Poor get slammed on the job, Philly lawyer says

Sharon Dietrich didn't grow up poor -- her father was a steelworker, her mother a housekeeper and they lived near Reading. The family was solidly blue-collar and middle-class and Dietrich was the first in her family to graduate from college.

But when Dietrich, 55, started practicing employment law at Community Legal Services shortly after a federal court clerkship, she learned an immediate lesson about class and the workplace: It hurts to be poor.

"The employment law needs of poor people were different than the employment needs of the middle class," said Dietrich, litigation and managing attorney of CLS's employment law practice. "There's a level of exploitation that is entirely different than most middle-class people have."

Lower income people, Dietrich said, more often fall prey to wage theft, where they don't get paid for the work they've done. "Immigrants are especially vulnerable to employers screwing them over," she said.

Dietrich said that when she joined Community Legal Services in 1987, she figured she'd be doing mostly racial and sexual discrimination workplace cases, but it turned out differently.

"I think they put me in this job because I was coming from a federal court clerkship, and the idea was that employee law tended to be litigated in federal court," she said. "But what's interesting about that is I spend much more time in the Criminal Justice Center, than I do in any other court. I spend some time in federal court, but really the CJC, doing expungement hearings. Things of that nature is really where our action is at. Nobody, least of all me, would have anticipated that when I started here in 1987.

"I think mostly the barriers to employment that low-income people have now with criminal records being at the top of the list, but also child-abuse records. I realize anybody in any job can really have a hard way to go, but low-income workers tend to have even less of a foothold in the labor economy."

Von Bergen: When did you start getting interested in the issue of criminal records? [Click here to learn about a new law involving sealing criminal records in Pennsylvania.]

Dietrich: I still remember the first time a client came and said that he had a criminal record, and was fired for it, and was there something that could be done about it. The reason I remember that decades later was that this was just not my conception of employment law. We did at that time race discrimination cases, sex discrimination cases, the same as all the other private employment lawyers. I remember listening to this guy's story, and thinking, "That's really interesting. I bet that happens to other people." I was shocked that I hadn't seen it before. I started to immediately think about remedies that might apply to this problem.

Von Bergen: How has the criminal record situation changed?

Dietrich: Back in the day there just weren't records available all over the place. So, if you had a record, chances were that an employer were not going to find out about it unless you told them. Then by computerizing records and selling them to background screenings companies, or the data being more readily available, it just all exploded, and that now everybody knows what everybody's record is. One of the things that they say here that also rings true to me, is that everybody with a record no matter how minor or old, even non-convictions are held against them.

Von Bergen: What else expanded the look into criminal records?

Dietrich: There was the whole 9/11 aspect of this as well, right. [After the terrorist attacks on Sept. 11, 2001], everybody got more security conscious, but as with many things with criminal records, the punishment often does not fit the crime. So yeah, we had 9/11, therefore we're going to do background screening on everybody in every workplace doesn't necessarily make sense, while turning down people with records that don't present anything like that level of threat. So 9/11 was clearly a driver as well.

Von Bergen: There have been some significant lawsuits. Tell me about the one involving the Older Adult Protective Services Act. (Here's a story I wrote on the issue.)

Von Bergen: What's the issue?

Dietrich: The issue was that this law prevented you from working in the field legally [if you had a conviction]. It legally prohibited you if you had any conviction from murder on one end of the spectrum to library book theft on the other end.

Von Bergen: Did you ever have a library book theft case?

Dietrich: Not too many. We do have lots of minor theft cases that disqualified people. Minor theft cases and drug cases were the ones that really stuck out. It was a lifetime ban. It didn't matter how long it had been. Didn't matter what your rehabilitation had been. Didn't matter how long you worked in the field. We found out that this law passed because the waiting room got full of people who said, "They tell me I can't work anymore. Is that right? I've been a Certified Nursing Assistant all my life."

We looked into it, and sure enough this one had passed, and we didn't know about it. We filed litigation in about the year 2000, claiming it was unconstitutional under the state constitution.

Von Bergen: How so?

Dietrich: Because under our state constitution you have a right to work in a lawful occupation. This was keeping people from working in this field. Commonwealth Court agreed with that, and the Supreme Court agreed with that. You think, "Yay! We won. It's all fixed," but the problem was that we had sued on behalf of a number of individuals. We had not sued in a class action, so the law still stayed on the books. We thought we were going to be able to get the legislator to fix it once it had been declared unconstitutional, but that never happened.

So again, last year we filed a new case. We didn't file it as a class action, but we specifically said to Commonwealth Court, "You should not only declare this unconstitutional again, you should enjoin it from being applied by the state." In other words, if they're not going to fix the law so that it it's more carefully constructed, they have no law in place. Remarkably, by a vote to seven to nothing, Commonwealth Court agreed with that. To get seven judges on the same page, on that type of issue, I think really shows how things had changed from earlier on in the century up until now.

Von Bergen: So how did that play out? It sounds like there is no valid law in place.

Dietrich: The legislature still didn't get it together.

Von Bergen: I remember that you and others sued the U.S. Census Bureau about the use of criminal records. In fact, the woman you represented had been a census taker in an earlier census, but was turned away from a job in this census due to a minor criminal record.

Dietrich: That has now officially been settled, so that case went on from 2010 until a few weeks ago. These cases take a long time, which is part of the challenge of them. That was a case brought under Title VII of the Civil Rights Act, race discrimination. It had to do with how the Census Bureau did background screening for the 2010 Census. Basically, if you had any blemish on your record that would put you in the FBI database, which included the non-convictions, basically, you didn't get a job in the census. And those were really important jobs at the time because it was the middle of the recession. They're paying $17 an hour. Everybody wanted one, and all these people got screened out. Again, the waiting room filled up with people, and we filed discrimination charges. Then helped co-counsel the case with a New York law firm, Outten and Golden, and recently settled it.

Von Bergen: What will be the impact? Are we close enough to census planning is happening for 2020?

Dietrich: Yes, we are, which is why the case had to settle. The cornerstone settlement is the Census Bureau has agreed to completely revamp its screening processes, not only background checking, but all of its processes, so that hopefully there will be no racial disparate impact. African Americans won't be excluded at higher numbers. They're working on that. Our clients will be given priority for hiring next time, rather than being screened out. Some of them have selected a different track. They don't want priority. They want their records to be addressed and make sure they're records are correct.

FBI records, which was what was used for that screening. are notoriously horrible. Part of the idea is to help people clear up their records with the FBI.

Von Bergen: Including expungement, where appropriate, or sealing, or what?

Dietrich: We're still trying to figure out based on the number of people who put in claims against how much money we have, how deeply we can go to fix people's record, so that's still being determined.

Von Bergen: I remember working on a story with you that involved criminal records and identity theft.

Dietrich: This actually didn't turn into a litigation, but we negotiated it like it was going to be a litigation, and we settled it before we filed the suit. The idea behind criminal identity theft was that let's say I get arrested, and I know I've got a bench warrant out on me. So, I tell them I'm you to try to get out of it. Usually, they figure it out at some point that it was you and not me, but they don't correct the record. When you get a background check done on you, my record comes up on your background check. That pretty much sucks, right?

Von Bergen: Absolutely.

Dietrich: If you're the innocent person. Often it's brothers and sisters, and sometimes even parents and children. More often it's deliberate. We negotiated a settlement with the state police about how they would fix this. For 80 percent of the people, the settlement worked great, but for reasons that were unbeknownst to me, the state police decided on their own that the settlement would not apply to 20 percent of people.

Von Bergen: A particular 20 percent?

Dietrich: Yes. There are four categories of people. The most common one, I guess is if somebody used your Social Security number as part of committing this identity theft they won't fix it for you. Another big category is if you've got your own record, they won't fix it for you, which still is not right because ...

Von Bergen: No one needs the additional problem.

Dietrich: Suppose I once got a DUI, versus a brother who is a big drug dealer. It defies logic, right, that the police wouldn't want to have accurate records. I have a client who we're trying to help right now, who is a victim of this. His brother has used his name, and sometimes continues to use his name, and his brother has gotten himself on the sex offender registry. Now, my poor client, who not only can't find a job because his brother's record follows after him, is now also on the sex offender registry. Stuff like that happens more regularly than you can imagine. Maybe after all these years I should be used to it, but I still get really mad.