BILL ANALYSIS �
AB 1198
Page 1
Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1198 (Jones-Sawyer) - As Amended: January 6, 2014
As Proposed to be Amended
SUBJECT : STATE CONTRACTORS: CRIMINAL CONVICTION HISTORY
KEY ISSUES :
1)SHOULD STATE CONTRACTORS ON PUBLIC WORKS AND TRANSPORTATION
CONTRACTS BE REQUIRED TO FOLLOW THE SAME PROCEDURE AS STATE
AND LOCAL AGENCIES MUST FOLLOW BY POSTPONING QUESTIONS ABOUT
AN 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 REQUIRED?
SYNOPSIS
This bill is substantially similar to the author's AB 870, which
passed the Committee last year but was held in Appropriations.
As proposed to be amended, this measure is narrower than the
prior bill in that it applies only to public works and
transportation contracts.
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. Supporters note
that last year California joined a number of other states and
local governments by adopting AB 218 (Dickinson) which
established the same policy for state and local government as
this bill proposes for state contractors.
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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.
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 on public works and
transportation contracts 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 the state shall not accept a bid from a person
or entity seeking a public works or transportation contract if
that person or entity asks an applicant for employment to
disclose information concerning the conviction history of the
applicant, until the employing person or entity has determined
that the applicant meets the minimum employment qualifications
as stated in any notice issued for the position. This
provision applies to both oral and written disclosures and
disclosures made on an initial employment application.
2)Specifies that the foregoing restriction shall not apply to a
position for which an employer or government agency 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, as that term is
defined in Section 13101 of the Penal Code.
3)Provides that this provision shall not be construed to prevent
the state from accepting a bid from a person or entity that
conducts a conviction history background check after complying
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with the foregoing provisions.
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.
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
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
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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
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
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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, 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 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
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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 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
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
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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.)
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
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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
http://www.urban.org/UploadedPDF/411778_employment_after_
prison.pdf).) 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 : The Southern California Contractors
Association argues in opposition:
AB 1198 is simply unworkable for SCAA members. While the
bill narrowly applies to the State Contract Act and state
contracts for goods and services, the reality is that SCAA
members do not simply work one contract and then close
their businesses. SCCA contractors, at any one time, will
work on many projects with many different owners.
Some of these projects include job sites where workers
require access to highly sensitive and vulnerable areas
such as seaports and airports. These facilities require
government conducted (not employer conducted) criminal
background checks in order to maintain the security of the
facility. Contractors need to know the initial pool of
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employment candidates if the applicant, at the absolute
minimum, can even receive access to the jobsite.
Regrettably, AB 1198 may have the exact OPPOSITE effect the
author desires. If a contractor, after the passage of AB
1198, has employed a long-term construction worker that
declared a criminal history in the pre-employment process,
the mere notice in the pre-application process would
disqualify the contractor from State Contract Act bidding.
If that State Contract Act project requires a government
conducted criminal history screening such as a TSA
background check for the Transportation Worker
Identification Credential (TWIC), the contractor would be
forced to dismiss the long-term construction worker and
refill the position with an AB 1198 eligible worker. In
other words, a long-term worker that freely admitted to a
criminal history would be unemployed all in order for a
contractor to bid on a State Contract Act project.
Contractors need to know the criminal histories of their
workforce because they simply want to ensure access to
certain worksites.
The bill is also opposed by other contractors who state: "While
workers with past criminal histories may not be an issue with
certain types of jobs, construction is not one of them. We
understand that workers with past histories who have "paid their
dues to society" should be given every opportunity to obtain
work; however, construction is very dangerous for myriad reasons
and a contractor needs to know from the outset before hiring an
employee what his past criminal record looks like. The bottom
line, there's nothing "good" about this measure regardless of
its intent. Instead, this appears to be a "full employment act
for attorneys" bill that is looking to ensnare contractors.
Finally, besides potentially endangering himself (or herself),
what about the potential dangers to other workers on the
jobsite?"
Author's Proposed Narrowing and Clarifying Amendments (to be
taken in Appropriations Committee. In order to narrow and
clarify the scope of the bill, the author proposes the following
revision. In light of legislative deadlines, the proposed
amendments would be taken in the Appropriations Committee.
SEC 1.
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Section 10186 is added to the Public Contract Code, to read:
10186. (a) The state shall not accept a bid from a person or
entity seeking a public works or transportation contract if that
person or entity that asks an applicant for employment who will
assist the person or entity in fulfilling the contract with the
state to that discloses to disclose information concerning the
conviction history of the applicant, unless until the employer
employing person or entity has determined that the applicant
meets the minimum employment qualifications as stated in the any
notice issued for the position. 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 an
employer or government 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 the state
from accepting a bid from a person or entity that conducts a
conviction history background check after complying with all of
the provisions of subdivision (a).
SEC. 2. - Delete
REGISTERED SUPPORT / OPPOSITION :
Support
Legal Services for Prisoners With Children (sponsor)
AFSCME
All of Us or None
A New Way of Life Reentry Project
California Coalition for Women Prisoners
Children's Defense Fund -- California
Center on Juvenile and Criminal Justice
Drug Policy Alliance
Greenlining Institute
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
National Employment Law Project
Time for Change Foundation
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Young Women's Development
Opposition
California Fence Contractors' Association
California Chapter of the American Fence Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
Southern California Contractors Association
United Contractors
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334