BILL ANALYSIS Ó
AB 1831
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1831 (Dickinson) - As Amended: April 26, 2012
SUBJECT : Local government: hiring practices.
SUMMARY : Prohibits a city or county from inquiring into or
considering criminal history when screening an applicant for
employment, or including any inquiry about criminal history on
any initial employment application. Specifically, this bill :
1)Prohibits a city or county from inquiring into or considering
the criminal history of an applicant or including any inquiry
about criminal history on any initial employment application.
2)Authorizes a city or county to inquire into or consider an
applicant's criminal history after the applicant's
qualifications have been screened and the city or county has
determined that the applicant meets the minimum employment
requirements.
3)Excludes from the provisions of this bill any position:
a) For which a city or county is otherwise required by law
to conduct a criminal history background check; or,
b) Within a criminal justice agency, as that term is
defined in Section 13101 of the Penal Code.
4)Makes legislative findings and declarations related to the
importance of reducing employment discrimination, and further
declares the matter to be of statewide concern, such that all
cities and counties, including charter cities and counties,
would be subject to the provisions of the bill.
EXISTING LAW :
1)Requires the hiring practices and promotional practices of a
city or county, as defined, to conform to the Federal Civil
Rights Act of 1964 and prohibits any city or county from, as a
part of its hiring practices or promotional practices,
employing any educational prerequisites or testing or
evaluation methods which are not job-related unless there is
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no adverse effect.
2)Defines "criminal justice agencies" as those agencies at all
levels of government which perform as their principal
functions, activities which either:
a) Relate to the apprehension, prosecution, adjudication,
incarceration, or correction of criminal offenders; or,
b) Relate to the collection, storage, dissemination or
usage of criminal offender record information.
FISCAL EFFECT : None
COMMENTS :
1)This bill is intended to reduce employment discrimination
against individuals with past criminal records by prohibiting
cities and counties from inquiring into or considering the
criminal history of an applicant before determining whether or
not the applicant has met the stated initial employment
requirements. In doing so, AB 1831 aims to increase
employment and reduce criminal recidivism, particularly in
areas with disproportionately high numbers of individuals with
criminal records. This bill is sponsored by the American
Civil Liberties Union of California (ACLU) and the National
Employment Law Project (NELP).
2)AB 1831 would prohibit all cities and counties - including
charter cities and counties, but not special districts or
other forms of local public agencies - from inquiring into or
considering the criminal history of an applicant for
employment, or including any inquiry about criminal history on
any initial employment application. A local agency would be
permitted to inquire into and consider criminal history only
after determining that the applicant otherwise meets the
stated minimum employment requirements.
The bill exempts from its own provisions any position that is
otherwise required by law to conduct a criminal history
background check (such as law enforcement and those working
with children, the elderly and the disabled), and more
broadly, any position within a criminal justice agency (i.e.,
police and sheriffs' departments, criminal courts and crime
labs).
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3)This bill is part of a larger nationwide effort to "ban the
box" - namely, to prohibit public employers from including in
initial employment applications a 'check box' or other inquiry
requiring an applicant to disclose any prior criminal history.
According to the author, the states of Connecticut, Hawaii,
Massachusetts, Minnesota, New Mexico "and over 30 U.S. cities
and counties responded to this growing societal challenge by
removing the conviction history inquiry from initial job
applications in public employment", including Alameda and
Santa Clara Counties and the cities of San Francisco,
Berkeley, East Palo Alto, Compton, Oakland, Richmond, and San
Diego. Furthermore, "İu]nder Governor Schwarzenegger,
California became the sixth state to do so when the State
Personnel Board removed the question from job applications for
state positions effective June 25, 2010."
The author notes that "İb]ecause criminal background checks
have a disparate impact on people of color, Title VII of the
Civil Rights Act of 1964 prohibits no-hire policies against
people with criminal records. An employer's consideration of
a conviction history may pass muster under Title VII if an
individualized assessment is made taking into account whether
the conviction is job-related and the time passed since the
conviction. Removing the inquiry about conviction history
from the initial job application promotes a case-by-case
assessment of the applicant, which is more consistent with
Title VII."
4)The Drug Policy Alliance contends that employment
discrimination based on prior criminal history is rampant,
especially in minority communities: "İa] wide body of research
has demonstrated that the consequences of a criminal
conviction on opportunities for employment are particularly
severe. A major study of actual hiring practices, for
example, shows that in nearly 50% of cases, employers were
unwilling to consider equally qualified applicants on the
basis of their criminal record. Additionally, people of color
with criminal convictions face additional discrimination and
are even less likely to be considered for employment than
white applicants with criminal convictions. Another survey of
employer attitudes reflected that 40% of employers will not
even consider a job applicant for employment once they are
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aware that the individual has a criminal record."İEmphasis
removed]
According to the author, NELP "estimates that there are almost
7 million adults in California with criminal records on file
with the state. One prominent researcher has found that a
criminal record reduces the likelihood of a job callback or
offer by nearly 50 percent, an effect even more pronounced for
African American men than for white men. The stigma of a past
criminal record also discourages otherwise qualified
individuals from applying for work because of a conviction
history inquiry on the job application."
