AGENDA Item SC
October
28, 2014
Action
MEMORANDUM
October
21, 2014
TO:
County Council
AJ
J _,
FROM:
Josh Hamlin, Legislative Attornetf'f
Record
SUBJECT:
Action: Bill
36-14,
Human Rights and Civil Liberties-Fair Criminal
Screening Standards
Health and Human Services/Public Safety Joint Committee recommendation (6-0): enact
the Bill with amendments.
Bill
36-14,
Human Rights and Civil Liberties - Fair Criminal Record Screening
Standards, sponsored by Councilmembers Eirich, Branson, Navarro, Council President Rice and
Councilmember Riemer, was introduced on July 15. A public hearing was held on September 9
and a joint Health and Human Services/Public Safety Committee worksession was held on
October 9.
Bill
36-14
would:
(1)
prohibit certain employers from conducting a criminal background check or
otherwise inquiring into an applicant's criminal record before making a
conditional offer of employment;
(2)
require certain employers to provide prior notice to an applicant or employee
when taking an adverse action concerning the applicant's or employee's
employment;
(3)
provide for enforcement by the Office of Human Rights and the Human Rights
Commission;
(4)
authorize the Human Rights Commission to award certain relief; and
(5)
generally regulate the use of criminal records in the hiring process by certain
employers.
Background
The "Ban the Box" Movement
This bill would remove one of the barriers to employment facing persons with criminal
records by prohibiting inquiry by certain prospective employers into job applicants' criminal
history early in the hiring process. Similar policies or laws have been adopted or enacted in
 PDF to HTML - Convert PDF files to HTML files
several state and local jurisdictions
1,
most recently the City of Baltimore in May of this year.2
These laws are known as "ban the box" laws, a reference to the prohibition on the use of a check-
box on job applications indicating whether or not the applicant has a criminal record.
The movement to "ban the box" began with Hawaii in 1998, and there are now 13 States
3
(©33) and more than 60 local jurisdictions (©34-36) that have adopted some form of "ban the
box" legislation. There is substantial variance in the legislation of the different jurisdictions, but
all reflect the view that the question of a job applicant's criminal history should be deferred until
later in the hiring process and not be utilized as an automatic bar
to
employment. The majority
of the laws, including the State of Maryland's law, apply only to public or government
employers, but 18 of the local jurisdictions with "ban the box" policies have gone somewhat
further and apply the restrictions to private contractors doing business with the respective
jurisdictions. Going further still, six states
4
and six local jurisdictions
5
have banned the box for
private employers.
The rationale for banning the box is fairly straightforward: when people with criminal
histories are denied a fair chance at employment, the entire community pays the cost in the form
of diminished public safety, increased government spending on law enforcement and social
services, and reduced government revenue in the form of lost income and sales taxes. According
to the U.S. Department of Justice's Bureau of Justice Statistics (BJS), over 92 million
Americans, roughly one in three adults, have a criminal history record involving an arrest or
conviction.
6
Additionally, according to the BJS, nearly 700,000 people a year nationwide return
to their communities from incarceration, and many are job seekers who are ready and able to
become part of the work force.
7
For these people, a steady job is a critical factor in preventing
recidivism.
8
The consequences of having a criminal record for job-seekers was recently
chronicled in the Wall Street Journal (see ©24-32).
In addition to the general public safety benefit of reduced rates of recidivism, there is a
twofold economic benefit associated with increasing employment of people with criminal
records: decreased expenditures on law enforcement, corrections, and social services, and
increased income and sales tax revenues. Decreasing recidivism would almost certainly result in
While the implementation of"ban the box" policies has primarily been done through legislative action, some local
jurisdictions have administratively adopted policies applicable to hiring by the jurisdiction.
2
The Council of the District of Columbia is poised to enact its own "ban the box" law; Bill 20-642, the "Fair
Criminal Records Screening Amendment Act of2014" passed first reading 12-1 on June 3, 2014, and the Council
may take final action on the bill as early as July 14.
3
In 2013 and 2014 alone, six states enacted new "ban the box" legislation: California (2013), Illinois (2014),
Maryland (2013), Minnesota (2013), Nebraska (2014), New Jersey (2014), and Rhode Island (2013).
4
Illinois, Massachusetts, Minnesota, Hawaii, Rhode Island, and New Jersey.
5
Baltimore (2014), Buffalo (2013), Newark (2013), Philadelphia (2011), San Francisco (2014), and Seattle (2013).
If
Bill 20-642 is enacted in its current form, the District of Columbia would become the seventh local jurisdiction to
ban the box for private employers.
6
Dennis DeBacco and Owen Greenspan,
Survey ofState Criminal History Information Systems,
2008. Bureau of
Justice Statistics (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics 2009).
https://www.ncjrs.gov/pdffiles l/bjs/grants/228661.pdf
7
Paul Guerino, Paige M. Harrison
&
William J. Sabol,
Prisoners in 2010,
NCJ 236096 (Bureau of Justice Statistics
Dec. 2011 ). http://bjs.ojp.usdoj.gov/content/pub/pdf/p 1O.pdf
11
Mark T. Berg and Beth M. Huebner,
Reentry and the Ties that Bind: An Examination ofSocial Ties, Employment,
and Recidivism,
Justice Quarterly (28), 2011, pp.382-4 IO.
http://www.pacific-gateway.org/reentry,%20employment%20and%20recidivism.pdf
1
2
 PDF to HTML - Convert PDF files to HTML files
a reduced overall crime rate, with a corresponding reduction in law enforcement and corrections
costs. Raising the employment rate of persons with criminal histories would also increase the
likelihood that they would fulfill their social and legal financial obligations, such as child
support, victim restitution, and court costs.
9
Also, economists have estimated that the lower
overall employment rates of people with prison records or felOny convictions cost the U.S.
economy about 0.4 to 0.5 percent of GDP in 2008, or between $57 and $65 billion.
10
Part of this
cost is borne by governments in the form of lost income taxes, and lower sales tax revenue
resulting from reduced economic activity.
Bill 36-14
Bill 36-14 would prohibit an employer in the County from inquiring into, or otherwise
actively obtaining
11
the criminal history of an applicant for a job in the County before making a
conditional offer of employment.
It
would also require the employer, in making an employment
decision about an applicant or employee based on the applicant's or employee's arrest or
conviction record, to conduct an individualized assessment, considering:
• only specific offenses that may demonstrate unfitness to perform the duties of the
position sought by the applicant or held by the employee;
• the time elapsed since the specific offenses; and
• any evidence of inaccuracy in the record.
