BILL ANALYSIS �
AB 870
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 870 (Jones-Sawyer) - As Introduced: February 22, 2013
As Proposed to be Amended
SUBJECT : STATE CONTRACTORS: CRIMINAL CONVICTION HISTORY
KEY ISSUES :
1)SHOULD STATE CONTRACTORS 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 CONRACT POSITIONS WITH 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 contractors may
obtain criminal conviction information from applicants for
employment. Under the bill, this information may be sought and
considered after the state contractor has determined that the
applicant meets the minimum qualifications for the job. The
bill exempts contract positions in all criminal justice
agencies, as well as all positions with any employer for which a
criminal background investigation is required. The author and
supporters comment that men and women released from prison often
face daunting obstacles as they return home to their
communities, none more difficult than finding employment. Not
surprisingly, supporters state, after being unable to find a
job, many end up returning to prison, a disastrous result for
them, their families, communities, taxpayers, and public safety.
Supporters note that felony convictions are often treated as an
automatic disqualification in employment application procedures
without much justification. Supporters argue that six states,
32 U.S. cities, and 8 cities and counties across California have
removed the conviction history box from job applications in
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public employment and contractors who conduct business with the
public. They conclude that the State of California currently
contracts with over 30,000 individuals and entities for
services, and that removing the conviction history box can give
thousands of individuals a fair shot at employment while
simultaneously decreasing the recidivism rate, increasing
economic activity and improving public safety.
Opponents argue that the bill is unworkable because it conflicts
with other requirements, and because it obligates employers to
conduct unnecessary job interviews for applicants who they are
either entitled or required to reject.
SUMMARY : Provides that state contractors 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 contractor 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 an
employer is otherwise required by law to conduct a conviction
history background check, and any contract position within a
criminal justice agency.
3)Specifies that this section shall not be construed to prevent
a state contractor 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.)
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
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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, "This bill is attempting to
address three issues: (1) discriminatory employment practices
for individuals with prior criminal convictions (2) extremely
high unemployment rates for individuals with criminal
backgrounds (3) high recidivism rates within California."
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:
Men and women released from prison often face daunting
obstacles as they return home to their communities, however
none can be more difficult than finding employment.
According to a 2006 Huffington Post survey of over 619 Los
Angeles County employers, only 20% said they would hire
people with prior convictions. Former prisoners are often
concentrated in a relatively small number of distressed
urban neighborhoods that lack the resources needed to
assist them in the reentry process. Not surprisingly, after
being unable to find a job, many end up returning to
prison, a disastrous result for them, their families,
communities, taxpayers, and public safety.
Across California, felony convictions are often treated as
an automatic disqualification in employment application
procedures. Without much justification individuals with
criminal records are excluded from being considered for
employment. According to a 2009 Joyce Foundation's report
titled, "Transitional Jobs Reentry Demonstration,"
employment rates for former prisoners during the year
following release exceeds 50 percent across the United
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States. Studies have implicated that there is a direct
co-relation present between the rates of recidivism and the
lack of employment for individuals with criminal
backgrounds.
According to the U.S. Department of Justice, an estimated
95 percent of all state prisoners will be released-with
half of these individuals expected to return to prison
within three years for the commission of a new crime or
violation of their conditions of release. This cycle of
recidivism not only compromises public safety, but also
increases taxpayer spending.
In order to fight this alarming trend six states, 32 U.S.
cities and 8 cities and counties across California
including San Francisco, Richmond & Alameda County have
removed the conviction history box from job applications in
public employment and contractors who conduct business with
the public. These entities have recognized that stable
employment is critical to a successful transition into the
community. According to a study in Illinois that followed
1,600 individuals recently released from state prison, only
8% of those who were employed for a year or more committed
another crime, compared to the state's 54% average
recidivism rate.
The State of California currently contracts with over
30,000 individuals and entities for services. Removing the
conviction history box can give thousands of individuals a
fair shot at employment while simultaneously decreasing the
recidivism rate, increasing economic activity and improving
public safety.
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
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.
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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
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."
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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 contractor is
otherwise required by law to conduct a conviction history
background check, as well as any contract position within a
criminal justice agency. 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.)
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 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
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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 870. Among the states with
similar laws are Colorado, Connecticut, Hawaii, Massachusetts,
Minnesota, and New Mexico.