According to NELP, "İe]mployment of eligible people with a
conviction history is key to the success of realignment at the
local level, as studies have shown that stable employment
significantly lowers recidivism and promotes public safety."
Similarly, the author contends that "İr]esearch has shown that
people who are employed after release from prison are less
likely to return. One study found that only 8% of those who
were employed for a year committed another crime compared to
that state's 54% average recidivism rate. Increased
employment and increased wages are also associated with lower
crime rates."
The author further contends that this bill supports current
efforts at 'realignment' of the state's criminal justice
system to shift resources and responsibility to the local
level. "?AB 1831 strives to reduce unnecessary barriers to
employment for the estimated one in four adult Californians
with a conviction history, many of whom are struggling to find
work. Not only will this practice increase public safety, but
it will also help fuel a strong economic recovery."
5)According to the author, there is some evidence that
provisions like those in this bill have been relatively easy
to implement, and with positive results. For example, a 2012
HR Magazine interview with the human resources director for
the city of Austin, Texas states that "since the city adopted
this policy, more qualified candidates with criminal
backgrounds - candidates who previously may have opted against
completing the application due to the background questions -
have applied. 'There are extremely talented and qualified
people who happen to be ex-offenders İthe director said.]
They are just as productive as people who do not have criminal
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records.'"
The East Palo Alto Police Department has tried to combat
recidivism among parolees by operating a Day Reporting Center
that incorporated a state-funded jobs program with the
California Department of Transportation. According to Chief
of Police Ronald Davis, "İf]or many in this program they were
now able to gain employment, albeit temporarily, without being
labeled based on their arrest record?In short, over the next
three years we saw dramatic reductions in our recidivism
rates, and our crime and violence rates?During this program we
also learned first-hand just how many unnecessary barriers
exist in rehabilitation: a significant one being the need the
check a box on job applications, and the undue embarrassment
to the applicant, as well as the unconscious bias it can
generate in employers."
Beginning in March 2007, the Alameda County Human Resource
Service Department removed questions about conviction
histories from the initial job application and delayed
criminal background screening of applicants. According to the
Interim Director, the Department "has not found that removing
the question about conviction histories from the job
application?is a waste of the County resources; in fact?this
practice saves the County resources. The County's
İmodification of the initial application] was a simple process
and was not resource-intensive?The County has not had any
problems with this policy?In fact, the County has benefitted
from hiring dedicated and hardworking County employees because
of the policy change."
The City of Oakland also reports similar results with the same
policy, stating "İt]he new processes have not required
additional resources and have instead shifted the timing of
when background checks are conducted. There are no new costs
associated with the change in policy and we have not
encountered new problems since changing our practices."
6)The California State Association of Counties expresses
concerns about the bill related to the loss of local
discretion in employment hiring practices. "There are
numerous positions and classifications within county
employment for which full background checks are completed,
including sworn and non-sworn staff in the Sheriff's
department, crime lab staff, social workers and staff in the
child protective services, child support, and elder abuse
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areas, and staff working in treasurer and tax collector
functions. In some counties, all prospective employees
undergo a background check. We think it would be impractical
to amend
AB 1831 with a list of every kind of position for which it would
be most efficient to continue to collect criminal history
information at the first stage of the application process,
however we look forward to working with the author to
determine whether there is a way to achieve the goal of AB
1831 while preserving local discretion over hiring practices."
7)The California District Attorneys Association opposes the bill
on the grounds that it would only extend the inevitable: "?all
this bill will do is ensure that local agencies waste public
time and resources screening initial applications for minimum
eligibility that will almost certainly be rejected once an
applicant's criminal history is made known. Certainly, there
are positions in state and local government for which a
criminal background check is not required but into which it is
inappropriate to hire a person with specific criminal
histories?The only sure outcome is unnecessary delay and
increased costs in hiring procedures. At a time when local
governments are just as, if not more than, cash-strapped as
the state, it seems unwise to guarantee the pointless
expenditure of public time and resources toward no discernible
public benefit."
The California Police Chiefs Association opposes the bill on
similar grounds: "AB 1831 would seriously add to the yoke of
already fiscally overburdened agencies. Moreover, there are
entire classes of employees whose criminal history could cause
public harm: building inspectors, code enforcement officers,
records clerks, public utility workers all occupy positions of
public trust and the citizens of a jurisdiction are ill-served
if the persons occupying those positions have the types of
criminal records that could endanger the public."
The Solid Waste Association of North America opposes the bill on
the grounds that "İr]equiring local agencies to extend the
hiring process in situations where exclusion from employment
is absolutely certain has no effect other than to increase the
amount of time, energy, and resources expended."
