BILL ANALYSIS �
AB 218
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 218 (Dickinson) - As Introduced: February 4, 2013
As Proposed to be Amended
SUBJECT : PUBLIC EMPLOYMENT: CRIMINAL CONVICTION HISTORY
KEY ISSUES :
1)SHOULD STATE AND LOCAL AGENCIES GENERALLY BE REQUIRED TO
POSTPONE ASKING ABOUT AN APPLICANT'S PRIOR CRIMINAL
CONVICTIONS UNTIL AFTER THEY HAVE DETERMINED THAT THE
APPLICANT MEETS THE MINIMUM QUALIFICATIONS FOR THE JOB IN
ORDER TO AVOID INAPPROPRIATELY EXCLUDING QUALIFIED JOB
SEEKERS?
2)SHOULD LAW ENFORCEMENT AGENCIES BE EXEMPTED FROM THIS RULE,
ALONG WITH ALL POSITIONS WITH ANY EMPLOYER FOR WHICH CRIMINAL
BACKGROUND CHECKS ARE REQUIRED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill concerns when - not whether - state and local
governments may obtain criminal conviction information from
applicants for employment. Under the bill, this information may
be sought and considered after the agency has determined that
the applicant meets the minimum qualifications for the job. The
bill exempts all criminal justice agencies, as well as all
positions with any agency for which a criminal background
investigation is required. Supporters note that the recently
enacted "realignment" of California's criminal justice system
under AB 109 seeks to produce budgetary savings by reducing
recidivism and promoting rehabilitation, and that employment of
eligible people with a conviction history is key to the success
of realignment because stable employment significantly lowers
recidivism. Supporters argue that the stigma of a past criminal
record discourages otherwise qualified individuals from applying
for work when job applications inquire about conviction history.
They note that six states and over 40 U.S. cities and counties
have removed the conviction history inquiry from initial job
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applications in public employment, and that the State Personnel
Board under Governor Schwarzenegger similarly removed the
question from job applications for state positions.
Opponents argue that because the bill does not affect whether
criminal convictions can be considered, the bill simply requires
agencies to 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,
which they argue will cause unnecessary delays and increased
costs in hiring procedures without a discernible public benefit.
Other opponents argue that each agency should be able to decide
for itself which positions are exempted.
SUMMARY : Provides that state and local agencies must determine
a job applicant's minimum qualifications before obtaining and
considering information regarding the applicant's criminal
conviction history. Specifically, this bill :
1)Provides that a state or local agency shall not ask an
applicant for employment to disclose, orally or in writing,
information concerning the conviction history of the
applicant, including any inquiry about conviction history on
any employment application until the agency has determined the
applicant meets the minimum employment qualifications, as
stated in any notice issued for the position.
2)Exempts from this provision all positions for which a state or
local agency is otherwise required by law to conduct a
conviction history background check, any position within a
criminal justice agency, as that term is defined in Section
13101 of the Penal Code, and any individual working on a
temporary or permanent basis for a criminal justice agency on
a contract basis or on loan from another governmental entity.
3)Specifies that this section shall not be construed to prevent
a state or local agency from conducting a conviction history
background check after complying with the provisions above.
EXISTING LAW :
1)Prohibits any employer from inquiring into or requiring
disclosure of arrests or detentions of applicants that did not
result in conviction. (Labor Code Section 432.7.)
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2)Provides pursuant to federal anti-discrimination law that a
facially neutral hiring policy excluding all applicants with
conviction records will disproportionately impact persons of
color, and, therefore, may violate Title VII of the Civil
Rights Act of 1964. Such a policy will pass muster if it is
job-related and consistent with business necessity. (See EEOC
Enforcement Guidance, "Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the Civil
Rights Act of 1964" (2012)(available at
http://eeoc.gov/laws/guidance/arrest_conviction.cfm).)
3)State law likewise prohibits race discrimination in employment
and provides that a violation may be found where an employment
policy or practice has a disproportionate impact on a racial
group unless the policy or practice is job related and
consistent with business necessity. (See Government Code
section 12926 et seq.)
COMMENTS : According to the author, "AB 218 will help to level
the playing field for qualified Californians seeking employment
and will promote public safety by reducing unnecessary job
barriers for the nearly seven million adult Californians with a
criminal record. Thousands of qualified job applicants in our
state are plagued by old or minor records and discouraged from
applying to employment because a 'box' on job applications
requires criminal history information that leads many employers
to unfairly reject job applications. AB 218 removes unnecessary
obstacles to employment for skilled, qualified workers who have
turned their lives around. All of California will benefit when
people with criminal records are no longer shut out of jobs and
can financially support their families and contribute to a
strong economic recovery."
