BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 26, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 218
Author: Dickinson
As Introduced/Amended: May 24, 2013
SUBJECT
Employment applications: criminal history
KEY ISSUE
Should the Legislature prohibit a state or local agency from
asking an applicant for employment to disclose information
concerning a criminal conviction until the agency has determined
that he/she meets the minimum employment qualifications for the
job?
ANALYSIS
Existing law prohibits both public and private employers from
asking an applicant for employment to disclose, either in
writing or verbally, any information concerning an arrest or
detention that did not result in a conviction. (Labor Code
�432.7) Among other things, this prohibition in existing law
specifies that:
1) As used for this purpose, a conviction includes a plea,
verdict, or finding of guilt regardless of whether a
sentence is imposed by the court.
2) Nothing prohibits a government agency employing a peace
officer, or a health facility hiring for a position with
access to patients and/or drugs and medications, from
asking for arrest information, as specified.
3) A violation of this prohibition by a prospective
employer allows the applicant to bring an action to recover
from that person damages, as specified. Intentional
violations are considered a misdemeanor punishable by a
fine not to exceed five hundred dollars ($500). [Labor
Code �432.7(c)]
Existing law, with regards to legal employment practices, also
provides the following:
Protects employees, both prospective and current,
against employment discrimination when it involves unfair
treatment because of a person's race, color, religion, sex,
national origin, age, disability or genetic information.
(Government Code �12940)
Prohibits employers from discriminating, discharging or
refusing to hire an employee based on an employee's lawful
conduct during nonworking hours away from the employer's
premises. (Labor Code �96 & 98.6)
Prohibits an employer from requiring or requesting an
employee or applicant for employment to disclose a username
or password for the purpose of accessing personal social
media content, as specified. (Labor Code �980)
Restricts the use, with some exceptions, of credit
information for employment purposes. (Labor Code �1024.5)
Prohibits employers from requiring applicants to submit
to polygraph, lie detector, or similar tests as a condition
of employment. (Labor Code �432.2)
This Bill would require that state and local agencies determine
a job applicant's minimum qualifications before obtaining and
considering information regarding the applicant's conviction
history on an employment application.
Specifically, this bill would:
1) Commencing July 1, 2014, prohibit a state or local
agency from asking an applicant for employment to disclose,
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orally or in writing, information concerning the conviction
history of the applicant until the agency has determined
that he/she meets the minimum employment qualifications, as
stated in any notice issued for the position.
2) Exempt from this prohibition, a position 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 specified, 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) Specify 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.
4) Establish several findings and declarations in support
of this policy.
COMMENTS
1. Criminal Background Checks:
The U.S. Equal Employment Opportunity Commission (EEOC) is
responsible for enforcing federal laws that make it illegal to
discriminate against a job applicant or an employee because of
the person's race, color, religion, sex (including pregnancy),
national origin, age (40 or older), disability or genetic
information. In April 2012, the EEOC issued its "Enforcement
Guidance on the Consideration of Arrest and Conviction Records
in Employment Decisions," with the purpose of consolidating
and updating EEOC's guidance documents regarding the use of
arrest or conviction records in employment decisions. An
employer's use of an individual's criminal history in making
employment decisions may, in some instances, violate the
prohibition against employment discrimination. According to
the EEOC, national data supports a finding that criminal
record exclusions have a disparate impact based on race and
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national origin.
The EEOC's guidance makes a clear distinction between arrest
and conviction records. According to the EEOC, the fact of an
arrest does not establish that criminal conduct has occurred,
and an exclusion based on an arrest, in itself, is not job
related and consistent with business necessity. In contrast,
a conviction record will usually serve as sufficient evidence
that a person engaged in particular conduct. However, 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 may risk violating
federal law if he/she cannot articulate an objective and
well-supported reason for why the use of a criminal record to
disqualify an applicant is related to the functions of the
job.
According to EEOC, "As a best practice, and consistent with
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."
