On October 14, California Governor Jerry Brown signed into law AB 1008, the California Fair Chance Act, a bill we covered upon its passage in the legislature last month. The Act extends a new “ban-the-box” requirement to private as well as public employers, and makes failure to comply an “unlawful employment practice” subject to enforcement under the state’s Fair Employment and Housing Act (FEHA). The new law also broadens FEHA enforcement to cover an employer’s consideration of certain criminal records in the hiring process. When the new law takes effect on January 1, 2018, California will become only the fourth state in the Nation to provide the full protections of its fair employment law to individuals with a criminal record. (New York, Wisconsin and Hawaii are the others.)
The California legislature has approved, and sent to the governor’s desk for signature, a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA). Currently FEHA bars only discrimination that has a racially disparate effect. If signed by the governor as expected, the new law will independently prohibit discrimination based on criminal record by most public and private employers, subject to FEHA’s administrative enforcement scheme. California will become only the fourth state in the country to extend the full protections of its fair employment law to individuals with a criminal record. (The others are New York, Wisconsin, and Hawaii). Read more
A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
A new report examines successful efforts by corporations and government leaders to promote “fair chance” hiring policies for people with criminal histories. Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company reviews the latest research on the effect of a criminal record on employment interviews and on the job performance of workers with such records. The report summary continues:
Several case studies presented here show how fair chance policies can promote loyalty and stability in the labor pool. The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including “banning the box,” or removing criminal history questions from job applications. It explains how hiring officers can effectively carry out this policy, and how to choose background check companies that use best practices in data collection. It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such bias by training administrators involved in hiring processes. The report also outlines compliance requirements with federal equal employment rules as they apply to people with criminal records. And it examines the issue of negligent hiring liability and how to avoid such liability. Education is critical to job readiness, employee retention, and economic mobility. The costs of re-incarceration far exceed the costs of correctional education, and access to training and higher education have been shown to reduce recidivism and increase the likelihood of employment upon release. One case study describes how one college is developing inprison education programs under a federal pilot program and offers a model for making correctional education scalable. The report examines how partnering with workforce training and development programs can help employers succeed with employees who have been in prison. Many workforce development agencies offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report provides recommended actions that businesses can take to create a fair chance for all.
The report was prepared by the Trone Private Sector and Education Advisory Council to the American Civil Liberties Union, with its partner organizations the Legal Action Center, the Lawyers Committee for Civil Rights Under Law, and the National Workrights Institute.
Building upon the successes of 2016, legislatures across the country are off to a strong start this year toward adopting laws that increase fairness in hiring and employment opportunities for the one-in-three U.S. adults with arrest or conviction records.
This progress should come as no surprise—in recent years broad support has emerged from coast to coast for a number of reforms that address the criminal justice system and its disproportionate impact on people of color. Along with critical efforts to increase expungement and sealing, adopt bail and sentencing reforms, and expand voting rights for people with convictions, a powerful movement is also advancing two crucial policies that improve access to employment for people with records: “fair chance hiring” or “ban the box” laws and reforms to occupational licensing requirements.
High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act. If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]
For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.
Second-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.
The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic. The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.
A new nation-wide study of “ban-the-box” policies in public employment finds that they have been generally effective in increasing employment opportunities for people with a criminal record. Significantly, the study finds no evidence that these policies encourage reliance on racial stereotyping where public employment alone is concerned — though the author acknowledged, in an interview with the CCRC, that “the evidence is mixed” when private employment is also considered.
“Ban-the-box” policies, which delay employer inquiries about an applicant’s background until a later stage in the hiring process, have become a popular reform measure at least in part because it can be implemented on a systemic basis. As of January 2017, there were 25 states, DC, and over 150 municipalities that had adopted ban-the-box policies, most of them applicable only to public sector employment. But despite the increase in ban-the-box policies, little research has been done into their effectiveness in improving the employment prospects of justice-involved individuals. Some jurisdictions such as Atlanta, GA and Durham, NC have reported dramatic improvements in the percentage of convicted individuals hired. However, these local outcomes may not reflect the national experience.
Research on the effects of ban-the-box policies by Connecticut College economist Terry-Ann Craigie suggests that they have dramatically improved the public-sector employment prospects of individuals with a criminal record nation-wide. Professor Craigie also found that these salutary effects have generally not been offset by a corresponding increase in racial profiling. Overall, her study (whose results are not yet published) concludes that ban-the-box policies have increased the odds of getting a public sector job for those with a criminal record by close to 40%.
An empirical study of Ohio’s judicial “certificate of qualification for employment” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing. The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk.
The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records. It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records.
The National Employment Law Project (NELP) recently published its November 2016 On the Record: Fair Employment newsletter which provides links and information on a number of interesting developments related to collateral consequences and criminal record mitigation. The full newsletter is available below: