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When Precious Daniels lay down in front of the Blue Cross Blue Shield building in Detroit on a chilly morning in November 2009, she wasn’t giving her future job prospects much thought.
She was, however, thinking about all of the money the insurance company was spending on its lobbyists. A supporter of the Affordable Care Act, Daniels wanted to make sure that the insurance company knew that she wasn’t OK with its efforts to block Obama’s healthcare law.
“It was a peaceful protest. Me and another young man did a peaceful non-violent act of blocking the doors by lying down and demanding to speak with someone higher up to present our case,” she says.
The police were called, and Daniels was arrested for public trespassing and disturbing public peace. Less than six hours later, she was released on $50 bail. Months later, in January 2010, she showed up for her hearing, only to find out that the cop who made the arrest wasn’t there.
“I was pretty much under the assumption that since the cop didn’t show up that the charge was dropped,” she says.
She was wrong. The arrest, which was reported to the FBI’s master criminal database, popped up weeks later when Daniels applied for a job with the US Census Bureau. She did not get the job.
Daniels isn’t the only one haunted by her activism. According to the Wall Street Journal, nearly one in three adults has a file in the FBI’s criminal database – 77.7m Americans in total. And the number is growing, with 10,000 to 12,000 new names added each day. As Americans take to streets to strike for a range of causes – from climate change to better wages – they take the the risk of having their name added to that database of doom.
Protesting for a cause – and having an arrest on record – can have a long-term effect. Once it’s marked on someone’s legal record, it’s a red flag for employers.
“The repercussion are serious, especially when you consider low-wage workers,” says Ossai Miazad, a partner at law firm Outten & Golden. “I was thinking about this when Occupy Wall Street was going on a few years ago. Look at Ferguson. Look at all of the arrests that have happened. All of these individuals who might have a record that they might not even realize that in six months, or several years down the road, will follow them and could cause them to lose a job.”
In court, Americans are innocent until proven guilty. When it comes to job search, it’s the other way round – guilty until proven innocent.
‘I am willing to do whatever it takes to make a better life’
Even after the Census Bureau rejected Daniels’ job application because of her arrest, Daniels says she would make her protest again. “In my eyes, this was worth it,” she says. “I truly believe that we were heard.”
Since then, Daniels has joined a class-action lawsuit against the Census Bureau, claiming that its policy of not hiring people with arrest record counts as discrimination against minorities.
Civil disobedience – non-violent acts of protests like blocking traffic – have a long history within US civil rights and labor movements, says Tsedeye Gebreselassie, a senior staff attorney at National Employment Law Project.
One of the reasons that there was so much attention [for the fast-food minimum-wage strikes on 4 September] is because we saw hundreds of workers across the country willing to get arrested. It’s risking arrests. It’s risking losing your job. It’s risking losing future job prospects, but there comes a point where you don’t have anything to lose any more. Even if arrests were to have an effect on their future job prospects, it says lot that they are willing to take the step anyway.
“I’d call it courageous,” Gebreselassie says.
To Devonte Yates, a 22-year-old McDonald’s worker, getting arrested was also a sacrifice he says needed to be made.
Yates was one of the 27 protesters arrested in Milwaukee, Wisconsin, on 4 September – the day of nationwide protests for higher minimum wage. After blocking street near a local McDonald’s, he was arrested and issued a $691 ticket, which he plans on paying.
“I am willing to do whatever it takes to make a better life, not only for me, but for the people that are going to come in generations after me. I am a McDonald’s worker and I am fighting to make my job better,” he says.
“If it stops me from getting another job, that’s fine. This is real life. If I have to sacrifice bits and pieces of my life to see this goal of $15 wage increase, then that’s fine with me.”
Employees like Yates who walk out of their jobs can be disciplined by their employers – but legally, future employers shouldn’t use arrests against them.
“A subsequent employer can’t retaliate against somebody by not hiring them for it,” says Jonathan A Segal, partner at Duane Morris LLP. “It’s protected.”
The current employers do, however, have the right to hire replacements for striking workers.
Consider the Market Basket strikes earlier this summer: As workers spent weeks picketing the supermarket chain in support of the ousted CEO, the company attempted to hold a job fair to replace them.
While employees are free to engage in nonviolent protests, they do not have the right to try shut the employer down or damage its business, Segal says.
“They have the right to leave, but they don’t have the right to block customers or to stop other employees from earning their paycheck,” says Segal, adding that such behavior can lead to arrests and is not protected as concerted action.
Still, in many states, employers are prevented from looking at arrest records when making hiring decisions.
“Arrests alone cannot be considered,” says Segal.
‘$13 when you are unemployed is very hard to come by’
Overall, participating in protests usually count as a summary offence, which is less than a misdemeanor. Since summary offences are the least serious – things like running a red light or speeding – any employer who uses one as a reason not to hire someone will have a hard time defending the decision in court.
Despite that, Daniels and about 850,000 applicants received letters from the US Census Bureau that flagged their arrests records when processing their job applications. After finding out online that she wasn’t the only one to whom this happened, Daniels joined the class action suit against the bureau, which has been pending since 2010.
“Her situation is illustrative of what many people go through,” says Miazad, who is the lead partner on the case against the US Census Bureau. “Arrests records are notoriously incomplete.”
To resolve the flag on her application, the Bureau asked Daniels to send in fingerprints and supporting documents within 30 days. Despite her case being dismissed and no charges being pressed by either Blue Cross Blue Shield or the Wayne County police department which detained Daniels in November 2009, her arrests still appears on her record.
The supporting documents she needed also came at a price.
“When I tried to [get the paperwork] – I was unemployed at the time - and they wanted $13,” she says. “You know, $13 when you are unemployed is very hard to come by.” Since then, Daniels, who is 39, has worked a number of private sector jobs and is currently working in IT. She has yet to resolve the flag on her FBI file.
“In Precious Daniels’ case, which happens over and over and over again - there is no disposition. It was dismissed,” says Miazad.
Arrest disposition is the final outcome of an arrest - whether it be dismissal, acquittal or conviction. “But what appears on an FBI rap sheet, which they used as a basis for employment decision, is what then looks like an open arrest.”
Unfortunately, the burden of proof that the arrest was dismissed falls on those who are looking for a job.
The protesters participating in the minimum wage strikes on 4 September were willing to do “whatever it takes” to get their message across.
“They were aware of the various consequences that come along with being arrested,” says Jennifer Epps-Addison, a campaign leader for Wisconsin Jobs Now. “They got arrested not just for themselves but for their co-workers who maybe couldn’t afford to have taken that big of a risk. It wasn’t a decision that they entered into lightly or blindly.”
The protesters were more than prepared for the arrests, with campaign having strike funds ready to pay for any legal expenses incurred by those who were detained.
“I was well aware of what I was doing. I was well aware of the legal consequences of my actions,” says Yates, who is currently studying criminal justice at the Milwaukee Area Technical College. And what about his arrest coming up in future job interviews? “I am not really worried about that.”
