BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 1650 (Jones-Sawyer)
          As Amended May 28, 2014
          Hearing Date: June 17, 2014
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                  Public Contracts:  Bidders:  Employment Practices

                                      DESCRIPTION  

          This bill would require any person submitting a bid to the state  
          on a contract involving onsite construction-related services to  
          certify that the person does not ask an applicant for onsite  
          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  
          bill would not apply to a position for which the person or the  
          state is otherwise required by state or federal law to conduct a  
          conviction history background check or to any contract position  
          with a criminal justice agency.

                                      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  
            adult population had served time in prison.  After ten years,  
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            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 or 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 6, 2014].)

          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  
          requiring disclosure of information concerning an arrest or  
          detention of an employment applicant that did not result in a  
                                                                      



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          conviction and prohibits 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 would similarly limit the use of an applicant's  
          conviction history by requiring any person submitting a bid to  
          the state on a contract involving onsite construction-related  
          services to certify that the person does not ask an applicant  
          for onsite construction-related employment to disclose  
          information concerning the conviction history of the applicant  
          on or at the time of an initial employment application.  

          This bill is similar to AB 870 (Jones-Sawyer, 2013) and AB 1198  
          (Jones-Sawyer, 2014), which would have prohibited the state from  
          accepting bids from a person or entity that asks an applicant to  
          disclose criminal history information.  AB 870 was held under  
          submission in the Assembly Committee on Appropriations, and AB  
          1198 was held in the Assembly Committee on Accountability and  
          Administrative Review.
          This bill was heard by the Senate Committee on Governmental  
          Organization on June 10, 2014, and passed out on a vote of 7-1.

                                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.)

           Existing law  , as of July 1, 2014, prohibits a state or local  
          agency from asking 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.  

          However, this prohibition 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, or to any individual working on a  
                                                                      



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          temporary or permanent basis for a criminal justice agency on a  
          contract basis or on loan from another governmental entity.   
          Further, this prohibition does prevent a state or local agency  
          from later conducting a conviction history background check.   
          (Lab. Code Sec. 432.9.)
           
          This bill  would enact the Fair Chance Employment Act and require  
          any person submitting a bid to the state on a contract involving  
          onsite construction-related services to certify that the person  
          does not ask an applicant for onsite 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 bill  would not apply to a position for which the person or  
          the state is otherwise required by state or federal law to  
          conduct a conviction history background check or to any contract  
          position with a criminal justice agency.

           This bill  also would not apply to a person to the extent that he  
          or she obtains workers from a hiring hall pursuant to a bona  
          fide collective bargaining agreement.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            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 the California Research Bureau,  
                                                                      



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            California parolees have an unemployment rate of 80%.  Studies  
            have implicated that there is a direct [correlation] present  
            between the rates of recidivism and the lack of employment for  
            individuals with criminal backgrounds.

            The U.S. Department of Justice estimates that 95% 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[, and] 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. 

            AB 1650 will require that any persons or entities that  
            contract with the State of California certify that they do not  
            inquire about the criminal history of a potential employee  
            until after the initial employment application.  This policy  
            only applies to on site [construction-related] jobs that fall  
            under the State Contract Act which includes the erection,  
            construction, alteration, repair, or improvement of any state  
            structure, building, road, or improvement project.
           2.Potential discriminatory implications of employer requests for  
            conviction history
             
          This bill would require a person submitting a bid to the state  
          on a construction services contract to certify that the person  
          does not ask an employment applicant to disclose information  
          concerning the conviction history of the applicant on or at the  
          time of an initial employment application.  This bill would not  
          apply to a position for which the person or the state is  
          otherwise required by state or federal law to conduct a  
          conviction history background check or to any contract position  
          with a criminal justice agency.

          Under Title VII of the Civil Rights Act of 1964 (Title VII),  
                                                                      



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          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  
          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 6, 2014].)

          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  
                                                                      



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          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 requiring a bidder for a state construction  
          project to certify that he or she does not ask an applicant for  
          construction employment to disclose conviction history of the  
          applicant on or at the time of an initial employment  
          application.  Notably, this bill would not apply to a position  
          for which the bidder or state is otherwise required by law to  
          conduct a conviction history background check, to any position  
          within a criminal justice agency, or to a bidder to the extent  
          that he or she obtains workers from a hiring hall under a  
          collective bargaining agreement.  Additionally, this bill does  
          not prevent the bidder from conducting a conviction history  
          background check once the bidder 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.


           Support  :  Legal Services for Prisoners with Children; National  
          Association of Social Workers - California Chapter

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1198 (Jones-Sawyer, 2014) See Background.

          AB 870 (Jones-Sawyer, 2013) See Background.

          AB 218 (Dickinson, Ch. 699, Stats. 2013) prohibited a state or  
          local agency employer from requiring an employment applicant to  
          disclose information concerning the applicant's conviction  
                                                                      



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          history until the agency has determined that the applicant meets  
          the minimum employment qualifications, as specified.

          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.  AB 1831 was held in the Senate  
          Committee on Governance and Finance.

           Prior Vote  :

          Assembly Floor (Ayes 58, Noes 16)
          Assembly Committee on Appropriations (Ayes 13, Noes 0)
          Assembly Committee on Judiciary (Ayes 10, Noes 0)

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