Letter: Fair Chance Hiring ordinance may be ripe for a court challenge
January 16, 2023
Recently the City of Gainesville passed an ordinance that prohibits employers from inquiring about an applicant’s criminal background before extending a job offer. The major change appears to be doing the criminal background check last instead of first.
I have no problem with giving a second chance to someone who has a criminal record depending on what that record is. The character of someone who uses violence and causes injury or worse in a carjacking is probably not the same as someone who shoplifted a pair of sneakers. And while someone with a job may be less likely to offend again, there are no guarantees. I think it important to recognize that all prior offenders are not equal. Not all have the desire to go straight and will if given an opportunity.
Because of that, I see the new ordinance as a feel-good effort that will produce little of what it claims will be accomplished and creates burdens and liabilities for employers. Javon Harris, a social justice reporter for the Gainesville Sun, has written a couple of articles about this ordinance. Some of the comments/claims in the articles are:
Those in favor say people with criminal backgrounds are less likely to re-offend with steady employment.
I don’t know if this is a provable fact. Sounds like an opinion. How do we know this – studies?
“Pervasive questions about criminal records on job applications and interviews prevent former offenders from being seen as they are today.”
How do we know how they are today? Just because someone is applying for a job doesn’t mean they are any less inclined to offend or any different than before their incarceration. Most probation programs require a person to seek work. A significant portion of the criminal element are sociopaths who are very adept at portraying themselves as something they are not.
The unemployment rate for formerly incarcerated is compared to unemployment during the Great Depression (higher).
This is irrelevant, a non sequitur comparison, apples and oranges intended to appeal to emotions.
A quote from Mayor Lauren Poe is laughable – “tremendous impact on our community.”
How so? How does he define tremendous? Are thousands or hundreds or dozens or just a couple of prior-convicted people going to get hired? I wouldn’t call a couple of hires a tremendous impact. Sounds good in a speech.
“Much needed expansion of the labor pool?”
How does the ordinance change the labor pool? The labor pool is the same. It’s not going to change because a criminal background check is done later.
Just how many formerly incarcerated people are there in Gainesville seeking employment? Seems like it must be a very large number, much larger than I’d expect. What is that number?
Commissioner Saco said the measure would reduce unemployment.
Possibly, but only if a hire is made. And if that job opening was filled by someone without a criminal record, that would also reduce unemployment. It is irrelevant whether the job is taken by a person with a criminal record or not. If you reduce unemployment by one or two, is that a tremendous impact? Just more political word salad to obfuscate and make things sound wonderful for those that don’t think things through.
I’m not clear about what the opening sentence in one article means: “Criminal records can no longer block a job applicant’s chance for employment in Gainesville.” The implication is that a criminal record cannot be considered in an employment decision and that an individual, if otherwise qualified, has to be hired. But that’s not what the ordinance actually says, according to a later statement in the article. It says the policy would not require an employer to hire an applicant with a criminal record but shifts the timing of the background check.
So, what does shifting the timing do? It requires the employer to spend effort going through the rest of the normal hiring process before finding out that the individual has a record that the employer considers disqualifying. This is a waste of time and money.
But more than just shifting when a background check can be made, the ordinance says, “after a job offer has been made,” or at least that’s what the article claims. I have to wonder about the legalities involved here. Is the employer open to a lawsuit if they make an offer, then see the criminal record and rescind the offer? I’d bet in our litigious society the answer is yes.
Another factor that comes into play when hiring previously incarcerated people is employer liability in regard to customers and performance of work. What happens if the hire is not a model citizen and commits theft or an assault or assembles a defective product? The employer will be on the hook for any lawsuits for having introduced the criminal element into the other person’s life. The point is, employers have great responsibility for how their businesses operate and thus should not be coerced into questionable hires.
I have personal experience where a prior felon was hired, and it was a mistake. The circumstances are slightly different from the ordinance in that there was no background check before or after the hire, but the results of a bad hire were the same.
When I moved from Marion County to Alachua County, I hired a local Gainesville moving company. I had one room in the house I was moving from marked “Do not enter, and nothing from this room is to be moved.” The door was closed but not locked. In that room were a number of things that were not being moved. One was a container in which I had several weapons, ammo, and gun accessories. This container was hidden among other boxes and covered. One would have to look hard to find it. I briefed the movers that there was no need to enter that room.
On moving day, there were two trucks with three movers in each. After they departed for the new house, I retrieved the container with the weapons and took it to the new house. When I opened it to put my weapons where I keep them, I saw that my Glock 19 was not present. I kept the Glock in a holster with a belt and spare magazine. I was sure I had put the Glock in the container but had second thoughts. I called my son and had him check at the old house, and he found the holster and belt stuffed under a bed. The Glock and spare magazine were gone.
I immediately contacted the owner of the moving company. He was adamant that I must be mistaken and none of his people would do that. But the only people there were the movers and me. The owner did some checking, and two employees in one truck said the third employee had showed them the Glock. I made the offer that if the weapon was returned within 24 hours, I would not pursue further action. It was not returned. And the employee that had displayed the weapon never came back to work.
I reported the theft to the Sheriff, and an investigation was opened. It took some time, but the thief was caught. Turns out he was a three-time felon who had been released three months earlier after serving three years for assault and a felon in possession of a firearm. No background check had ever been conducted on this individual. But he was never prosecuted because the other two employees that he had shown the weapon to feared for their lives and refused to testify. No witness, no case. The weapon has not been recovered.
Granted, this is slightly different than a case in which a background check is performed. But the felon still might have been hired. The point is employer liability and, even more, important customer safety. What would have happened if I had discovered the felon in the room with the weapon? Would the confrontation have ended in me being shot? I would have had no chance since I don’t carry in my own home.
Fortunately, that did not happen. But now this felon knew I had other weapons and he knew where I lived and he knew the layout of my house. As a result, I was forced to take measures to ensure my safety should the felon ever come back.
I also wonder where the City (commissioners) get the authority to dictate to employers how they will conduct their hiring process. It seems like this is ripe for a court challenge.
Greg Parsons, Alachua
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