BILL ANALYSIS
AB 2727
Page 1
Date of Hearing: April 21, 2010
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2727 (Bradford) - As Introduced: February 19, 2010
SUBJECT : Applicant information: criminal history.
SUMMARY : Prohibits an employer from denying an application for
employment to an individual based on that individual's prior
conviction for a criminal offense, except as specified.
Specifically, this bill :
1)Prohibits employers, including public agencies, private
individuals and corporations, from denying an application for
employment to an individual based on his or her prior
conviction record unless the employer the determines:
a) There is a direct relationship between the criminal
offense(s) and the employment sought.
b) The granting of employment would involve an unreasonable
risk to property or to the safety or welfare of specific
persons or the general public.
2)Requires an employer to consider, when making a determination
for employment of an individual with prior conviction for a
criminal offence, the following:
a) The public policy of this state to encourage the
employment of persons previously convicted of criminal
offences.
b) The specific duties of the employment sought.
c) The effect, if any, that the conviction will have on the
applicant's fitness to perform the duties of the employment
sought.
d) The time between the conviction and the application for
employment.
e) The age of the person at the time he or she committed
the offense that resulted in the conviction.
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f) The seriousness of the offense.
g) Any information produced by or on behalf of the
applicant relating to his or her rehabilitation and good
conduct since the conviction.
h) The legitimate interests of the employer to protect
property and the safety and welfare of specific individuals
and the general public.
EXISTING FEDERAL LAW establishes the Equal Employment
Opportunity Commission (EEOC) to enforce federal laws that
prohibit employment discrimination.
EXISTING STATE LAW :
1)Prohibits an employer from asking an applicant to disclose an
arrest or detention that did not result in conviction.
2)Prohibits an employer from using a prior arrest or detention
that did not result in a conviction as a factor when
determining employment, unless:
a) The applicant is seeking a position as a peace officer,
a position with the Department of Justice, or other
criminal justice agencies as defined in Section 13101 of
the Penal Code.
b) The applicant is seeking a position at a health
facility:
i) Employers are permitted to ask applicants to
disclose arrests pursuant to the Sex Offender
Registration Act, as specified in Section 290 of the
Penal Code, when the position provides regular access to
access patients.
ii) Employers are permitted to ask applicants to
disclose arrests for possession of a controlled
substance, as specified in Section 11590 of the Health
and Safety Code, if the position provides access to drugs
and medication.
c) The applicant is out on bail or on his or her own
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reconnaissance.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, this bill would empower
employers to determine whether a prior conviction would have a
significant effect on the future job performance of an applicant
while maintaining public safety. The author notes that, by
codifying long-standing EEOC policy into state law, the bill
protects an applicant with a conviction record from being denied
employment based solely on his or her prior conviction. In
addition, the bill preserves the right of employers to perform a
criminal background check by allowing employers to consider the
applicants conviction in relation to the job for which he or she
is applying.
The author also states that California's 70 percent recidivism
rate is the highest in the nation. He also writes, "Each month
the Department of Corrections releases approximately 10,000
people from California's prisons. Nearly two-thirds of the
people released from prison served time for non-violent
offenses, including drug offenses (37 percent) and property
offenses (25 percent). Additionally, the state has begun
releasing non-serious, non-violent and non-sex offender inmates
in response to prison overcrowding and high prison spending.
Over the years, released inmates, particularly those who
participated in technical training programs while incarcerated
and are seeking a new way of life, find difficulty obtaining
employment. Oftentimes, their application for employment never
advances to the next round of hiring process once the
'conviction box' is noticed."
Research indicates that reentry into the labor market is among
the most challenging situations that formerly incarcerated
persons face upon release. According to a 2003 Urban Institute
study, Employment Barriers Facing Ex-Offenders (UI Study) ,
employment rates and earnings of ex-offenders are low by almost
any standard and low employment rates seem closely related to
high recidivism rates. The UI Study notes that ex-offenders
have a variety of characteristics that greatly limit their
employability and earning capacities, including limited
education and work experience. For example, approximately 70
percent of offenders and ex-offenders are high school dropouts.