12
The bill would require an employer deciding to base an adverse action
13
on an applicant's arrest
or conviction record to:
• provide the applicant or employee with a copy of any criminal record report; and
• notify the applicant or employee of the prospective adverse action and the items that are
the basis for the prospective adverse action.
If,
within seven days of receiving the required notice of prospective adverse action, the applicant
or employee gives the employer notice of evidence of the inaccuracy of any item or items on
which the prospective adverse action is based, the bill would require the employer
to:
• delay the adverse action for a reasonable period after receiving the information; and
• reconsider the prospective adverse action in light of the information.
Bruce Western and Becky Pettit,
Collateral Costs: Incarceration's Effect on Economic Mobility,
The Pew
Charitable Trusts, 20 I 0.
http://www.pewtrusts.org/~/media/I
mported-and-Legacy/uploadedfiles/pcs assets/20 I O/CollateralCosts I pdf.pdf
10
John Schmitt and Kris Warner,
Ex-offenders and the Labor Market,
Center for Economic and Policy Research,
20 I 0. http://www.cepr.net/documents/publications/ex-offenders-20 I0- I I .pdf
11
This prohibition would "ban the box" on the application itself, prohibit the employer from conducting a
background check, and prohibit the employer from inquiring of the applicant or any other person whether the
applicant has an arrest record or conviction record.
1
This requirement is consistent with enforcement guidance issued in 20 l 2
by
the United States Equal Employment
Opportunity Commission (EEOC) regarding employers' use of criminal background information in making
employment-related decisions. http://www.eeoc.gov/laws/guidance/upload/arrest conviction.pdf
13
"Adverse action" is defined in the bill as follows: to fail or refuse to hire,
to
discharge or not promote a person, or
to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or
otherwise adversely affect the person's employment status.
9
3
 PDF to HTML - Convert PDF files to HTML files
Finally, the bill would require an employer to give an applicant or employee written notice of a
final adverse action within seven days of taking the action.
Bill 36-14 exempts from its provisions inquiries or adverse actions expressly authorized
by an applicable federal, State, or County law or regulation, as well as the County Department of
Police, the County Department of Corrections and Rehabilitation, and employers providing
programs, services, or direct care to minors or vulnerable adults.
The County Office of Human Rights would be responsible for enforcement of the law.
An
applicant or employee would be able to file a complaint with the Office of Human Rights and
obtain an adjudicatory hearing before the Commission on Human Rights.
Public Hearing
There were 15 speakers at the September 9 public hearing on Bill 36-14. Director of
Human Resources Joseph Adler (©37-38), Director of Correction and Rehabilitation Arthur
Wallenstein (©39), and Director of the Office of Human Rights James Stowe (©40) represented
the Executive and testified in support of the Bill. Matthew
J.
Green, Jr., Chair of the Community
Action Board ©41-43), Anita Powell of the NAACP, Caryn York of the Job Opportunities Task
Force, Robert Velthuis (©44), Robert Barkin of Jews United for Justice, Sara Love of the ACLU
(©45), and Je:ffi:ey Thames of Hope Restored, Inc. all offered support for the Bill. Supporters
generally expressed belief that the Bill would help former offenders become productive members
of society and decrease recidivism. Caryn York and Sara Love said that it is important to require
a conditional offer before an employer makes an inquiry because, if allowed at the interview, a
question about an applicant's criminal history could be the first and last question of the
interview.
Erin Allen of the Greater Bethesda-Chevy Chase Chamber of Commerce (©46-4 7),
Marilyn Balcombe of the Gaithersburg-Germantown Chamber of Commerce (©48-49), Elise
Ambrose of Elite Personnel (©50-52), William Moore of the International House of Pancakes
(©53-54), and Mark Scott all spoke in opposition to the Bill. A letter in opposition to the Bill
from the Montgomery County Chamber of Commerce (©55-61) was also received at the public
hearing. Opposition to the Bill focused on the burden it placed on employers, while generally
supporting the premise that applicants should not be automatically disqualified from employment
because of a criminal record. Significantly, several of the Bill's opponents expressed support
for, or at least tolerance of, the removal of the criminal history question on job applications, with
employer inquiry permitted at an interview.
On September 29, the Council received a joint letter from several County Chambers of
Commerce
14
and the Apartment and Office Building Association of Metropolitan Washington
(©62-64). The letter signaled a constructive approach, and identified four areas of concern for
the business community: "timing, notification, protection of employers, and penalties." Rather
than opposing the Bill, the signatories requested changes to the Bill addressing these areas of
concern. Specifically, they requested:
(1)
that inquiry into an applicant's criminal background be
allowed during the interview process; (2) that an employer
be
required to provide an applicant's
The Gaithersburg-Gennantown, Greater Bethesda-Chevy Chase, Greater Silver Spring, Wheaton Kensington, and
Montgomery County Chambers of Commerce, along with the Apartment and Office Building Association, were
signatories.
4
14
 PDF to HTML - Convert PDF files to HTML files
criminal background infonnation only when requested by the applicant; (3) that employer
liability be more clearly defined; and (4) that penalties for violations be limited to fmes payable
to the County.
October 9 HHS/PS Joint Committee Worksession
In addition to the Committee members, Councilmember Branson attended the
worksession. The Committee discussed the Bill and made a number of changes. The Committee
approved the Bill (6-0) with the following amendments:
1.
2.
3.
4.
change the point where an inquiry is permissible to "the conclusion of a first
interview";
delete all damage awards to complainants, leaving a civil penalty of up to $1,000;
delete the requirement that an employer conduct an "individualized assessment" when
considering an applicant's criminal history;
add language to the definition of"Inquiry or Inquire" to exclude from the definition
follow-up questions about an applicant's criminal history voluntarily disclosed by the
applicant and questions about the applicant's employment history shown on the
applicant's resume;
add "a current employee who requests to be considered for a promotion" to the
definition of "applicant," and delete all references to employee other than in the
definitions;
add "an offer of a promotion" to the definition of "conditional offer," delete the
definition of"adverse action," and change the trigger for the notice requirements in
Section 27-73 to if an employer intends to "rescind a conditional offer" based on an
item in the applicant's criminal history;
delete the requirement that an employer reconsider rescinding a conditional offer;
add language to provide that, except for the requirements when rescinding a
conditional offer, nothing in the Article requires an employer to give notice to an
applicant about any action of the employer or the basis for any action;
change the threshold number of employees for an employer to be covered under the
Bill from 10 to 15;
add the County Fire and Rescue Service, and an employer hiring for a position that
requires a federal government security clearance to the exemptions; and
insert the word "improper" on line 102 at the suggestion of the County Attorney.
5.
6.
7.
8.
9.
10.
11.
Issues/Committee Recommendations
1.
At what point should inquiry into criminal history be allowed?
Much of the testimony at the public hearing concerned not whether banning the box was
appropriate, but rather at what point an employer should be allowed to inquire into the criminal
history of an applicant.. There are three models used in existing ban the box laws; under these
models, an employer may inquire into an applicant's criminal history at the following points in
time (with possible pros and cons of each approach listed):
1)
Mter a conditional offer is made
(Bill 36-14
as
drafted, D.C., Baltimore,
Newark).
Pros:
5
 PDF to HTML - Convert PDF files to HTML files
Employer is very invested in applicant at the time of inquiry;
Discomfort with rescinding an offer vs. not calling back is disincentive to
act without legitimate basis.
Cons:
• Employer may incur additional costs as a result of extra length of time to
fill positions;
• Possible physical danger to employer having to legitimately rescind offer
from violent criminal;
• Employer may lose qualified applicants under consideration if job is
offered to someone else and later rescinded;
• Applicants may follow a longer hiring process, only to have conditional
offer rescinded, wasting their time and possibly missing other job
opportunities.
2)
After first interview
(Philadelphia, San Francisco).
Pros:
• Employer is invested in an applicant on the basis of more than just a
resume/application - applicant is likely close to getting an offer before any
inquiry/background check is made;
• Employer is not put in the position of legitimately rescinding
an
offer to
an applicant whose criminal history disqualifies the applicant from that
job;
• Should have minimal impact on length of hiring process for employers
who conduct interviews.
Cons:
• Applicant may not have opportunity to explain any criminal history may
simply not get a call back.
At first interview
(Buffalo, Seattle).
Pros:
• Employer has at least given employee initial consideration without regard
to criminal history;
• Applicant would have an opportunity to explain any criminal history at
interview;
• Should have no impact on length of hiring process for employers who
conduct interviews.
Cons:
• First and last question at interview could be "Do you have a criminal
record?"
3)
6
 PDF to HTML - Convert PDF files to HTML files
Committee recommendation (5-1, Council Vice President Leventhal opposed):
Amend the
Bill to allow an inquiry to be made at "the conclusion of a first interview." See lines 152-160 at
©7; lines 170-171 at ©8.
2.
Should the Bill provide for damages awarded
to
complainants or just fines payable
to the County?
Bill 36-14, as drafted, permits the Commission on Human Rights (the Commission) to
award damages to the complainant in the form of: (1) financial losses resulting from a violation;
(2) equitable relief to prevent the violation; and (3) consequential damages, such as lost wages
from a violation.
Concerns were expressed in correspondence and at the public hearing that allowing the
award of damages to a complainant will lead to frivolous complaints by applicants who did not
get jobs, increasing the costs to employers of defending these actions, and subjecting employers
to unpredictable damage awards. The counterpoint to this concern is that if the only penalty for a
violation is a fine payable to the County, there will not be an incentive for a victim of a violation
to file a complaint (the County is not going to force the employer to hire anyone).
Other local jurisdictions' treatment of this issue is as follows:
Baltimore
provides for damages (back pay, reinstatement, compensatory damages)
which may be awarded to a complainant, as well as criminal penalties of up to $500
fine or imprisonment for up to 90 days.
D.C.
has a graduated scale of fines based on the size of the employer, of which half is
awarded to the complainant.
Buffalo
provides a private cause of action for injunctive relief and damages for
aggrieved persons, and provides for the award of attorney's fees to the prevailing
party; also, any person, whether aggrieved or not may submit a complaint to the
Commission on Citizen's Rights and Community Relations, and the imposition of
fines up to $1000.
Newark
provides for fines of up to $1,000, but no damages for complainants.
Philadelphia
provides for fines of up to $2,000, but no damages for complainants.
San Francisco
provides for the award of "appropriate relief' (presumably to the
applicant) plus an administrative monetary penalty.
It
also provides that the City may
pursue a civil action against an employer, seeking "appropriate relief' including, but
not limited to:
• reinstatement;
• back pay;
• payment of benefits or pay unlawfully withheld;
• payment of an additional sum as liquidated damages in the amount of $50.00
to each employee, applicant or other person whose rights were violated for
each day such violation continued or was permitted to continue;
7
 PDF to HTML - Convert PDF files to HTML files
• appropriate injunctive relief; and
• reasonable attorney's fees and costs.
• Seattle
provides for fines of up to $1,000, but no damages for complainants.
Committee recommendation
(6-0): Delete all damage awards to complainants; retain civil
penalty of up to $1,000. See lines 39, 46, 49, 52-53, at ©3; line 60 at ©4.
3.
Over what areas does the Commission have discretion in enforcement of the law?
Bill 36-14, as drafted, has essentially three principal components:
1)
2)
prohibiting the inquiry into an applicant's criminal history prior to the extension
of a conditional offer;
requiring notice of an adverse action based on an item in an applicant's or
employee's criminal history with reasonable time for the applicant/employee to
demonstrate an error in the record; and
requiring an employer to conduct an individualized assessment, considering only
specific offenses that may demonstrate unfitness to perform the duties of the
position sought by the applicant or held by the employee, the time elapsed since
the specific offenses, and any evidence of inaccuracy in the record.
3)
Concern was expressed at the public hearing that the third component creates the
possibility that the Commission could substitute its judgment for that of the employer in the
decision whether or not to hire an applicant. This is not the intent of the sponsors, nor is it their
intent to create a cause of action by which applicants or employees could challenge employers'
decisions. An amendment may be necessary to avoid any possibility that the Commission might
second-guess whether the specific offenses demonstrate unfitness for the position, whether the
time elapsed since the offenses is material to the decision, or generally question the ultimate
decision of the employer.
Committee recommendation
(6-0): Delete the requirement that an employer conduct an
"individualized assessment" when considering an applicant's criminal history. See lines 93-98 at
©5; linesl88-194 at ©9.
4.
Should the Bill retain the notice requirements as drafted?
Bill 36-14 includes a requirement that an employer provide notice and a copy of any
criminal background report to an applicant or employee before taking an adverse action
15
based
on an item or items in the applicant's or employee's arrest record or conviction record. See lines
186-222 at ©8-10. The employer must identify the item or items in the background report that
are the basis for the prospective adverse action. The Bill :further requires an employer to wait
seven days before taking the adverse action to allow the applicant or employee time to provide
evidence of inaccuracy in the record.
If
such evidence is produced
within
that time, the Bill
would require the employer to delay taking the adverse action for a reasonable amount of time,
"Adverse action" is defined in the Bill to mean "to
fail
or refuse to hire, to discharge or not promote a person, or
to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or
otherwise adversely affect the person's employment status."