8)It should be noted that the provisions of this bill do not
apply to special districts (or other local agencies aside from
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cities and counties). In 2002, California counted more than
3,400 special districts which expend more than $26 billion per
year - agencies that likely account for a substantial share of
the public employees at the local level. The author's office
has offered no rationale for the exclusion of special
districts from the provisions of this bill.
The Committee may wish to ask the author why the provisions of
this bill should be applied to public employees of cities and
counties, but not to public employees of special districts.
9)By its own terms, the provisions of this bill are a matter of
statewide concern and therefore apply to charter cities and
counties. According to NELP, "İt]he proposed legislation is
applicable to charter local agencies because it does not
impinge on charter entities' power to provide for the
qualifications of its employees. The California Supreme Court
has clearly stated in a line of cases that a statewide
regulation imposing only procedural requirements applies to
charter entities."
10)Arguments in support : Supports argue that this bill
represents an important step toward reducing recidivism and
promoting local employment in struggling communities, while
allowing individuals with a conviction history to compete
fairly for employment without compromising the safety and
security of the public.
Arguments in opposition : Opponents contend that requiring local
agencies to extend the hiring process in situations where
exclusion from employment are ultimately likely will
needlessly increase the amount of time, energy, and resources
expended, while opening the door for individuals with criminal
histories to inappropriately take positions of public trust.
REGISTERED SUPPORT / OPPOSITION :
Support
National Employment Law Project İCO-SPONSOR]
American Civil Liberties Union of California İCO-SPONSOR]
Legal Services for Prisoners with Children İCO-SPONSOR]
San Francisco Public Defender Jeff Adachi
Councilmember Dee Andrews, 6th District, City of Long Beach
Councilmember Steven Neal, 9th District, City of Long Beach
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Councilmember Nancy Nadel, City of Oakland
Councilmember Jovanka Beckles, City of Richmond
Councilmember Ash Kalra, City of San Jose
Counties of Alameda and Santa Clara
Cities of Oakland and Richmond
A New Way of Life Reentry Project (ANWOL)
Acacia Adult Day Services
Advocacy, Re-entry, Resources, Outreach (A.R.R.O.)
All of Us or None
All of Us or None, Riverside Chapter
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Asian Communities for Reproductive Justice
Support (continued)
Berkeley Organizing Congregations for Action
California Attorneys for Criminal Justice
California Conference Board of the Amalgamated Transit Union
California Drug Counseling, Inc.
California Employment Lawyers Association
California Labor Federation AFL-CIO
California Prison Moratorium Project
California Public Defenders Association
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Californians United for a Responsible Budget
Center for Living and Learning
Center for Training and Careers
Chief Adult Probation Officer Wendy Still, City and County of
San Francisco
Chief of Police Chris Magnus, City of Richmond
Chief of Police Ronald Davis, City of East Palo Alto
Community Works
Congregations Organizing for Renewal
Contra Costa Interfaith Supporting Community Organization
Critical Resistance
Crossroad Bible Institute
District Attorney George Gascon, City and County of San
Francisco
Drug Policy Alliance
East Bay Community Law Center
Ella Baker Center for Human Rights
Engineers and Scientists of California
Equal Justice Society
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Equal Rights Advocates
Fair Chance Coalition to Ban the Box Campaign
Families to Amend California's Three Strikes
Fresh Start Ministries and Community Services, Inc.
Friends Committee on Legislation of California
FYI Trilogy
Gamble Institute
Homeless Outreach Program Integrated Care System
Inner City Law Center
International Longshore & Warehouse Union
Justice Now
LA Voice
Laane
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Aid Society - Employment Law Center
Los Angeles Alliance for New Economy
Los Angeles Black Worker Center
Los Angeles County Federation of Labor, AFL-CIO
National Association for the Advancement of Colored People,
California State Conference
National Association of Social Workers - California Chapter,
Women's Council
Support (continued)
National Center for Youth Law
National Council of La Raza, California Affiliate Network
National H.I.R.E. Network (Helping Individuals with criminal
records Reenter through Employment)
New Start L.A. Reentry Program
Oakland Community Organizations
Pacific Institute
PICO California
PolicyLink
Professional & Technical Engineers, Local 21
Richmond Progressive Alliance
Rubicon Programs
Sacramento Area Congregations Together
Safe Return Project
Sanmina-SCI Corporation
SEIU Local 1000
Sentencing Project, The
South Bay Veterans Employment Committee
Stanford Community Law Clinic
Starting Over, Inc.
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The Ripple Effects
Time for Change Foundation
UNITE HERE
UNITE HERE Local 2
United Food and Commercial Workers Union, Western States Council
Watsonville Law Center
Western Center on Law & Poverty
Youth Uprising
Individual letters (33)
Concerns
California State Association of Counties (3/29)
Opposition
Association of California Cities - Orange County (4/18)
California District Attorneys Association (4/26)
California Police Chiefs Association (4/2)
California State Sheriffs' Association (4/3)
City of Salinas (4/17)
City of Visalia (4/9)
Regional Council of Rural Counties (3/28)
Solid Waste Association of North America (3/15)
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958