In addition, employment rates of those involved in criminal
activities generally lagged behind non-offenders. The UI Study
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asserts that these factors, among others, limit employability
because they limit basic job-readiness that employers almost
universally seek as a pre-condition for employment.
The UI Study also states that lack of skills and work experience
can generally conflict with the skills and credentials sought by
employers, even when trying to fill relative unskilled jobs.
The firms that are most likely to hire ex-offenders are in the
manufacturing, construction, and transportation sectors.
However, because these industries have fewer jobs requiring
little to no customer contact, employment opportunities have
depleted. In contrast, service industries that require
significant customer contact, have been less willing to hire
ex-offenders.
According to a report by the East Bay Community Foundation
(Report), formerly incarcerated individuals have a high interest
in employment in the green technology and construction fields.
Green technology is viewed as a growth industry with good pay,
where lack of experience might be less of a barrier because of
the newness of the field. Construction is also viewed as a
desirable industry because of the pay and the ability to qualify
for jobs through specific training. However, in the Report, many
green-tech employers expressed concerns about hiring
ex-offenders as employees because of the nature of their
business. Much of the green tech business is conducted in
private residences and employers have concerned about the
liability involved in employing those with criminal records.
Survey data also indicate that an employer's willingness to hire
an individual with a conviction record is dependent on the type
of offense committed. Approximately half of employers surveyed
were willing to hire an individual convicted of a drug offense,
while almost 90 percent stated that they were unwilling to hire
an individual convicted of a violent offense. This Report
asserts that this finding suggests that the type of offense for
which an applicant was convicted plays a role in an employer's
decision on whether to hire an ex-offender.
Background on EEOC Guidelines
Many years ago, the EEOC modified its policy regarding the
manner in which a business necessity is established for denying
an individual employment because of a conviction record. The
revised policy requires an employer, when faced with an
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allegation of discrimination based on failing to hire as a
result of a conviction policy or practice, to determine the
action was justified by business necessity. According to EEOC,
an employer must show that it considered three factors to
determine whether its decision was justified by business
activity. The three factors include:
1)The nature and gravity of the offense or offenses.
2)The time that has passed since the conviction and/or the
completion of the sentences.
3)The nature of the job sought.
The EEOC stated, in a Policy Statement on the Issue of
Conviction Records under Title VII of the Civil Rights Act of
1964, that an absolute bar to employment based on the mere fact
that an individual has a conviction record is unlawful under
Title VII of the federal Civil Rights Act.
In addition, the EEOC Policy Statement on the Issue of
Conviction Records asserts that an employer's policy or practice
of excluding individuals from employment on the basis of their
conviction records has an adverse impact on African American and
Latino workers in light of statistics showing that they are
convicted at a disproportionately higher rate than their
representation in the population. Refusing to hire people with
conviction records can have a disparate impact, and may
therefore be unlawful under the federal Civil Rights Act of
1964.
New York State Law
New York has a state law similar to the provisions proposed in
this bill. Article 23a of New York State's Correction Law
prohibits public and private employers from denying employment
to individuals previously convicted of one or more criminal
offenses in a manner similar to the provisions in this bill.
The New York statute also requires employers to consider
specific factors similar to those proposed in this bill, when
considering a previously convicted individual's employment. The
New York statue, however, goes a step further than this bill, as
it requires employers to submit a written statement, within 30
days of request by a previously convicted person, stating the
reasons for which the individual was denied employment.
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Finally, employers who violate the New York stature can be
charged with a misdemeanor.
ARGUMENTS IN SUPPORT:
The City of Compton, co-sponsor of this bill, writes that this
bill protects the employment rights of people with prior
convictions. The city states that experience has shown that the
surest path to rehabilitation is good employment and employment
opportunities, which this bill seeks to ensure. The Urban
League of San Diego County (ULSDC) echoes the City of Compton's
statements, and also notes that California's recidivism rate is
the highest in the nation at 70%. ULSDC asserts that the lack
of job opportunities available to people with prior convictions
plays a role in the state's high recidivism rate and they
believe that this legislation is a step in the right direction.
The National Employment Law Project (NELP), in supporting this
bill, writes that the criminal background checks by employers
have expanded significantly in recent years, yet insufficient
attention has been paid to the fairness of the process and to
their detrimental impact on the one in five Californians who
have a criminal record that shows up on a routine criminal
background check. They state that, in these trying economic
times, it is especially important to eliminate unfair barriers
to employment and to ensure that all workers are considered for
employment on their merits.
The Greater Sacramento Urban League, co-sponsor of this bill,
believes this bill will create opportunities for local
communities to be part of absorbing, in productive ways, those
who have paid their debt to society and who want to make a fresh
start in a new direction. They also believe this legislation is
a matter of public safety and economic common sense since it
helps lower crime as well as lowering the cost of incarceration
in out state.
ARGUMENTS IN OPPOSITION:
The California Employment Law Council (CELC) argues that this
bill unfairly burdens employers. They write that the bill would
prohibit prospective employers from denying an application for
employment based upon a criminal conviction, unless the employer
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demonstrates a direct relationship between the conviction and
the employment sought or an unreasonable risk to property or
public safety. CELC argues that these provisions are backwards
because employers must make decisions to protect the public,
other employees and property. They also state that this bill
would drive up employer costs, encourage lawsuits and discourage
economic activity.
The California Bankers Association is also opposed to this
legislation stating that this bill does not take into
consideration businesses that must adhere to federal law or
regulation and may not hire an individual who has been convicted
of a crime. They contend that federal law (12 U.S.C. 1829)
prohibits a bank from hiring an individual convicted of any
criminal offenses involving dishonesty or a breach of trust
unless the Federal Deposit Insurance Corporation (FDIC) has
granted written consent. They also state that federal law
further imposes a ten-year ban against the FDIC's consent for
persons convicted of most financial crimes. Finally, they
believe this bill will have the affect of forcing a financial
institution to accept an application for employment even if the
institution is prohibited by federal law from hiring the
applicant, giving the applicant a false hope and creating an
unnecessary burden on the employer.
The California Chamber of Commerce and others argue that current
law already provides significant protections to applicants with
criminal conviction records and that under existing federal law
and policy guidelines, employers are not permitted to
automatically deny an applicant on the basis of a past criminal
conviction. They also state that the employer must establish a
"business necessity" to justify use of the conviction record in
an employment decision. Additionally, employers who violate the
"business necessity" standard can be found to have engaged in
unlawful discrimination under federal and state civil rights and
employment laws.
They contend that subjective and undefined new standards and
criteria (such as those proposed by this bill) are not only
confusing and complex for employers to navigate, but each and
every new standard and term leaves employers open for scrutiny
and legal challenge. Moreover, they argue that a private right
of action with one-sided attorneys' fees recovery can encourage
unnecessary and unmeritorious litigation over such disputes.
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PRIOR AND RELATED LEGISLATION:
AB 750 (Bass), Chapter #372, Statutes of 2009, created a
deferred entry of judgment (DEJ) program for first-time,
non-violent drug offenders.
AB 1973 (Swanson) of 2010, would allow a specified tax credit,
under both the Personal Income Tax Law and the Corporation Tax
Law, for each "qualified employee" employed by a taxpayer. This
bill is currently in the Assembly Committee on Revenue and
Taxation.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
City of Compton (Co-Sponsor)
Greater Sacramento Urban League (Co-Sponsor)
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
Life Support Alliance
National Employment Law Project
Service Employees International Union
Stanford Community Law Clinic
Urban League of San Diego County (Co-Sponsor)
Women's Employment Rights Clinic of Golden Gate University
School of Law
Opposition
Acxiom
Associated General Contractors
Association of California Insurance Companies
California Apartment Association
California Bankers Association
California Chamber of Commerce
California Chapter of the American Fence Association
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California Employment Law Council
California Fence Contractors' Association
California Framing Contractors Association
California Retailers Association
Coalition for Sensible Public Records Access
Engineering Contractors' Association
First American Corporation
Flasher/Barricade Association
Marin Builders' Association
National Federation of Independent Business
Reed Elsevier (and its subsidiary, LexisNexis Screening
Solutions Inc.)
Securities Industry and Financial Markets Association
Western Electrical Contractors Association
Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091