This Bill Seeks To Promote Rehabilitation and Reduce Recidivism
Consistent With The Goals Of Realignment. The author explains
the reason for the bill as follows:
"Realignment" (AB 109) of California's criminal justice
system seeks to produce budgetary savings by reducing
recidivism and promoting rehabilitation. Employment 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.
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Research 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
in states. Based on U.S. Bureau of Justice Statistics and
the U.S. Census, the National Employment Law Project
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 (see answer to question 10
under "People of color are disproportionately impacted by
criminal record screening in employment"). 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.
No healthy economy can sustain a large and growing
population of unemployed workers, especially in those
communities already hard hit by joblessness. Indeed, the
impact on the economy is staggering. The cost of
corrections at each level of government in the United
States consumed $74 billion a year in 2007, and the reduced
output of goods and services of people with felonies and
prison records is estimated at between $57 and $65 billion
in losses nationally. When hard-working Californians are
able to support themselves and their families, our
communities will reap the economic benefits.
Six states and over 40 U.S. cities and counties responded
to this growing societal challenge by removing the
conviction history inquiry from initial job applications in
public employment. Under Governor Schwarzenegger,
California State Personnel Board removed the question from
job applications for state positions effective June 25,
2010 (they then added a criminal history supplemental
questionnaire for exempted positions).
Mayor Bloomberg adopted this policy in New York City.
Currently, the following California cities and counties do
not inquire into an applicant's criminal history on the
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initial application: Alameda County, Berkeley, City of East
Palo Alto, Compton, Oakland, Richmond, Santa Clara County,
City of San Diego, and San Francisco City and County.
AB 218 removes any inquiry into a conviction history on an
initial job application and delays any background check
until the employer has determined that the applicant's
qualifications meet the job requirements. The provision
does not apply to positions for which the agency is
required by law to conduct a criminal background check,
such as positions working with children, the elderly or
disabled, and other sensitive positions, and any positions
within criminal justice agencies. The bill will not alter
or impact any job qualifications or the agency's legal
discretion to hire the most qualified applicant for the job
position. The agency will also retain its discretion, in
compliance with existing law, to determine whether a job
position requires a criminal background check.
In summary, consistent with "realignment" of the state's
criminal justice system, AB 218 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.
In 2011, U.S. Attorney General Eric Holder wrote to every
state Attorney General, with a copy to every Governor,
asking them to assess their state's collateral consequences
and determine if any should be eliminated "so that people
who have paid their debt to society are able to live and
work productively." Following the direction of the Attorney
General Holder, California can take an important step
toward becoming a model employer, leading the way for the
private sector to allow people with a conviction history to
compete fairly for employment without compromising safety
and security on the job.
This Bill Seeks To Affect Only When - Not Whether - Employers
May Consider Criminal Conviction History. This bill does not
prohibit or otherwise limit a state or local agency from
conducting a criminal background check or making employment
decisions on the basis of an applicant's prior convictions. It
simply restricts when that inquiry may be conducted. Under the
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bill, a covered employer may ask an applicant for employment to
disclose information concerning his or her conviction history,
and may conduct a criminal background investigation, so long as
they do so after they have determined the applicant meets the
minimum employment qualifications.
Employers should of course continue to approach these decisions
with care to avoid violating employment discrimination laws,
which require that job requirements be justified when they fall
more heavily on some groups. The bill does not affect existing
law requiring that employment standards be related to the job.
Supporters note that people of color are more likely than whites
to possess a criminal record and are especially hard hit by
criminal record screening in employment. Supporters cite two
prominent studies which found that a criminal record reduces the
likelihood of a job callback or offer by about 50 percent (28
percent vs. 15 percent). This criminal record "penalty" was
substantially greater for African Americans and Latinos in the
test pool. (Devah Pager, "The Mark of a Criminal Record,"
American Journal of Sociology 108.5 (2003) at 957-60(available
at http://www.princeton.edu/~pager/pager_ajs.pdf); Devah Pager,
Bruce Western, & Bart Bonikowski,"Discrimination in a Low Wage
Labor Market: A Field Experiment," American Sociological Review
74 (October, 2009)at 777-779 ( available at
http://www.princeton.edu/~pager/ASR_pager_etal09.pdf).)
