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,
(more)
AB 1650 (Jones-Sawyer)
Page 2 of ?
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
AB 1650 (Jones-Sawyer)
Page 3 of ?
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
AB 1650 (Jones-Sawyer)
Page 4 of ?
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,
AB 1650 (Jones-Sawyer)
Page 5 of ?
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),
AB 1650 (Jones-Sawyer)
Page 6 of ?
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
AB 1650 (Jones-Sawyer)
Page 7 of ?
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
AB 1650 (Jones-Sawyer)
Page 8 of ?
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)
**************