BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 218 (Dickinson)
As Amended May 24, 2013
Hearing Date: July 2, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment Applications: Criminal History
DESCRIPTION
This bill would prohibit a state or local agency from asking an
employment applicant to disclose information concerning the
applicant's conviction history until the agency has determined
the applicant meets the minimum employment qualifications as
stated in any notice issued for the employment position.
This bill would exempt employment positions for which a state or
local agency is required by law to conduct a conviction history
background check, criminal justice agency positions, and
individuals working for a criminal justice agency on a contract
basis or on loan from another governmental entity.
BACKGROUND
The Equal Employment Opportunity Commission (EEOC) enforces
Title VII of the Civil Rights Act of 1964 (Title VII), which
prohibits employment discrimination based on race, color,
religion, sex or national origin. The EEOC recently updated its
Enforcement Guidance regarding an employer's use of a criminal
history as part of the employment screening process. This
Enforcement Guidance reported:
In the last twenty years, there has been a significant
increase in the number of Americans who have had contacts with
the criminal justice system and, concomitantly, a major
increase in the number of people with criminal records in the
working-age population. In 1991, only 1.8 [percent] of the
(more)
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adult population had served time in prison. After ten years,
in 2001, the percentage rose to 2.7 [percent] (1 in 37
adults). By the end of 2007, 3.2 [percent] of all adults in
the United States (1 in every 31) were under some form of
correctional control involving probation, parole, prison, or
jail. The Department of Justice's Bureau of Justice
Statistics . . . has concluded that, if incarceration rates do
not decrease, approximately 6.6 [percent] of all persons born
in the United States in 2001 will serve time in state or
federal prison during their lifetimes.
Arrest and incarceration rates are particularly high for
African American and Hispanic men. African Americans and
Hispanics are arrested at a rate that is 2 to 3 times their
proportion of the general population. Assuming that current
incarceration rates remain unchanged, about 1 in 17 White men
are expected to serve time in prison during their lifetime; by
contrast, this rate climbs to 1 in 6 for Hispanic men; and to
1 in 3 for African American men.
. . .
In one survey, a total of 92 [percent] of responding employers
stated that they subjected all of some of their job candidates
to criminal background checks. Employers have reported that
their use of criminal history information is related to
ongoing efforts to combat theft and fraud, as well as
heightened concerns about workplace violence and potential
liability for negligent hiring.
. . .
The EEOC enforces Title VII, which prohibits employment
discrimination based on race, color, religion, sex, or
national origin. Having a criminal record is not listed as a
protected basis in Title VII. Therefore, whether a covered
employer's reliance on a criminal record to deny employment
violates Title VII depends on whether it is part of a claim of
employment discrimination based on race, color, religion, sex,
or national origin. (EEOC Enforcement Guidance, Consideration
of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964, No. 915.002 (Apr.
25, 2012) [as of June 24, 2013].)
The EEOC notes that as with arrest records, which may include
inaccuracies or may continue to be reported even if expunged or
sealed, an employer's use of conviction records may not provide
the employer with accurate information. Existing state law
prohibits a public or private employer from inquiring into or
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requiring disclosure of information concerning an arrest or
detention of an employment applicant that did not result in a
conviction. This bill would further prohibit a state or local
agency employer from requiring an employment applicant to
disclose information concerning the applicant's conviction
history until the agency has determined that the applicant meets
the minimum employment qualifications, as specified.
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 26, 2013, and passed out on a vote of 3-1.
CHANGES TO EXISTING LAW
Existing law prohibits a public or private employer from
inquiring into or requiring disclosure by an employment
applicant of an arrest or detention that did not result in
conviction. (Lab. Code Sec. 432.7.)
Existing law provides that a violation of that prohibition is a
misdemeanor. (Lab. Code Sec. 433.)
This bill would prohibit a state or local agency from asking an
employment applicant 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. After complying with these provisions,
the state or local agency could conduct a conviction history
background check.
This bill would exempt from that prohibition a position for
which a state or local agency is otherwise required by law to
conduct a conviction history background check, to 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 would define "state agency" to mean any state office,
officer, department, division, bureau, board, commission, or
agency.
This bill would define "local agency" to mean any county, city,
city and county, including a charter city or county, or any
special district.
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This bill would specify that an employer in violation of the
above provisions would not be subject to a misdemeanor.
This bill would become operative on July 1, 2014.
COMMENT
1. Stated need for the bill
The author writes:
AB 218 will 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 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. With this bill, 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.
The sponsors of this bill, All of Us or None, Legal Services for
Prisoners with Children, the National Employment Law Project,
and PICO California, write:
In California and around the country, qualified job applicants
are often plagued by old or minor records and discouraged from
applying because a "box" on job applicants requires criminal
history information that often leads employers to dismiss
applicants at the outset. Because people of color are
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especially hard hit, the U.S. Equal Employment Opportunity
Commission (EEOC) recently endorsed as a best practice
removing the question about conviction histories from job
applications to maximize compliance with federal civil rights
law.
AB 218 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 a criminal background check until the later stages of
the hiring process. AB 218 allows people with a conviction
history to compete fairly for employment without compromising
safety and security at the workplace. The bill exempts jobs
for which a criminal background check is legally required and
law enforcement related positions. Public sector employers in
California have a special obligation to pave the way for the
private sector to reduce barriers to employment of people with
criminal records.
2.Potential discriminatory implications of employer requests for
conviction history
This bill would prohibit a state or local agency from asking an
employment applicant to disclose information concerning the
applicant's conviction history until the agency has determined
the applicant meets the minimum employment qualifications as
stated in any notice issued for the employment position. This
bill would exempt employment positions for which a state or
local agency is required by law to conduct a conviction history
background check, criminal justice agency positions, and
individuals working for a criminal justice agency on a contract
basis or on loan from another governmental entity.
Under Title VII of the Civil Rights Act of 1964 (Title VII),
employers are prohibited from discriminating on the basis of
race, color, religion, sex, or national origin. It is unlawful
to discriminate against any individual in regard to recruiting,
hiring and promotion, transfer, work assignments, performance
measurements, the work environment, job training, discipline and
discharge, wages and benefits, or any other term, condition, or
privilege of employment. Title VII prohibits not only
intentional discrimination, but also neutral job policies that
disproportionately affect persons of a certain race or color and
that are not related to the job and the needs of the business.
(See Griggs v. Duke Power Co., (1971) 401 U.S. 424, 431 ("The
Act proscribes not only overt discrimination but also practices
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that are fair in form, but discriminatory in operation.").)
Accordingly, if an employment practice has a disparate impact
based on a protected characteristic, the practice is unlawful
unless the employer can establish that it is job related and
consistent with business necessity. (42 U.S.C. Sec.
2000e-(k)(1)(A)(i).)
The U.S. Equal Employment Opportunity Commission (EEOC) has had
a longstanding position that an employer's use of criminal
records to screen for employment can have an unlawful disparate
impact in violation of Title VII's prohibitions against race and
national origin discrimination. (See EEOC Enforcement Guidance,
Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964, No.
915.002 (Apr. 25, 2012) [as of June 24, 2013].) The Drug Policy
Alliance, in support, provides additional information that
supplements this reasoning:
The discrimination experienced by individuals with old
criminal convictions is well documents, and a wide body of
research demonstrates that the consequences of a criminal
conviction on opportunities for employment are particularly
severe. For example, a major study of hiring practices shows
that in nearly 50 [percent] of cases, employers were unwilling
to consider equally qualified applicants on the basis of their
criminal record. Another survey of employer attitudes
reflected that 40 [percent] of employers will not even
consider a job applicant for employment once they are aware
that the individual has a criminal record. The discrimination
faced by persons with a criminal history in the application
process prevents many individuals from securing employment,
despite their qualifications for the job. This is why the
[EEOC] requires employers to establish a strong nexus between
an individual's criminal history and the specific
responsibilities of a given job.
AB 218 holds special significance to communities of color, who
are faced with additional discrimination and are even less
likely to be considered for employment than white applicants
with criminal convictions. In fact, research has shown that
black men without criminal records are more likely than white
men with a criminal record to experience discrimination in
hiring. Given the disproportionate impact the war on drugs
and mass incarceration has had on communities of color,
barriers to reentry following incarceration such as
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discriminatory employment practices against persons with old
criminal records must end.
In 2010, pursuant to an administrative directive under Governor
Schwarzenegger, the California State Personnel Board revised the
State Examination/Employment Application for state employees to
remove questions asking about criminal convictions. The new
employment application does not ask applicants to provide
conviction history information; however, if an applicant is
applying for a classification or position "to which a criminal
record is pertinent," the applicant is required to complete the
Criminal Record Supplemental Questionnaire. Importantly, not
all examinations or applications require the completion of this
questionnaire. The questionnaire restricts inquiries to
felonies and domestic violence misdemeanors.
Additionally, several California communities have already
adopted policies removing questions about past convictions on
initial public employment applications, including the County of
Santa Clara, Alameda County, the City of Richmond, the City and
County of San Francisco, and the City of Berkeley. Six states,
Colorado, Connecticut, Maryland, Massachusetts, Minnesota, and
New Mexico have enacted "ban the box" legislation, which removes
the question on the job application about an individual's
conviction history and delays the background check until later
in the hiring process.