The U.S. Equal Employment Opportunity Commission (EEOC) has
recognized in policy guidance issued in April 2012 that there
are observable racial disparities in the criminal justice
system. Because criminal background checks may have a disparate
impact on people of color, federal employment discrimination law
prohibits no-hire policies against people with criminal records.
An employer's consideration of a conviction history may pass
muster if an individualized assessment is made, taking into
account whether the conviction is job-related and the time
passed since the conviction. An employer therefore risks
violating federal civil rights laws when it cannot articulate an
objective and well-supported reason why the use of a criminal
record to disqualify an applicant is related to the functions of
the job. Thus, 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 the
law. In keeping with the policy embodied by AB 218, the EEOC
guidance states: "As a best practice, and consistent with
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applicable laws, the Commission recommends that employers not
ask about convictions on job applications and that, if and when
they make such inquiries, the inquiries be limited to
convictions for which exclusion would be job related for the
position in question and consistent with business necessity."
Exemption For All Criminal Justice Agencies and Any Positions
Where Background Check Required. Moreover, the bill contains a
broad exemption for any position for which a state or local
agency is otherwise required by law to conduct a conviction
history background check, as well as any position within a
criminal justice agency or to any individual working on a
temporary or permanent basis for a criminal justice agency on a
contract basis or on loan from another governmental entity.
This bill uses the existing definition of "criminal justice
agencies," those agencies at all levels of government that
perform as their principal functions, activities which either
relate to the apprehension, prosecution, adjudication,
incarceration, or correction of criminal offenders or relate to
the collection, storage, dissemination or usage of criminal
offender record information. (Penal Code Section 13101.)
Other opponents recognize that the bill provides exemptions, but
argue that these are too limiting.
No Express Private Right of Action And No Apparent
Administrative Enforcement Mechanism . This bill does not
contain a private right of action, nor does it provide for
administrative enforcement through the Division of Labor
Standards Enforcement.
There Is A Substantial Population Of People With Criminal
Records In The United States And In California Who May Be
Affected By This Bill. According to the bill's co-sponsor, the
National Employment Law Project (NELP), an estimated 1 in 4 U.S.
adults has a criminal record that would appear on a routine
background check. (See "65 Million Need Not Apply: The Case for
Reforming Criminal Background Checks," at footnote 2( available
at
http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pd
f?nocdn=1).) Using the same methodology outlined in this
report, NELP estimates there are approximately 7 million
Californian adults with criminal records. According to
supporters, research has demonstrated that employment is a key
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factor in reducing recidivism and ensuring positive public
safety outcomes. Among other examples, supporters cite a recent
study of former prisoners in Ohio, Texas, and Illinois where
researchers found that inmates who held a job while in prison
and those who participated in job-training programs while
incarcerated had better employment outcomes after release. In
addition, inmates who were employed and earning higher wages
after release were less likely to return to prison the first
year out. (Christy Visher, Sara Debus & Jennifer Yahner,
Employment after Prison: A Longitudinal Study of Releasees in
Three States, Justice Policy Center Research Brief (Oct.
2008)(available at
http://www.urban.org/UploadedPDF/411778_employment_after_prison.p
df).) Supporters argue that the economy is negatively impacted
by the inability of people with criminal records to find gainful
employment, supporting themselves and their families.
Similar Laws In California Local Governments And Other States.
The author states that human resources departments in various
cities and counties have comparable policies and have found them
beneficial. The author particularly notes that among these are
the East Palo Alto Police Department, Alameda County, the City
of Oakland and the City of Richmond.
The author reports that there are existing laws in other states
that remove the conviction history inquiry from the initial job
application and delay the conviction history inquiry until later
in the hiring process. According to the author, each of these
laws goes much further than AB 218. Among the states with
similar laws are Colorado, Connecticut, Hawaii, Massachusetts,
Minnesota, and New Mexico.
ARGUMENTS IN OPPOSITION : The California District Attorneys
Association states:
We understand that this bill allows a local agency to
consider an applicant's criminal history after the
applicant's qualifications have been screened and the
agency has determined the applicant meets the minimum
employment requirements. Unfortunately, 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,
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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. Additionally, there may be employees who work
in a criminal justice agency who are not employed by the
agency itself. Such employees would not be excluded by the
bill's provisions.