15
8
 PDF to HTML - Convert PDF files to HTML files
and reconsider the adverse action in light of the evidence. Finally, the Bill requires that, at the
end of this process, an employer give an applicant or employee written notice of a final adverse
action within seven days of taking the action.
It should first be stated that this provision requires a process, but does not impose any
requirements on the actual decision-making of the employer. The intent of the process is to
ensure that an applicant or employee has an opportunity to correct an error in the applicant's or
employee's criminal background report before being punished for it in an employment context.
Errors in criminal background are the exception, but they do happen (©65-70). A Google search
including the terms "mistaken identity" and "background check"
turn
up dozens of news stories
about such instances costing prospective employees jobs.
·
The notice requirements in the Bill are modeled on the adverse action notice
requirements of the federal Fair Credit Reporting Act (FCRA),
16
which requires employers to:
(1) give advance notice prior to rejecting a job application, reassigning or terminating an
employee, denying a promotion, or taking any other adverse employment action based
OI].
information in a consumer report; and (2) give notice of a final adverse action orally, in writing,
or by electronic means (©71-73). In fact, in many, if not most, of the instances covered by Bill
36-14, the employer is already required to give notice under the FCRA.
17
See ©74-75.
However, the FCRA does not say how long an employer must wait between the time it provides
pre-adverse action notice and when it rejects the applicant or otherwise takes adverse
employment action. Bill 36-14 differs from the FCRA in that it specifies a seven day waiting
period, requires reconsideration prior to a final action, and requires that the notice of final action
be in writing.
In other local jurisdictions with ban-the-box laws, Washington, D.C., Newark, NJ, San
Francisco and Seattle all have notice requirements pertaining to adverse actions. Washington,
D.C. does not require advance notice, but instead provides that an applicant may request a copy
of any criminal record report and a "statement of denial"
18
within 30 days of the adverse action.
Newark's law is similar to the District's, except that the burden is on the employer to provide the
notice without a request from the applicant. San Francisco's requirements are virtually identical
to those in Bill 36-14, including the seven day waiting period and reconsideration in light of
inaccuracy in the record.
19
Seattle requires advance notice and provision of the record, but only
imposes a two day waiting period on an employer, and does not mandate reconsideration.
Both the Gaithersburg-Germantown Chamber of Commerce (GGCC) and the
Montgomery County Chamber of Commerce (MCCC) requested changes to the Bill's notice
requirements. The GGCC requested that the waiting period prior to taking an adverse action be
reduced to three days (See ©48-49), while the MCCC requested that the advance notification be
accompanied by a copy of the criminal record report relied upon, but not require "customized
http://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf
The FCRA applies when an employer uses a "consumer reporting agency," which includes a company providing a
criminal background check, but would not apply to a background check performed internally by the employer.
18
A statement of denial under the D.C. law must: (1) articulate a legitimate business reason for the decision; (2)
specifically demonstrate consideration of each of a set of factors included in the law; and (3) advises the applicant of
the opportunity to file an administrative complaint challenging the decision.
19
San Francisco's law actually goes further than Bill 36-14 in this regard, in that
it
allows an applicant or employee
to present evidence ofrehabilitation or other mitigating factors in addition to evidence of inaccuracy.
17
16
9
 PDF to HTML - Convert PDF files to HTML files
communications" (See ©55-56). The joint letter from several Chambers of Commerce and
AOBA includes a request that the Bill be amended to "read as the newly established law in the
District of Columbia does with regard to notification," shifting the burden to an applicant or
employee to affirmatively request a copy to the criminal background history (See ©62-64).
Committee recommendation (6-0):
1. Add "an offer of a promotion" to the definition of "conditional offer," add "a current
employee who requests to
be
considered for a promotion" to the definition of "applicant,"
and delete the definition of"adverse action." See lines 119-120, 113-114, and 108-111 at
©6.
2. Change the trigger for the notice requirements in Section 27-73 to
if
an employer intends
to "rescind a conditional offer" based on an item in the applicant's criminal history. See
lines 186-187 at ©10 and 195-218 at ©9-10.
3. Delete all to employee in the bill other than in the definitions. See lines 195-218 at ©9-
10.
4. Delete the requirement that an employer reconsider rescinding a conditional offer. See
lines 211-213 at ©9.
5. Add language to provide that, except for the requirements when rescinding a conditional
offer, nothing in the Article requires an employer to give notice to an applicant about any
action of the employer or the basis for any action. See lines 219-222 at ©l 0.
5.
Can employers ask "follow-up" questions after the existence of a criminal record is
voluntarily disclosed by an applicant?
There was discussion at the public hearing about whether an employer could violate the
law by asking follow-up questions in response to criminal history information voluntarily
disclosed by an applicant. Staff does not believe that such questions would violate the terms of
the Bill as drafted, but staff recommends expressly stating that such questions, as well as
questions about an applicant's employment history as shown on the application or the applicant's
resume, are permissible.
Committee recommendation (6-0): add language to the definition of "Inquiry or Inquire" to
exclude from the definition follow-up questions about an applicant's criminal history
voluntarily disclosed by the applicant and questions about the applicant's employment history
shown on the applicant's resume. See lines 146-151 at ©7.
6.
Does the Bill provide dual channels of recourse for applicants for County
employment/County employees?
The memorandum from the County Attorney's office correctly points out that County
employees and applicants for County jobs would already have the right to challenge an adverse
action, as defined in the Bill, through the Merit System Protection Board (MSPB).
If
the Bill is
amended to limit the scope of the Commission's review to the procedural requirements of the
Bill,
i.e.,
the timing of an inquiry and the notice requirements, a complaint under the provisions
of the Bill would not be a challenge to an adverse action subject to the jurisdiction of the MSPB.
This would eliminate the duplicate and parallel channels of review.
If
the Bill is not so amended,
the Bill could be amended to provide that County employees and applicants for County jobs
must pursue complaints before either the MSPB or the Commission.
10
 PDF to HTML - Convert PDF files to HTML files
7.
Are the exemptions
in
the Bill adequate as drafted?
There has been some concern expressed over whether the exemptions in Bill 36-14 are
adequate. The memorandum from the County Attorney's office asked "what about the Sheriff or
Fire and Rescue Service?" The Office of the Sheriff is a State constitutional office, and
employees are State employees (the State's ban-the-box bill pertaining to public employment
includes an express exemption for "a position in the office of the Sheriff for any county." Fire
and Rescue Service could
be
added in the same subsection
as
Police and Corrections if the
Committee wishes to do so.
