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