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 








                                                                  AB 1831
                                                                  Page  2

            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). 








                                                                  AB 1831
                                                                  Page  3

           
           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 








                                                                  AB 1831
                                                                  Page  4

            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 








                                                                  AB 1831
                                                                  Page  5

            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 








                                                                  AB 1831
                                                                  Page  6

            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 








                                                                  AB 1831
                                                                 Page  7

            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








                                                                  AB 1831
                                                                  Page  8

          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








                                                                  AB 1831
                                                                  Page  9

          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.








                                                                  AB 1831
                                                                  Page  10

          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