BILL ANALYSIS Ó
AB 1650
Page 1
Date of Hearing: March 25, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1650 (Jones-Sawyer) - As Introduced: February 11, 2014
As Proposed to be Amended
SUBJECT : PUBLIC CONTRACTS: ON-SITE CONSTRUCTION EMPLOYMENT
PRACTICES
KEY ISSUES :
1)SHOULD STATE CONTRACTORS WITH REGARD TO ON-SITE CONSTRUCTION
RELATED EMPLOYMENT BE REQUIRED TO FOLLOW THE SAME PROCEDURE AS
STATE AND LOCAL AGENCIES BY POSTPONING QUESTIONS ABOUT A JOB
APPLICANT'S PRIOR CRIMINAL CONVICTIONS UNTIL AFTER THE
EMPLOYER HAS 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 CRIMINAL JUSTICE AGENCIES BE
EXEMPTED FROM THIS RULE, ALONG WITH ALL POSITIONS WITH ANY
EMPLOYER FOR WHICH CRIMINAL BACKGROUND CHECKS ARE LEGALLY
REQUIRED?
SYNOPSIS
This bill is consistent with but more limited than the author's
prior AB 870 and AB 1198, both of which passed the Committee
within the last year. AB 870 was held in Appropriations and AB
1198 died in Accountability and Administrative Review. As
proposed to be amended, this measure is narrower than its
immediate predecessor, AB 1198, in that it applies only to
on-site construction-related employment and largely exempts
employers who have a collective bargaining agreement with their
employees.
This bill concerns when - not whether - state contractors may
obtain criminal conviction information from applicants for
on-site construction-related 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
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any employer for which a criminal background investigation is
legally required. Supporters note that last year California
joined a number of other states and local governments by
adopting AB 218 (Dickinson) which established a similar but more
expansive policy for state and local government as this bill
proposes for state contractors.
The author and supporters state 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 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. Prior
to the proposed amendments, two business groups argued against
the bill, claiming that it would prohibit employers from ever
asking about conviction history and emphasizing that employers
should have the ability to use any and all hiring tools in
hiring their employees. The author's proposed amendments
clarify the bill's application and are believed to address the
opponents' concerns.
SUMMARY : Provides that state contractors must determine an
on-site construction-related job applicant's minimum
qualifications before obtaining and considering information
regarding the applicant's criminal conviction history.
Specifically, this bill :
1)Provides that the state shall not accept a bid from a person
that asks an applicant for on-site construction related
employment to disclose orally or in writing information
concerning the conviction history of the applicant on or at
the time of an initial employment application.
2)Specifies that this prohibition does not apply to a position
for which the person or state agency is otherwise required by
state or federal law to conduct a conviction history
background check or to any contract position with a criminal
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justice agency, as that term is defined in Section 13101 of
the Penal Code.
3)Further provides that this prohibition does not apply to a
person that has a collective bargaining agreement with its
employees that is consistent with the provisions of this
section.
EXISTING LAW :
1)Finds and declares that reducing barriers to employment for
people who have previously offended, and decreasing
unemployment in communities with concentrated numbers of
people who have previously offended, are matters of statewide
concern. Further finds and declares that, consistent with the
2011 Realignment Legislation addressing public safety,
increasing employment opportunities for people who have
previously offended will reduce recidivism and improve
economic stability in our communities. (Ch. 699, Stats.
2013.)
1)Provides, effective July 1, 2014, 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. This section does 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, 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. This section does not prevent a state or
local agency from conducting a conviction history background
check after complying with the foregoing provisions. (Labor
Code section 432.9.)
2)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.)
3)Provides pursuant to federal anti-discrimination law that a
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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).)
4)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.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
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
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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
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 Appears To Be Consistent With Existing State and Local
Employment Policy. In the same way that this bill proposes for
state contractors relative to on-site construction-related jobs,
existing law as the result of AB 218 (Dickinson) of 2013
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
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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. Like this bill, this public employment
rule does not apply to positions 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, 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. These rules
go into effect on July 1, 2014.
This Bill Seeks To Affect Only When - Not Whether - State
Contractors May Consider Criminal Conviction History. This bill
does not prohibit or otherwise limit a state contractor who
employs on-site construction-related employees from conducting a
criminal background check or making employment decisions on the
basis of an applicant's prior convictions. It simply specifies
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 whether 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
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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."
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 or
a government agency is otherwise required by law to conduct a
conviction history background check, as well as any contract
position within a criminal justice agency. The 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.)
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
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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 Releases 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.
ARGUMENTS IN OPPOSITION : Prior to the author's proposed
amendments, the California Chamber of Commerce and the Civil
Justice Association of California registered their opposition to
the bill, stating that it "eliminates a state contractor's
ability to investigate into the criminal history of an
applicant." They stated that such a prohibition would "force
contractors into no-win situation, as the contractor essentially
has to decide between properly investigating an applicant whom
the contractor is considering hiring into its workforce, or
foregoing such investigation in order to potentially obtain a
new contract." They further emphasize a concern about potential
liability for negligent hiring if the hired individual commits
an act similar to his/her previous crime. It is believed that
the author's proposed amendments address these concerns.
Author's Proposed Clarifying Amendments. In order to clarify
the correct scope of the bill, the author proposes the following
revision, which should address the concerns of the groups in
opposition.
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Section 10186 is added to the Public Contract Code, to read:
(a)A state agency The state shall not accept a bid from a
person that asks an applicant for on-site construction
related employment to disclose orally or in writing
information concerning the conviction history of the
applicant on or at the time of an initial employment
application . This subdivision applies to both oral and
written disclosures and disclosures made on an initial
employment application
(b)This section shall not apply to a position for which the
person or state agency is otherwise required by state or
federal law to conduct a conviction or criminal 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 a state
agency from accepting a bid from a person that conducts a
conviction history background check after complying with
all of the provisions of subdivision (a).
(d) This section shall not apply to a person that has a
collective bargaining agreement with its employees that is
consistent with the provisions of this section .
REGISTERED SUPPORT / OPPOSITION :
Support
Legal Services for Prisoners with Children
National Association of Social Workers - California Chapter
Opposition
California Chamber of Commerce
Civil Justice Association of California
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334