ARGUMENTS IN OPPOSITION : The Southern California Contractors
Association argues in opposition:
AB 870 has the laudable goal of increasing employment
opportunities for Californians. SCCA has no qualms with
this goal. However, AB 870 is simply unworkable from our
perspective. Many construction companies are required to
have all their employees undergo criminal background checks
prior to initiating a construction project. The most common
one is the TWIC background check conducted by the TSA for
airport construction work. Under AB 870, a construction
company could not screen applicants before hiring them to
work at a jobsite requiring a background check.
State policy appears to be contrary to AB 870. Education
Code Section 45125.2(a)(2) requires a construction worker
to undergo a criminal history check prior to working at a
school construction site.
Legislation adding this section was the response to the
1997 murder of Michelle Montoya at a Sacramento high
school. She was raped and killed by an employee who was
allowed to start his job before a background check was
completed. The suspect was a convicted felon.
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AB 870 is unworkable for the members of SCCA and represents
a step in the wrong direction for California policy.
The bill is also opposed by the California Bankers Association,
which argues for an exemption for "banks that are prohibited
under federal law relating to hiring persons convicted of
certain crimes." CBA states, "Although the bill does not
require banks to hire persons convicted of a crime, it does
require banks to unnecessarily go through the interview process
with a person that has already been disqualified for
employment."
Author's Proposed Technical Amendments. In order to better
clarify the intent of the measure, the author proposes the
following technical amendments:
SEC. 2. Section 10186 is added to the Public Contract Code, to
read:
(a) The state shall not accept a bid from 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 any inquiry about
conviction history on any employment application, until the
employer has determined that the applicant meets the
minimum employment qualifications, as stated in the any
notice issued for the position. inquires into or considers
the criminal history of a potential employee or includes
any inquiry about criminal history on any initial
employment application. The state may accept a bid from a
person or entity that inquires into or considers a
potential employee's criminal history after the applicant's
qualifications have been screened and the person or entity
has determined that the applicant meets the minimum
employment requirements, as stated in any notice issued for
the position.
(b) This section shall not apply to a position for which an
employer is otherwise required by law to conduct a criminal
conviction history background check or to any contract
position with a criminal justice agency, as that term is
defined in Section 13101 of the Penal Code.
(c) This section shall not be construed to prevent the
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state from accepting a bid from a person or entity that
conducts a criminal conviction history background check
after complying with all of the provisions of subdivision
(a).
SEC. 3. Section 10324 is added to the Public Contract Code, to
read:
(a) The state shall not accept a bid from 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 any inquiry about
conviction history on any employment application, until the
employer has determined that the applicant meets the
minimum employment qualifications, as stated in the any
notice issued for the position. inquires into or considers
the criminal history of a potential employee or includes
any inquiry about criminal history on any initial
employment application. The state may accept a bid from a
person or entity that inquires into or considers a
potential employee's criminal history after the applicant's
qualifications have been screened and the person or entity
has determined that the applicant meets the minimum
employment requirements, as stated in any notice issued for
the position .
(b) This section shall not apply to a position for which an
employer is otherwise required by law to conduct a criminal
conviction history background check or to any contract
position with a criminal justice agency, as that term is
defined in Section 13101 of the Penal Code.
(c) This section shall not be construed to prevent the
state from accepting a bid from a person or entity that
conducts 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
218 (Dickinson), would enact a similar policy for state and
local agencies. That bill has been referred to the Committee.
A prior measure, AB 1831 (Dickinson), was held in the Senate
Governance and Finance Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
AFSCME
All of Us or None, Los Angeles/Long Beach
A New Way of Life Reentry Project
California Attorneys for Criminal Justice
California Communities United Institute
California Police Chiefs Association, Inc.
Californians United for a Responsible Budget
Drug Policy Alliance
Greenlining Institute
Justice Now
Legal Services for Prisoners With Children
Los Angeles Alliance for a New Economy
National Association of Social Workers - California Chapter
National Association of Social Workers - California Chapter
Women's Council
National Employment Law Project
Oakland Rising
Wendy Still, San Francisco Chief Adult Probation Officer
Young Women's Development
Opposition
California Bankers Association
Southern California Contractors Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334