There was testimony at the public hearing that the bill as drafted would pose a problem
for temporary agencies, who often don't assign employees to jobs until immediately prior to the
work being done. Staff is not clear on how this creates a problem,
as
presumably the agency
screens applicants through an application and interview process before sending them to job sites,
and could do so following the procedures set forth in the Bill.
If
the concern is that there is no
job offer until a specific assignment is made, allowing inquiry during the interview process
would resolve the issue.
The question has been posed whether positions requiring security clearances would be
exempt from the provisions of the bill. Security clearances for many positions are required by
regulation and would be exempt under the terms of the Bill
as
drafted. This exemption is similar
or identical to provisions in the laws of other jurisdictions, and
to
expand it to allow a private
employer to exercise discretion in determining whether a security clearance is necessary for a
position would create a potentially large loophole. Also, if the Bill is amended to allow an
inquiry at the conclusion of a first interview, such concern would be mitigated somewhat,
as
candidates ineligible for a position by virtue of their criminal background could still be
eliminated fairly early in the hiring process.
Committee recommendation (6-0): Add the County Fire and Rescue Service, and an employer
hiring for a position that requires a federal government security clearance, to the exemptions.
See line 228 and lines 233-235 at ©10.
8.
Should the threshold for being a covered "employer" under the Bill be employing
10
persons?
As drafted, Bill 36-14 defines an employer
as
employing 10 or more persons in the
County. The threshold number of employees required in order to be subject to other local
jurisdictions' ban the box laws applying to private sector employers range from 1 to 20, as
follows:
Baltimore:
Buffalo:
District of Columbia:
Newark:
Philadelphia:
San Francisco:
Seattle:
10
15
10
5
10
20
1
11
 PDF to HTML - Convert PDF files to HTML files
The decision of the size at which employers should be subject to the law is a policy decision.
There has been no consensus, though 10 to 15 employees seem to occupy the middle ground.
For a local comparison, an employer must employ two or more employees to be subject to the
County's minimum wage law.
Committee recommendation (5-1, Councilmember Eirich opposed):
Change the threshold
number of employees for an employer to
be
covered under the Bill from 10 to 15. See line 137
at©7.
9.
Bow would
Bill
36-14 be enforced?
Bill 36-14 would authorize a person to file a complaint alleging violation of its
requirements with the Office of Human Rights. The complaint would be handled in the same
manner as a complaint alleging a violation of the County employment discrimination and
minimum wage laws.
A question may arise as to how a complaint could be enforced against an employer who
hires employees to work in multiple jurisdictions, including occasional work in the County.
Because the County is prohibited from enacting general laws,
i.e.,
laws applicable to two or more
counties, it is important that this law be drafted in such a way that its application is limited to
activities within the County. With that in mind, it should first be noted that the law would only
be enforceable as to violations that take place within the County's borders. Further, staff
recommended a clarifying amendment to provide that employers subject to the law are hiring
employees to work
primarily
in the County.
Office of the County Attorney Division Chief Edward Lattner advised the Committee of
his concern that adding the word "primarily" to the definition of "applicant," could run afoul of
the Maryland Court of Appeals' holding in
Holiday Universal, Inc., et al. v. Montgomery County
(2003).
Committee recommendation:
Do not amend the definition of"applicant."
10.
County Attorney Amendments.
The memorandum from the County Attorney contained four suggested technical
amendments:
1)
2)
3)
4)
On line 95, insert the word "improper"
On lines 161-162, delete "making an employment decision based" and replace
with "basing an adverse action"
On line 165 delete "offenses" and replace with "arrests or
convictions"
On line 167 delete "offenses" and replace with "arrests or
convictions"
Committee recommendation
(6-0): Insert the word "improper" between the words "removing"
and "barriers". See line 102 at ©5. The other suggested amendments from the County Attorney
are moot due to other Committee amendments to the Bill.
12
 PDF to HTML - Convert PDF files to HTML files
Issues for Consideration by the Full Council
1.
Should the Bill be amended to remove the requirement that an employer delay
rescinding a conditional offer?
The Bill requires an employer to "delay rescinding the conditional offer for a reasonable
amount of time after receiving the information" about inaccuracy of an applicant's arrest record
or conviction record. See lines 210-21 l at ©9. The Committee deleted the requirement that an
employer reconsider rescinding a conditional offer in light of such information, and without this
requirement, the delay appears to serve no real purpose.
If
the Council wishes to retain the
requirement that an applicant be given seven days to give an employer notice of an inaccuracy in
the applicant's arrest record or conviction record, but not further delay an employer from filling a
position it could do so by adding a new paragraph (3) after line 213 of the bill providing for the
seven day period to provide notice of an inaccuracy, and delete existing subsection (b) which
requires the delay for a reasonable amount of time. This change is shown on the Staff
Amendment at ©76-77.
2.
Should the Bill provide an exception to the seven day period for an applicant to
provide notice of an inaccuracy in the record?
The Committee discussed the impediment that the seven day delay would present in cases
where there is a need for an employer to fill a position immediately. The Committee directed
staff to draft language to amend the Bill to provide for an exception in such circumstances.
If
the
Council makes the Staff Amendment in Issue 1 above, this exception could be created by adding
language at the beginning of the new paragraph (3) added by the Staff Amendment so that it
would read as follows:
ill
unless the employer has a verifiable immediate need to fill the position for
which the conditional offer has been made. delay rescinding the
conditional offer for 7 days to permit the applicant to give the employer
notice of inaccuracy of an item or items on which the intention to rescind
the conditional offer is based.
3.
Technical amendments:
For internal consistency, staff recommends inserting the words "and requirements on
lines 227 and 230 at ©10 as follows:
®
.{£}
The prohibitions
of this Article do not
rumIY
to the County
Police Department. the County Fire and Rescue Service. or the County
Department of Corrections and Rehabilitation .
The prohibitions and requirements of this Article do not
rumIY
to an employer that
provides programs, services, or direct care to minors or vulnerable adults.
4.
Corrective amendment:
13
 PDF to HTML - Convert PDF files to HTML files
Staff has been advised that Bill 27-13 - Human Rights and Civil Liberties - County
Minimum Wage - Dollar Amount included a heading for a new section that was inadvertently
not underlined in the enacted Bill. As such, Section 27-70 currently has no heading.
Staff recommendation:
Add the following after line 70 at ©4:
27-70
Enforcement.
*
*
*
This packet contains:
Bill 36-14
Legislative Request Report
Fiscal and Economic Impact statement
County Attorney Memorandum
Wall Street Journal
Article
Chart comparing state laws
Chart comparing local laws
Testimony
Joseph Adler
Arthur Wallenstein
James Stowe
Matthew J. Green, Jr.
