 1068
                II. Collaborative Policymaking & Community Engagement in
                Austin, Texas 1078
                III. Radical Resilience in Response to
                Preemption in Southern States
                 1086
                IV. Local Governments as Facilitators
                of Equitable and Sustainable
                Economic Advancement 1090
                Conclusion: All of Us Amplifying Voices, Asking Questions
                Asserting Abolition 1094
                

INTRODUCTION

Conviction histories and criminal records often create barriers to economic security by preventing access to stable employment. (1) Although scholars and policymakers have advocated for federal Ban the Box legislation to protect individuals with criminal histories, that call has not been completely answered. (2) While the federal Fair Chance to Compete for Jobs Act prevents federal agencies and contractors from inquiring into criminal histories prior to making conditional offers of employment (with some exceptions), (3) and many states have enacted laws to reduce obstacles to public sector employment for people with criminal records, this movement is not yet widespread in the private sector. (4) Moreover, disparities persist such that disproportionate numbers of low-income people of color suffer imprisonment and continue to suffer disparately post-incarceration. (5) Although municipal governments have long imposed harsh ordinances that impede occupational licensing for individuals with criminal histories, local governments have also emerged as leaders in this arena, particularly by passing fair chance hiring ordinances. (6) Such ordinances have the potential to provide positive economic outcomes--employers benefit from a more diverse pool of talent; formerly incarcerated job applicants are eligible for new opportunities, can avoid further involvement in the criminal legal system, and can help solve the extreme labor shortage; and the economy thrives as more people, including those with criminal records, can engage with and invest in local businesses. (7)

In 2016, Austin became the first city in the southern United States to pass a fair chance hiring ordinance for both public and private employers. (8) The legislation prohibits employers with 15 or more employees from considering criminal background checks prior to making conditional offers of employment. (9) Representing the culmination of several months of work by formerly incarcerated people, local activists, businesses, and City Council members, this success in Texas was particularly meaningful considering the area's long history rooted in slavery, discrimination, and mass/hyper incarceration of people of color. (10) During the legislative session following the ordinance's passage, Republican Representative Paul Workman filed House Bill 577, which would have invalidated local laws, including the Austin ordinance, that regulate private employers' ability to "request, consider, or take employment action" based on applicants' criminal record information. (11) Organizers, including those who had advocated for fair chance hiring locally in Austin, continued their fight at the state level; they lobbied state legislators to help them understand the significance of the ordinance and also held a press conference at the Texas Capitol with signs that said "Let Us Work, Man." (12)

Three years later, another bill was proposed that would have barred municipalities from regulating employers' decisions regarding job applicants' criminal records. (13) While neither of those bills passed, a similar "Death Star Bill" that was proposed during the 2023 legislative session did pass and would have gone into effect on September 1 but for a lawsuit filed by the City of Houston. (14) In that case, Travis County District Judge Maya Guerra Gamble ruled that the proposed law, which would severely curtail cities' ability to enact rules that would benefit local communities, was unconstitutional. (15) The Texas Attorney General appealed the district court's decision, immediately staying the district court's order pending resolution of the appeal. (16) Although the law in Texas is currently effective and likely to remain so, the local government's lawsuit reiterates the importance of amplifying marginalized voices and can serve as a model for other cities trying to assert rights for their constituents.

This Article foregrounds the role of local government as an innovator in terms of fair chance hiring policies, employing Austin, Texas as a case study. Part I focuses on the grassroots development of the Ban the Box movement and fair chance hiring ordinances in various cities, led by formerly incarcerated persons with the support of local government. Part II looks specifically at the collaborative process that took place in Austin and that privileged the voices of individuals directly affected by the criminal legal system. Part III highlights preemption attempts in southern states, as well as responses to them, which represent a type of radical resilience and a move toward effecting change in the criminal legal and labor contexts in conservative regions. Finally, Part IV underscores the significance and role of local governments in amplifying the voices of directly impacted individuals and communities to achieve equitable and sustainable economic advancement. This Article concludes by addressing limitations, raising new questions, and making suggestions for next steps.

I. THE (GRASS)ROOTS OF THE BAN THE BOX AND FAIR CHANCE HIRING MOVEMENT

Individuals with criminal convictions and formerly incarcerated people experience discrimination when they return home and apply for jobs, perpetuating cycles of incarceration. (17) According to the National Employment Law Project, about 70 million people have arrest or conviction records that prevent them from getting jobs despite having relevant knowledge and skills. (18) Moreover, as sociologist Devah Pager has shown, criminal records present a significant impediment to obtaining work, and that difficulty is exacerbated by race. (19) Once a potential employer learns of an applicant's criminal history, the chances of that job seeker receiving a callback decreases by 50%. (20) The effect is even worse for Black men, where only one in three receives a callback. (21) Although Pager's research showed that employers were hesitant to hire Black people even without criminal records, they became more reluctant to make job offers when they were aware of a known criminal history. (22) Subsequent research also illustrates the correlation between criminal records and obstacles in the hiring process. (23)

All Of Us Or None, a grassroots organization that advocates for the human and civil rights of currently and formerly incarcerated people and their families, also learned of these struggles after hosting Peace and Justice Community Summits in 2004 and 2005, during which people with conviction histories shared similar experiences of employment discrimination they faced while attempting to rejoin their communities. (24) The organization sought to increase employment opportunities and economic stability for people suffering the direct and disproportionate effects of the criminal legal system. Thereafter, it initiated efforts to Ban the Box, seeking to preclude employers from asking whether someone has a criminal conviction as part of an employment application. (25) Through its work, All Of Us Or None learned that in 1998, Hawaii enacted the first law in the United States prohibiting public and private employers from asking about criminal histories prior to making conditional job offers. (26) The movement has continued to advance, in large part due to the work of All Of Us Or None, which has devoted almost 20 years to this cause--first by focusing on banning the box in public employment and setting an example for private employers, then by foregrounding the importance of banning the box in housing applications, later by successfully encouraging the United States Equal Employment Opportunity Commission (EEOC) to improve their guidelines, and currently by advocating for nonprofit employers to become part of the campaign and create opportunities for vulnerable populations. (27)

All Of Us Or None's endeavors established the grassroots foundation on which other states, cities, and counties could build Ban the Box movements and craft fair chance hiring policies. (28) The organization has led the way in California, and central to its approach is the involvement and leadership of people directly affected by the criminal legal system, particularly formerly incarcerated people. (29) The group, comprised of people with little or no experience with governmental policy, began its campaign in San Francisco and learned valuable lessons during that process. (30) Those lessons included collaboration with the city's Human Rights Commission, preparation of a resolution and acceptance of some--but not all--modifications from city staff, participation in outreach efforts that involved collecting signatures in various neighborhoods, execution of a media campaign highlighting testimonies on the radio and in newspapers, communication with and receipt of input from Boston's human resources department that had just implemented that city's policy, and education on the human resources process to learn hiring processes, analyze policies, and assist in writing guidelines. (31) The thorough and thoughtful approach became the basis for All of Us Or None's later campaigns throughout the region. (32)

Key to the organization's success was the cooperation and support of local government entities and their staff. As the group moved forward in Oakland, East Palo Alto, and Berkeley, members worked in partnership with other nonprofit organizations like Critical Resistance; planned outreach efforts at drug treatment centers, community barbecues, and other community events; and met with city and county human resources personnel, which was extremely successful. (33) In Alameda...