BILL ANALYSIS �
AB 2535
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2535 (Grove) - As Introduced: February 21, 2014
SUBJECT : EMPLOYMENT APPLICATIONS: CRIMINAL HISTORY
KEY ISSUE : SHOULD STATE AGENCIES CONTRAVENE ANTI-DISCRIMINATION
LAW AND EXISTING STATE PUBLIC POLICY BY REQUIRING ALL JOB
APPLICANTS TO AGENCIES TO DECLARE WHETHER THEY HAVE ANY PAST
MISDEMEANOR OR FELONY CONVICTIONS?
SYNOPSIS
Existing law, pursuant to AB 218 (Dickinson) of 2013, bars state
agencies from asking an applicant for employment to disclose
criminal conviction history until the agency has determined the
applicant meets the minimum employment qualifications. After
that initial stage, a state or local agency may inquire about an
applicant's conviction history. This bill would transform that
flexible permission into regulatory mandate; once an agency
determines that an applicant meets the minimum employment
requirements, the agency would be required to determine whether
an applicant has been convicted of a misdemeanor or felony.
According to the author, taxpayers have a reasonable expectation
that employees hired by the state to carry out the business of
the people are properly suited for their roles, which
necessarily requires that all applicants should be obligated to
disclose any criminal history. Opponents argue that the bill is
unnecessary, as state agencies already have the discretion to
inquire about a job applicant's criminal history, and would
detrimentally weaken AB 218. Moreover, opponents argue that the
bill appears to conflict with existing anti-discrimination laws
prohibiting inquiries from employers about convictions that have
been expunged, sealed, or dismissed. Opponents further contend
that requiring self-disclosure of criminal history information
is a disfavored practice because of the high frequency of
mistakes that are common in answering this type of question.
SUMMARY : Mandates specified hiring practices by state agencies.
Specifically, this bill provides that after a state agency
determines that an applicant for employment meets the minimum
employment requirements, the agency must require the applicant
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to disclose in writing whether or not the applicant has ever
been convicted by any court of a misdemeanor or felony.
EXISTING LAW :
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)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
Rights Act of 1964" (2012)(available at
http://eeoc.gov/laws/guidance/arrest_conviction.cfm).)
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.)
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3)Prohibits any employer from inquiring into or requiring
disclosure of a job applicant's arrests, detentions that did
not result in conviction, or convictions that have been
judicially dismissed or ordered sealed pursuant to law.
(Labor Code section 432.7.)
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. (Government Code section
12926 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : In describing the purpose of the bill, the author
states:
Current law does not require an applicant to a state
position to disclose their criminal history. Current law
also does not require the state to ask for this
information. This can and has resulted in convicted
criminals being hired to work for the state, when if their
criminal history was known, they would not have been hired.
In 2013 the High-Speed Rail Authority hired a woman who was
convicted of embezzling thousands of dollars while
previously working at the Department of Child Support
Services under a different name. She never disclosed her
criminal history, HSRA never inquired, and she was hired.
She was eventually let go for not disclosing her criminal
history, but by law she was not required to do so.
A Substantial Population Of People With Criminal Records May Be
Affected By This Bill. According to 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 at
http://www.nelp.org/page//SCLP/2011/65_
Million_Need_Not_Apply.pdf?nocdn=1 ).) Using the same
methodology outlined in this report, NELP estimates that there
are approximately 7 million Californian adults with criminal
records. According to supporters, research has demonstrated
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that employment is a key factor in reducing recidivism and
ensuring positive public safety outcomes. Among other examples,
a recent study of former prisoners in Ohio, Texas, and Illinois
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 .pdf).)
The Bill's Mandate Appears To Be Contrary To Employment
Discrimination Law. The U.S. Equal Employment Opportunity
Commission (EEOC) is a federal body responsible for enforcing
federal employment laws that make it illegal to discriminate
against a job applicant or an employee. In April 2012 the
Commission published Enforcement Guidance citing to a number of
national studies concluding that there are observable racial
disparities in the criminal justice system. Because criminal
background checks may have a disparate impact on people of
color, the EEOC warned that 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 last year's AB 218
(Dickinson), 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." (EEOC Enforcement Guidance, No. 915.002 (April 25,
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2012).)
This Bill Appears To Be Inconsistent With Existing State Public
Policy Regarding Criminal Records And Employment. Existing
California public policy 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. It 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.)
Contrary to this policy, however, state agencies under this bill
would be automatically required to inquire about the criminal
convictions of job applicants - a practice that studies have
shown may run the serious risk of disadvantaging people of
color. Two prominent studies have 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 Bill Appears To Be Contrary To Existing Law. The bill, as
it is currently written, appears to contradict the terms of an
existing provision of the Labor Code. Labor Code Section 432.7
reads, in relevant part:
No employer, whether a public agency or private individual
or corporation, shall ask an applicant for employment to
disclose, through any written form or verbally, information
concerning . . . a conviction that has been judicially
dismissed or ordered sealed pursuant to law?
This bill by contrast would flatly mandate that state agencies
require job applicants to disclose, in writing, whether or not
the applicant has been convicted of any misdemeanor or a felony.
There are no exceptions made in the bill and, by the most
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reasonable construction of its terms, it would appear to require
disclosure of convictions that are protected from disclosure
under Section 432.7.
ARGUMENTS IN OPPOSITION : Groups in opposition to the bill state
that the bill's mandate is unnecessary, will likely lead to
detrimental unintended consequences, and conflicts with state
law and U.S. Equal Employment Opportunity Commission guidance.
The American Civil Liberties Union of California states:
State and local agency employers already have the
discretion to inquire about a job applicant's criminal
history after the applicant has been deemed qualified. The
bill's mandate is unnecessary.
In addition, the bill's voluntary self-disclosure
requirement may have unintended consequences.
Self-disclosure of conviction history information is a
disfavored practice because it is common for people to
mistakenly report information due to misunderstanding the
outcome of the criminal justice process or being unclear
about the items that are reportable. Self-reported
information that is inaccurate has the appearance of lying
or may reveal information that should not be shared. If a
state agency is seeking criminal history information, it
would be more accurate for the agency to obtain the
information officially.
The Women's Foundation of California states in relevant part:
We actively supported Assembly Member Dickinson's bill (AB
218) last year that removed conviction history from initial
applications for public employment. AB 2535 weakens AB 218
and this concerns us greatly.
AB 2535 would require an applicant to write down their
criminal conviction history. We do not understand why this
is necessary. A state agency already has the capacity and
the right to do a background check on anyone prior to
offering a person a job. By requiring a person to write
down their own criminal conviction history, there is a
great possibility of error. If a person fails to accurately
write down their conviction history, would it be assumed
they were lying and the job offer withdrawn? If the state
agency is seeking criminal history information, it would be
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more accurate for the agency to obtain the information
officially rather than asking for self-disclosure that may
be inadvertently misreported. Self-reported information
that is inaccurate has the appearance of lying or may
reveal information that should not be shared.
Several groups in opposition also state that the bill may
conflict with existing law, citing California Labor Code Section
432.7, which bars employers (public and private) from inquiring
about convictions that have been expunged, sealed, or dismissed.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
American Civil Liberties Union of California
California Public Defenders Association
East Bay Community Law Center
Legal Services for Prisoners with Children
National Employment Law Project
The Women's Foundation of California
Root & Rebound: Reentry Advocates
Analysis Prepared by : Kevin G. Baker and Drew Williams / JUD. /
(916) 319-2334