Robert Velthuis
ACLU
Erin Allen
Marilyn Balcombe
Elise M. Ambrose
William Moore
Letter from Montgomery County Chamber of Commerce
Joint letter from Chambers of Commerce and AOBA
PBS Newshour Transcript
FTC - Using Consumer Reports: What Employers Need to Know
Criminal History Checks and the FCRA
Staff Amendment 1
Circle#
1
11
12
19
24
33
34
37
39
40
41
44
45
46
48
50
53
55
62
65
71
74
76
F:\LA W\BILLS\1436 Fair Criminal Record Screening Standards\Action Memo.Doc
14
 PDF to HTML - Convert PDF files to HTML files
Bill No.
36-14
Concerning: Human Rights and Civil
Liberties - Fair Criminal Record
Screening Standards
Revised: October 9.
2014
Draft No.
__§
Introduced:
July 15,
2014
Expires:
January 15.
2016
Enacted: - - - - - - - - - -
Executive: - - - - - - - - -
Effective:_~~~~-~-~
Sunset Date: '"""N"""o=n=e_ _ _ _ __
Ch. _ _,
Laws
of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Elrich, Branson and Navarro, Council President Rice, and Councilmember
Riemer
AN ACT
to:
(1)
prohibit certain employers from conducting a criminal background check or
otherwise inquiring into an applicant's criminal record before [[making a conditional
offer of employment]] the conclusion of a first interview;
require certain employers to provide prior notice to an applicant [[or employee]]
when [[taking an adverse action concerning the applicant's or employee's
employment]] rescinding a conditional offer;
provide for enforcement by the Office of Human Rights and the Human Rights
Commission; and
[[authorize the Human Rights Commission to award certain relief; and
generally regulate the use of criminal records in the hiring process by certain
employers.
(2)
(3)
(4)
(5)]]
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8
By adding
Montgomery County Code
Chapter 27, Hurµan Rights and Civil Liberties
Article XII, Fair Criminal Record Screening Standards
Boldface
..
.. ..
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deleted.from existing law or the bill by amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
36-14
1
Sec.1.
Sections 27-7 and 27-8 are amended and Chapter 27, Article
2
XII is added as follows:
27-7.
(a)
3
4
Administration and enforcement.
Filing complaints.
Any person subjected to a discriminatory act or
5
practice in violation of this Article
2
or any group or person seeking to
enforce this Article or Articles X.i [or] XI, or XII, may file with the
Director a written complaint, sworn to or affirmed under the penalties of
perjury, that must state:
(1)
(2)
the particulars of the alleged violation;
the name and address of the person alleged to have committed the
violation; and
(3)
any other information required by law or regulation.
6
7
8
9
10
11
12
13
14
15
*
(
f)
*
*
Initial determination, dismissal before hearing.
( 1)
The Director must determine, based on the investigation, whether
reasonable grounds exist to believe that a violation of this Article
or Articles X.i [or] XI, or XII, occurred and promptly send the
determination to the complainant and the respondent.
16
17
18
19
(2)
If
the Director determines that there are no reasonable grounds to
20
21
22
believe a violation occurred, and the complainant appeals the
determination to the Commission within 30 days after . the
Director sends the determination to the complainant, the Director
promptly must certify the complaint to the Commission. The
Commission must appoint a case review board to consider the
appeal. The board may hear oral argument and must:
(A)
(B)
dismiss the complaint without a hearing;
order the Director to investigate further; or
23
24
25
26
27
@
F:\LAW\BILLS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL No. 36-14
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
(C)
set the matter for a hearing by a hearing examiner or the
board itself, and consider and decide the complaint in the
same manner as if the Director had found reasonable
grounds to believe that a violation of this Article or
Articles X,_ [or] XI, or XII, occurred.
(3)
If
the Director determines that there are reasonable grounds to
believe a violation occurred, the Director must attempt to
conciliate the matter under subsection (g).
*
27-8.
(a)
Penalties and relief.
*
*
Damages and other relieffor complainant.
After finding a violation
of this Article or Articles X[[,_]] [or] or XI,
[[Qr
XII,]] the case review
board may order the payment of damages (other than punitive
damages) and any other relief that the law and the facts warrant, such
as:
( 1) compensation for:
*
(F)
*
*
financial losses resulting from the discriminatory act or a
violation of [Article] [[Articles]] Article X [[or XII]]; and
*
(2)
*
*
equitable relief to prevent the discrimination or the violation of
Articles X[[,_]] [or] or XI, [[or XII,]] and otherwise effectuate the
purposes of
this
Chapter;
(3)
consequential damages, such as lost wages from employment
discrimination or a violation of [Article] [[Articles]] Article X
[[Qr
XII]] or higher housing costs from housing discrimination,
for up to 2 years after the violation, not exceeding the actual
(j)
F:\LAW\BILLS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
55
56
57
58
59
difference in expenses or benefits that the complainant realized
while seeking to mitigate the consequences of the violation (such
as income from alternate employment or unemployment
compensation following employment discrimination); and
(4)
any other relief that furthers the purposes of this Article or
Articles X[L]] [or] or XI, [[or XII,]] or is necessary to eliminate
the effects of any discrimination prohibited under this Article.
60
61
62
63
(b)
Civil penalties.
(1)
In
addition to any damages awarded to any person under
64
65
this [[article]] Article, the case review board may require any person,
except the County, who has violated this [[article]] Article or Article
XII to pay to the County as a civil penalty:
66
67
68
69
70
71
*
(E)
*
*
for each violation of Article XII,
.YJ2
to $1,000;
for any other violation, $500.
ru
ARTICLE XII.
*
27-71.
*
*
Fair Criminal Record Screening Standards.
72
73
Findings and Purpose; Definitions.
Findings.
.W
74
75
ill
The U.S. Department of Justice's Bureau of Justice Statistics
(BJS) estimates that over 92 million Americans, roughly one in
three adults, have
E:
criminal history record involving an arrest or
conviction.
76
77
78
79
(2)
According to the BJS, nearly 700,000 people
E:
year return to their
communities from incarceration, and many are job seekers who
are ready and able to become part of the work force.
80
F:\LAW\BILLS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
81
ill
Studies indicate that job applicants are often precluded from even
getting an interview when applications require disclosure of
whether the applicant has
~
criminal record.
82
83
84
ill
Lack of employment is
~
significant cause of recidivism, which
85
86
87
88
89
threatens public safety and disrupts the financial and general
stability of affected families and communities.
ill
Increased government expenditures on law enforcement and
social programs, necessitated
Qy
the inability of people with
criminal records to find gainful employment, are an impediment
to the County reaching its potential for economic growth.
90
91
92
93
®
ill
Increasing employment of people with criminal records improves
public safety and reduces the financial burden on government.
In 2012. the United States Equal Employment Oqportunity
Commission (EEOC) issued enforcement guidance regarding
employers' use of criminal background information in making
employment-related decisions. recommending that the use of
such information 1s job related and consistent with business
necessity.
94
95
96
97
98
99
.(hl
Purpose.
100
101
102
103
It is the purpose of this Article to:
ill
assist in the successful reintegration into the workforce of people
with criminal records
Qy
removing improper barriers to
employment; and
104
105
106
ru
enhance the health and safety of the community
Qy
assisting
people with criminal records to lawfully provide for themselves
and their families.
107
{fl
Definitions.
As used in this Article:
&
F:\LAW\BILLS\1436 Fair Criminal Reoord Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
108
109
[[Adverse action
means to
fail
or refuse to hire, to discharge or not
promote
!!
person, or to limit, segregate, or classify employees in any
way which would deprive
~
110
111
person of employment opportunities or
otherwise adversely affect the person's employment status.]]
112
113
114
115
Applicant
means
!!
person who is considered or who requests to be
considered for employment in the County
.Qy
an employer or a current
employee who requests to be considered for a promotion.
Arrest record
means information indicating that
~
person has been
116
117
118
119
apprehended, detained, taken into custody, held for investigation, or
otherwise restrained
.Qy
~
law enforcement agency or military authority
due to an accusation or suspicion that the person committed
~
crime.
Conditional offer
means an offer of employment or an offer of a
promotion that is conditioned solely on:
120
121
122
123
124
125
126
127
128
129
130
131
ill
the results of the employer's later inquiry into the
applicant's criminal record; or
ill
another contingency expressly communicated to the
applicant at the time of the offer.
Conviction record
means information regarding
~
sentence arising from
!!
verdict or plea of guilty or nolo contendre, including
!!
sentence of
incarceration,
~
fine,
~
suspended sentence, and
~
sentence of probation.
~
Criminal record report
means
record of
~
person's arrest and
conviction history obtained from any source.
Director
means the Executive Director of the Office of Human Rights
and includes the Executive Director's designee.
132
133
Employee
means
~
person permitted or instructed to work or be present
.Qy
an employer in the County.
F:\LAW\BILLS\1436 Fair Criminal
Record
Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
134
135
136
137
Employer
means any person, individual, proprietorship, partnership,
joint venture, corporation, limited liability company, trust, association,
or other entity operating and doing business in the County that employs
[[1.Q]]
15 or more persons full-time in the County. Employer includes
the County government, but does not include the United States, any
State, or any other local government.
Employment
means:
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
ill
ill
any work for compensation; and
any form of vocational or educational training, with or
without compensation.
Inquiry
or
Inquire
means any direct or indirect conduct intended to
gather information, using any mode of communication.
Inquiry or Inauire
does not include:
ill
a question about an applicant's conviction record or arrest
record when the existence of the record· is voluntarily
disclosed by the applicant: or
~
a question about an applicant's emplovment history shown
on the application or the aQplicant's resume.
Interview
means any direct contact by the employer with the applicant,
153
154
155
156
157
158
159
160
whether m Qerson or by teleQhone or internet communication. to
discuss:
ill
~
the employment being sought: or
the aQQlicant' s qualifications.
Interview
does not include:
ill
~
written corresQondence or email: or
direct contact made for the purpose of scheduling a
discussion.
(j)
F:\LAW\BILLS\ 1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
161
162
163
164
165
166
Vulnerable adult
means an adult who lacks the physical or mental capacity
to
provide for his or her own daily needs.
27-72.
Prohibited Ing uiries; Retaliation.
W
Inquiry on application.
An
employer must not require an applicant or
potential applicant to disclose on an employment application the
existence or details of the applicant's or potential applicant's arrest
record or conviction record.
167
168
169
®
Preliminary inquiry into criminal record.
In
connection with the
proposed employment of an applicant, an employer must not, at any
time before
[[~
170
171
172
conditional offer of employment is made]] the
conclusion of a first interview:
ill
require the applicant to disclose whether the applicant has an
arrest record or conviction record, or otherwise has been accused
of~crime;
173
174
175
176
ill
ill
conduct~
criminal
record check on the applicant; or
inquire of the applicant or others about whether the applicant has
an arrest record or conviction record or otherwise has been
accused of a crime.
177
178
179
(£}
Retaliation.
An
employer must not:
180
181
182
ill
retaliate against any person for:
(A)
ill.)
lawfully opposing any violation of this Article;
filing
~
complaint, testifying, assisting, or participating in
183
184
any manner in an investigation, proceeding, or hearing
under this Article; or
185
186
ill
27-73.
obstruct or prevent enforcement or compliance with this Article.
[[Employment decisions; adverse actions]] Rescission of a
conditional offer based on criminal record.
187
©
F:\lAW\Bll..LS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL NO. 36-14
188
189
190
191
tru
[[ill making an employment decision based on an applicant's or
employee's arrest record or conviction record, an employer must
conduct an individualized assessment, considering only specific
offenses that may demonstrate unfitness to perform the duties of the
position sought
Qy
the applicant or held
Qy
the employee, the time
elapsed since the specific offenses, and any evidence of inaccuracy in
the record.
192
193
194
195
196
.(Q)]]
If
an employer intends to [[base an adverse action]] rescind a
conditional offer based on an item or items in the applicant's
[[Qr
employee's]] arrest record or conviction record, before [[taking the
adverse action]] rescinding the conditional offer the employer must:
197
198
199
ill
provide the applicant
[[Qr
employee]] with
f!
£QRY
of any criminal
record report; and
200
201
202
203
ill
notify the applicant
[[Qr
employee]] of the [[prospective adverse
action]] intention to rescind the conditional offer and the items
that are the basis for the [[prospective adverse action]] intention
to rescind the conditional offer.
204
205
206
[[!£)Jl(!U
If,_
within
1
days after the employer provides the notice required
in subsection
®
to the applicant
[[m:
employee,]] the applicant
[[m:
207
208
employee]) gives the employer notice of evidence of the inaccuracy of
any item or items on which the [[prospective adverse action]] intention
to rescind the conditional offer is based, the employer
must[[~
209
21 O
ill]]
delay [[the adverse action]] rescinding the conditional offer for
f!
reasonable period after receiving the information[[;. and
211
212
213
ill
reconsider the prospective adverse action in
.ligb!
of the
information]]:.