We understand your desire to increase employment
opportunities for persons with criminal convictions, but it
seems unlikely that this bill will accomplish that
objective. The only sure outcome is unnecessary delays 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 Special Districts Association states in relevant
part:
AB 218 provides exemptions to delayed criminal history
screening of potential hires for two types of positions:
those who are required to have a criminal background check
pursuant to state law and those with criminal justice
related duties. However, we find this far too limiting.
Special districts have employees that handle sensitive
personnel information, access financial records and public
funds, or enter ratepayers' property as part of their job
duties. Hiring an individual with a relevant criminal
history could compromise public trust. Furthermore, it
simply doesn't make sense to delay criminal record
verification when a prior conviction, based on local hiring
protocols, would make a candidate ineligible. Therefore, we
propose allowing local government agencies to adopt formal
policies that would allow criminal record information
requests at the initial phase of employment for positions
specified by the agency.
Author's Proposed Technical Amendments. In order to better
clarify the intent of the measure, the author proposes the
following technical amendments:
(a) A state or local agency shall not ask an applicant for
employment to disclose, orally or in writing, through any
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written form or verbally, information concerning the criminal
conviction history of the applicant , including or include any
inquiry about conviction history on any initial employment
application . , A state or local agency may inquire into or
consider an applicant's criminal history after until the
applicant's qualifications have been screened and the agency has
determined the applicant meets the minimum employment
requirements qualifications , as stated in any notice issued for
the position.
(b) This section shall not apply to a position for which a state
or local agency is otherwise required by law to conduct a
criminal conviction history background check, to any position
within a criminal justice agency, as that term is defined in
Section 13101 of the Penal Code, or to any individual working on
a temporary or permanent basis for a criminal justice agency on
a contract basis or on loan from another governmental entity.
(c) This section shall not be construed to prevent a state or
local agency from conducting a criminal conviction history
background check after complying with all of the provisions of
subdivision (a).
Prior and Pending Related Legislation. A related measure, AB
870 (Jones-Sawyer), would enact a similar policy for state
contractors. That bill has been referred to the Committee. A
prior measure by the author last year, AB 1831, was held in the
Senate Governance and Finance Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
National Employment Law Project (co-sponsor)
Legal Services for Prisoners With Children (co-sponsor)
PICO California (co-sponsor)
All of Us or None, Los Angeles/Long Beach (co-sponsor)
AFSCME (co-sponsor)
ACLU of California
All of Us or None -Sacramento Chapter
Amalgamated Transit Union, California
A New Way of Life Reentry Project
Bayview Baptist Church
City of Berkeley
California Attorneys for Criminal Justice
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California Conf. of Machinists
California Communities United Institute
California Coalition for Women Prisoners
California Drug Counseling, Inc.
California Employment Lawyers Association
California Labor Federation
California Partnership
California Prison Focus
California Public Defenders Association
California Teamsters Public Affairs Council
Californians United for a Responsible Budget
Californians for Safety and Justice
Chrysalis
City of Carson Mayor, Jim Dear
Contra Costa Interfaith Supporting Community Organization
Coalition on Homelessness
Crossroad Bible Institute
Drug Policy Alliance
East Bay Community Law Center
East Bay Alliance for a Sustainable Economy
Engineers and Scientists of CA
Equal Justice Society
Equal Rights Advocates
Friends Committee on Legislation of California
Homies Unidos
Justice First, LLP
Justice Not Jails
Justice Now
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Aid Society-Employment Law Center
Los Angeles Alliance for a New Economy
Los Angeles Regional Reentry Partnership
LA Voice
Mexican American Legal Defense and Educational Fund (MALDEF)
Much More Bounce Inc./Ministries
National Association of Social Workers - Women's Council of the
California Chapter
National Council of La Raza
National H.I.R.E. Network
NMT/The Ripple Effects
Oakland Rising
Pacific Institute
Prof. and Tech. Engineers, Local 21
City of Richmond
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Richmond Chief of Police, Chris Magnus
Saffron Strand, Inc.
Sanmina Corporation
San Francisco Public Defender Jeff Adachi
SEIU Local 1000
Sentencing Project
Starting Over Inc.
San Francisco District Attorney George Gasc�n
The Training Center
Utility Workers Union of America, Local 132
United Food and Commercial Workers Union, Western States
UNITE HERE
Western Center on Law & Poverty
Wendy Still, San Francisco Chief Adult Probation Officer
Women's Foundation of California
Youth Justice Coalition
Opposition
Association of California Cities - Orange County
California District Attorneys Association
California Special Districts Association
Desert Water Agency
Rural County Representatives of California
Southwest California Legislative Council
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334