The Human Rights of Persons With Criminal Histories

Established Human Rights Principles on Work Universal Declaration of Human Rights: Article 23: Everyone has the right work OAS Declaration of the Rights & Duties of Man, Art. XIV: Every person has the right to work International Covenant on Economic, Social, and Cultural Rights Art. 6: the right to work..includes the right of everyone to the opportunity to gain his living by work…

Maryland Court of Appeals I Singer v. State, 72 Md. 464, 19A (1890) No one questions the right of every person in this country to follow any legitimate business or occupation he may see fit… His own labor, and the right to use it as a means of livelihood is a right as sacred and fully protected by the law as any other personal or private right. Singer, at 1045.

Maryland Court of Appeals II Singer v. State, 72 Md. 464, 19A (1890) again: State can qualify, or condition the right to work The nature and extent of the qualifications required must primarily depend on the judgement of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable application, no objection to their validity can be raised.

Some Qualifications Set By the State School Employees: Persons convicted of Sexual Crimes or Crimes of Violence Respite/Personal/Dependent Care providers: persons convicted of a felony, any crime involving moral turpitude, theft, or criminal history indicating behavior that is potentially harmful to those under care Correctional Officers: Felony conviction for aggravated assault, murder…

State Laws Requiring Background Checks Facilities and Individuals Caring for children Health care facilities Drivers: Cabs, government, non-profits Security System Personnel DOJ personnel

All Employers Should Have Policies Legal Bar = policy (i.e. school employees) Legally required background check DOES NOT = a policy (still must say what is disqualifying) Unwritten Rules DO NOT = a policy Policy should be in accordance with Title VII Directives of EEOC

Title VII of Civil Rights Act Cant discriminate on the basis of Race Neutral Testslike criminal records (and credit) screening, can be considered to be racial discrimination Employer can avoid this by showing the screening is JOB RELATED and CONSISTENT with business necessity

What Must Employers Do? They Must Have Policies with THREE PRONGS that consider: Nature and gravity of the offense The time that has passed since the conviction and/or completion of the sentence The nature of the job held or sought and the job relatedness of the offense(s)

What Employers Cannot Do No Broad Based Prohibitions --We dont hire anyone with a conviction, regardless of the crime Too Broad a policywill screen out minorities at a higher rate than whites & violates Title VII No ArrestsMust Be Convictions

Pardons Recommendation by Maryland Parole Commission (which has guidelines relative to being crime free) Purely Discretionary Act by Governor Commutes the SentenceDoes not remove it from record, though pardon is noted Expungement then must be filed

Child Abuse & Neglect Registry State (DHR) maintains a listing of those found responsible for child abuse or neglect Responsible = Indicated or Unsubstantiated Indicated = credible evidence not refuted Unsubstantiated = insufficient evidence to support a finding either way

Child Abuse & Neglect Registry State (DHR) maintains a listing of those found responsible for child abuse or neglect Responsible = Indicated or Unsubstantiated Indicated = credible evidence not refuted Unsubstantiated = insufficient evidence to support a finding either way

RegistryNotice & Appeal Within 30 days of investigation, DSS shall send a notice to person found responsible for indicated or unsubstantiated Includes finding and appeal process Must Appeal within 60 days of notice Can be waived for good cause Prior to 1999special rules ConferenceThen Hearing

Expungement: A Limited Tool Convictions Cannot Be Expunged (unless homeless related nuisance crimes) A Conviction will extinguish your right to expunge if you havent exercised it For PBJs and Stets, must wait three years from entry to even file expungement petition merger concept

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