(EEOC Enforcement Guidance, V.B.3. Convictions)
2. Need for this bill?
Existing law prohibits both public and private employers from
asking an applicant for employment to disclose, either in
writing or verbally, any information concerning an arrest or
detention that did not result in a conviction. However, even
with this protection in place, it appears that many applicants
continue to face discrimination when applying for a job. The
use of criminal background checks as a tool for making hiring
decisions has grown dramatically in recent years. According
to a survey conducted by the Society for Human Resources
Management, the largest association devoted to human resource
management, 92 percent of their members reported performing
criminal background checks on some or all of their job
candidates. Of these organizations, 12 percent reported never
allowing job candidates the opportunity to explain the results
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of their criminal background check. [Background Checking:
Conducting Criminal Background Checks (Jan. 22, 2010)]
The author of the bill also cites a March 2011 report by the
National Employment Law Project (NELP), titled "65 Million
Need Not Apply: The Case for Reforming Criminal Background
Checks for Employment," which found that an estimated 65
million U.S. adults who have criminal records often confront
barriers that prevent even the most qualified from securing
employment. According to the report, across the nation there
is a consistent theme: people with criminal records "need not
apply" for available jobs. Employers that adopt these and
other blanket exclusions fail to take into account critical
information, including the nature of an offense, the age of
the offense, or even its relationship to the job.
This bill would prohibit a state or local agency from asking
an applicant for employment to disclose information concerning
a criminal conviction until the agency has determined that
he/she meets the minimum employment qualifications for the job
in order to avoid inappropriately excluding qualified job
seekers. The bill seeks to affect only when, not whether,
employers may consider criminal conviction history for
employment purposes.
3. Similar Efforts in Other States and at the Local Level in CA :
According the National Employment Law Project, the policy of
AB 218 is one that has been tried and tested as this bill
follows the lead of six states and over 40 U.S. cities and
counties that have removed the conviction history inquiry from
initial job applications in public employment and instead
delayed it until the later stages of hiring. The author
particularly notes that among these are the cities of East
Palo Alto, Berkeley, Alameda County, San Francisco City and
County, City of Oakland and the City of Richmond. Among the
states with similar laws are Colorado, Connecticut, Hawaii,
Massachusetts, Minnesota, and New Mexico.
4. Proponent Arguments :
According to the author, an estimated one in four adult
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Californians has an arrest or conviction record on file with
the state, creating major, unnecessary employment barriers.
Because criminal background checks disproportionately deny
employment to large numbers of people of color, the U.S. Equal
Employment Opportunity Commission (EEOC) requires employers to
establish a strong nexus between an individual's conviction
history and the specific responsibilities of the job.
Unfortunately, proponents argue, old or minor records, such as
nonviolent drug offenses, are impeding qualified job
applicants' ability to find employment. They argue that the
mere existence of a "box" on a job application that asks if
the applicant has a criminal history, leads employers to
dismiss applicants at the outset even where an individual
possesses the skills, work ethic, and qualifications to do the
job.
Further, they argue that the discrimination experienced by
individuals with old criminal convictions is well documented,
and a wide body of research demonstrates that the consequences
of a criminal conviction on opportunities for employment are
particularly severe. For example, they cite a study of hiring
practices which shows that in nearly 50% of cases, employers
were unwilling to consider equally qualified applicants on the
basis of their criminal record. They argue that people of
color are especially hit by criminal background checks, and
are even less likely to be considered for employment than
white applicants with criminal convictions.
According to the author, realignment of California's criminal
justice system seeks to produce budgetary savings by reducing
recidivism and promoting rehabilitation. However, the author
believes, 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.
This bill would remove any inquiry into a conviction history
on a job application and delay any background check until the
employer has determined that the applicant's qualifications
meet the job requirements. The author believes this bill
would make government hiring practices more consistent with
realignment and with the EEOC's guidelines.
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5. Opponent Arguments :
According to opponents of the measure, since the Governor's
prison realignment bill, many lower level offenders are being
released into the public and entering the job market and
although many are not opposed to hiring low level offenders,
what they do believe is that these decisions should be left to
local jurisdictions and not subverted by state-led
requirements. This bill prohibits local governments from
inquiring about criminal history on initial employment
applications. Opponents argue that many local agencies will
be wasting time and limited resources screening initial
applicants for minimum eligibility that most certainly will be
rejected once an applicant's criminal history is disclosed.
Opponents understand that the primary goal of the bill is to
create more job opportunities for individuals with criminal
convictions; however, they believe the bill does not ensure
that it will accomplish that objective. Instead, they argue,
this bill would create unnecessary delays and increased costs
in hiring procedures. They also note that some counties have
already initiated similar efforts, but argue that these
policies have been tailored to best serve their needs and were
done without a legislative mandate. Overall, opponents
believe this bill would take away local discretion over hiring
practices that should be dealt with at the local level.
The CA Special Districts Association appreciates the recent
amendments taken to delay implementation, however, they would
like to see additional amendments that, 1) authorize agencies
to adopt policies that permit criminal conviction information
requests for relevant prior convictions earlier in the hiring
process for certain positions, as specified by agency
protocol; and 2) provide an exemption for small local
agencies.
6. Double Referral :
This bill has been double referred and, if approved by this
committee, it will be sent to the Senate Judiciary Committee
for a hearing.
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7. Prior Legislation :
AB 870 (Jones-Sawyer) of 2013: Held in Assembly
Appropriations
AB 870 would prohibit the state from contracting with a person
or entity that asks an applicant for employment to disclose,
orally or in writing, information concerning the conviction
history of the applicant, including an inquiry about
conviction history on an employment application, until the
employer has determined that the applicant meets the minimum
employment qualifications, as stated in any notice issued for
the position.
AB 1831 (Dickinson) of 2012: Held in Senate Governance and
Finance
AB 1831 is almost identical to this bill and would have
prohibit a county or city from inquiring about or considering
a job applicant's criminal background history until after
determining an applicant's qualifications. However, AB 1831
provisions were placed in the Government Code.
SUPPORT
Legal Services for Prisoners with Children - Co-Sponsor
National Employment Law Project - Co-Sponsor
PICO California - Co-Sponsor
A New Way of Life Reentry Project
Alameda County Board of Supervisors
All of Us or None - Sacramento Chapter
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees,
AFL-CIO
Asian & Pacific Islanders California Action Network
Bayview Baptist Church
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Coalition for Women Prisoners
California Communities United Institute
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California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Correctional Peace Officers Association (CCPOA)
California Drug Counseling, Inc.
California Employment Lawyers Association
California Labor federation, AFL-CIO
California Partnership
California Prison Focus
California Public Defenders Association
California State Conference of the National Association for the
Advancement of Colored People
California Teamsters Public Affairs Council
Californians for Safety and Justice
Californians United for a Responsible Budget
Center for Young Women's Development
Center on Juvenile and Criminal Justice
Chrysalis
City and County of San Francisco
City of Berkeley
City of Carson, Mayor Jim Dear
City of Richmond
Coalition on Homelessness
Community Coalition
Congregations Organizing for Renewal
Contra Costa Interfaith Supporting Community Organization
Drug Policy Alliance
East Bay Alliance for a Sustainable Economy
East Bay Community Law Center
Ella Baker Center for Human Rights
Engineers and Scientists of California
Equal Justice Society
Equal Rights Advocates
Friends Committee on Legislation of California
Homies Unidos
InnerCity Struggle
Justice First, LLP
Justice Not Jails
Justice Now
LA Voice
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Aid Society - Employment Law Center
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Senate Committee on Labor and Industrial Relations
Los Angeles Alliance for a New Economy
Los Angeles Regional Reentry Partnership
Mexican American Legal Defense and Educational Fund
Much More Bounce Inc./Ministries
National Association of Social Workers - California Chapter
National Council of La Raza
National HIRE Network
NMT/The Ripple Effects
Oakland Rising
Pacific Institute
PolicyLink
Professional & Technical Engineers, Local 21
Public Counsel
Sacramento Area Congregations Together (A.C.T.)
Saffron Strand, Inc.
San Francisco Public Defender Jeff Adachi
Santa Clara County Board of Supervisors
Service Employees International Union, Local 1000
SHIELDS for Families
Starting Over Inc.
Straight Talk Program, Inc.
The Greenlining Institute
The Sentencing Project
The Training Center
The Women's Council of the California Chapter of the National
Association of Social Workers
The Women's Foundation of California
Transgender Law Center
UNITE HERE
United food and Commercial Workers Union, Western States Council
University of California Student Association
Utility Workers Union of America, Local 132
Western Center on Law & Poverty
Youth Justice Coalition
Youth Policy Institute
OPPOSITION
Association of California Cities - Orange County
Association of California Water Agencies
California District Attorneys Association
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Senate Committee on Labor and Industrial Relations
California Special Districts Association
California State Association of Counties
City of Camarillo
Costa Mesa Sanitary District Board of Directors
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Lassen County
League of California Cities
Los Angeles County Board of Supervisors
Newhall County Water District
Orchard Dale Water District
Rowland Water District
Rural County Representatives of California
Solano County Board of Supervisors
Southwest California Legislative Council
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Senate Committee on Labor and Industrial Relations