This bill similarly seeks to reduce unnecessary barriers to
employment by prohibiting a state or local agency employer from
questioning an applicant about his or her conviction history
until the agency has determined that the applicant meets the
minimum employment qualifications. Notably, this bill would not
apply to a position for which a state or local agency is
otherwise required by law to conduct a conviction history
background check, to 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. Additionally, this bill
does not prevent the agency from conducting a conviction history
background check once the agency has established that the
applicant meets the minimum requirements. Accordingly, this
bill seeks to prevent the same unnecessary discrimination
against applicants as is provided in existing law regarding an
applicant's arrest history.
3.Opposition concerns
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In opposition to this bill, the California State Association of
Counties states:
AB 218 removes the discretion of local agencies to design an
employment policy that works locally, instead applying a
one-size-fits-all approach to those public entities which
should ultimately decide what hiring practices are best for
their employees.
Counties and special districts serve vulnerable populations;
as such, numerous positions and classifications within local
agency employment, such as social workers, staff in the child
protective services, child support and elder abuse areas, as
well as staff serving in treasurer and tax collector functions
undergo a background check in order to protect the needs of
local residents utilizing those county services. AB 218
essentially delays when a local agency employer may inquire
into the criminal history of a job applicant, thereby creating
delays and increased costs for local agencies screening
potential employees whose applications will ultimately be
rejected due to the nature of the position. We think it would
be impractical to amend AB 218 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; instead, local agencies - which routinely
hire individuals with criminal histories when those candidates
are best qualified for the position - should reserve the
discretion to create an employment process that best serves
the community.
These concerns mirror the concerns expressed by various public
agencies and associations.
Support : 9to5 California; A New Way of Life Reentry Project;
Alameda County Board of Supervisors; All of Us or None, Los
Angeles/Long Beach; All of Us or None - Sacramento; 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, Inc.; California Coalition for Women Prisoners;
California Communities United Institute; California Conference
of Machinists; California Conference Board of the Amalgamated
Transit Union; California Correctional Peace Officers
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Association; 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 on Juvenile and Criminal Justice;
Chrysalis; City and County of San Francisco, Adult Probation
Department; City and County of San Francisco, Office of the
District Attorney; City of Berkeley; City of Carson, Office of
the Mayor; City of Richmond, Office of the Chief of Police; City
of Richmond, Office of the City Council; Coalition on
Homelessness; Community Coalition; Congregations Organizing for
Renewal; Contra Costa Interfaith Supporting Community
Organization; Crossroad Bible Institute; Drug Policy Alliance;
East Bay Alliance for a Sustainable Economy; East Bay Community
Law Center, Clean Slate Practice; Ella Baker Center for Human
Rights; Engineers and Scientists of California; Equal Justice
Society; Equal Rights Advocates; Friends Committee on
Legislation of California; Greenlining Institute; Homies Unidos;
InnerCity Struggle; Justice First, LLP; Justice Not Jails
Coalition; Justice Now; LA Voice; 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; Mexican American Legal
Defense and Educational Fund; Much More Bounce, Inc./Ministries;
National Association of Social Workers; National Council of La
Raza; National H.I.R.E. Network; NMT/The Ripple Effects; Oakland
Rising; Pacific Institute; PolicyLink; Professional & Technical
Engineers, Local 21; Public Counsel; Sacramento Area
Congregations Together; Saffron Strand, Inc.; San Francisco
Public Defender; Sanmina; Santa Clara County Board of
Supervisors; Service Employees International Union, Local 1000;
SHIELDS for Families; Starting Over, Inc.; Straight Talk
Program, Inc.; The Center for Young Women's Development; The
Sentencing Project; Training Center; 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 and Poverty; Women's Council of the California Chapter of
the National Association of Social Workers; Women's Foundation;
Youth Justice Coalition; Youth Policy Institute; two individuals
Opposition : Association of California Cities - Orange County;
Association of California Water Agencies; California District
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Attorneys Association; California Special Districts Association;
California State Association of Counties; City of Camarillo;
Costa Mesa Sanitary District; County of Lassen; Desert Water
Agency; East Valley Water District; El Dorado Irrigation
District; Los Angeles 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
HISTORY
Source : All of Us or None; Legal Services for Prisoners with
Children; National Employment Law Project; PICO California
Related Pending Legislation : AB 870 (Jones-Sawyer) would
prohibit the state from accepting a bid from a person or entity
that asks an employment applicant information concerning the
applicant's conviction history, as specified. AB 870 has been
held under submission in the Assembly Committee on
Appropriations.
Prior Legislation :
AB 1831 (Dickinson, 2012) would have prohibited a local agency
from inquiring into or considering the criminal history of an
applicant or including any inquiry about criminal history on any
initial employment application. This bill was held in the
Senate Committee on Governance and Finance.
Prior Vote :
Senate Committee on Labor and Industrial Relations (Ayes 3, Noes
1)
Assembly Floor (Ayes 48, Noes 29)
Assembly Committee on Appropriations (Ayes 12, Noes 5)
Assembly Committee on Judiciary (Ayes 6, Noes 3)
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