F:\LAW\BILLS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 36-14
214
215
216
217
218
219
220
221
[[(d)JJ(c)
Within
1
days after [[taking final adverse action]] rescinding the
conditional offer based on the arrest record or conviction record of an
applicant
[[m:
employee]].1 an employer must notify the applicant
[[Qr
employee]] of the [[final adverse action]] rescission of the conditional
offer in writing.
(dJ
Except as provided m this Section regarding the rescission of a
conditional offer. nothing in this Article requires an employer to give
notice to an applicant of any action of the employer or the basis for any
222
223
27-74.
Exemptions.
224
225
w
.(Q)
The prohibitions and requirements of this Article do not apply if the
inquiries
[[m:
adverse actions]] prohibited
Qy
this Article are expressly
authorized
l2Y
an applicable federal, State, or County law or regulation.
The prohibitions of this Article do not
film.ly
to the County Police
Department. the County Fire and Rescue Service. or the County
Department of Corrections and Rehabilitation.
226
227
228
229
230
(£}
The prohibitions of this Article do not
film.ly
to an employer that
provides programs, services, or direct care to minors or vulnerable
adults.
231
232
233
234
235
(dJ
The prohibitions and requirements of this Article do not apply to an
employer hiring for a position that requrres a federal government
security clearance.
236
237
27-75.
Enforcement.
A person aggrieved
l2Y
an alleged violation of this Article may file
~
complaint
238
239
240
with the Director under Section 27-7.
Sec. 2.
Effective Date.
This Act takes effect on January 1, 2015.
®
F:\LAW\BILLS\1436 Fair Criminal Record Screening Standards\Bill 6.Doc
 PDF to HTML - Convert PDF files to HTML files
LEGISLATIVE REQUEST REPORT
Bill 36-14
Human Rights and Civil Liberties
-
Fair Criminal Record Screening Standards
DESCRIPTION:
This bill would remove one of the barriers to employment facing
persons with criminal records by prohibiting inquiry by certain
prospective employers into job applicants' criminal history early in
the hiring process. It would also require employers to perform an
individualized assessment when making employment decisions based
on an applicant's or employee's criminal record, and allow an
applicant or employee time to correct errors
in
the criminal record
prior to an adverse action being taken regarding their employment.
When people with criminal histories are denied a fair chance at
employment, the entire community pays the cost in the form of
diminished public safety, increased government spending on law
enforcement and social services, and reduced government revenue in
the form of lost income and sales taxes.
To ensure that people with criminal records have a fair chance in
seeking employment by requiring that the question of a job
applicant's criminal history be deferred until later in the hiring
process and not utilized as an automatic bar to employment.
Office of Human Rights, Human Rights Commission and Office of
Human Resources
To be requested.
To be requested.
To be requested.
To be researched.
Josh Hamlin, Legislative Attorney
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Civil penalty and equitable relief.
@
f:\law\bills\1436 fair criminal record screening standards\lrr.doc
 PDF to HTML - Convert PDF files to HTML files
ROCKVILLE, MARYIAND
MEMORANDUM
September 3, 2014
TO:
FROM:
SUBJECT:
Craig Rice, President, County Council
Jennifer
A.
Hughes, Director, Office of Management an
Joseph F. Beach, Director, Department of
Finance~Q\
Council Bill
36~14,
Human Rights and Civil Liberties-Fair Criminal Record
Screening Standards
Please find attached the fiscal and economic impact statements for the above-
referenced legislation.
JAH:fz
e<::
Bonnie Kirkland, Assistant Chief Administrative Officer
Lisa Austin, Offices of the County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Joseph Adler, Director, Office of Human Recourses
David Platt, Department
of
Finance
Robert Hagedoom, Department of Finance
Corey Orlosky, Office of Management and Budget
Alex Espinosa. Office of Management and Budget
Felicia Zhang, Office of Management and Budget
Naeem Mia, Office of Management and Budget
 PDF to HTML - Convert PDF files to HTML files
Fiscal Impact Statement
Council BHI 36-14, Human Rights and Civil Liberties -Fair Criminal Record Screening Standar:ds
1. Legislative Summary.
prohibit certain employers from conducting a criminal background check or
otherwise inquiring into an applicant's
criminal
record before making a
conditional
offer
of employment;
require certain
employers
to provide
prior
notice
to
an applicant
or employee
when taking an adverse action concerning the applicant's or employee's
employment~
provide for enforcement
by
the Office of Human Rights and the
H11man
Rights
Commission;
authorize the Human Rights
Commission
to award certain
relief;
generally regulate the use
of
criminal records
in the
hiring process
by
certain
employers.
2. An estimate of changes in County revenues and expenditures regardless of whether
tbe rl!\ enues or expenditures arc assumed in the recommended or approved budget.
Includes source of information, assumptions, and methodologies used.
1
It would appear in most
instances
where similar legislation is in place in cities, counties
and states, significant data does not exist
to
estimate what our
experience
may be in
Montgomery County. Many of these laws were recently .enacted
and
have not seen a lot
of complaints filed. The city of Philadelphia first enacted their "Ban the Box" ordinance
in
20 I 1
and since that time received approximately 50-75 cases. Many of the cases were
filed shortly after the ordinance was enacted and the agency has seen a leveling off of
complaints since that time. No new staff were hired at the beginning of their program.
The duties and responsibili6es of the new
program
were absorbed
by
existing
staff and
have been manageable for the last four years of the program.
While we have no
way
of predicting what we might anticipate in Montgomery County,
the Philadelphia experience suggest that we could see a fair number of complaints filed
early after establishing the law and then a very modest number of complaints over time.
If
this remains true then the number of cases could be processed by existing si.aff and
would present no major expenditures or adverse impact on current services and staff.
However; since extensive reliable data does not exist
the
Executive
will
revisit the impact
on
staffing once the law has been implemented and some activity can be analyzed.
For OHR, there may have to be changes to the current applicant tracking system to deal
with this regulation. At
this
time, we do not know how extensive the
changes
to the
system
would
be
or
what they would cost. In addition, staff including HR
Specialist.
Recruitment
&
Selection Manager and a County Attorney are involved in processing,
reviewing and notifying applicants of their background results/status.
Any
additional
workload would be either
absorbed
by
the department, or handled with temporary
workers
or contractors, depending on volume.
 PDF to HTML - Convert PDF files to HTML files
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
Expenditures over the next 6 fiscal are estimated
to
be flat and consistent
with
current
budget projections.
Although the cost of any required outreach cannot be estimated at this time, the fiscal
impact of outreach is expected to
be
limited to .the first year of the bill.
4. An actuarial analysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not applicable.
5. Later actions that may affect future revenue and expenditures ifthe bill authorizes
future spending.
Increase in the number of anticipated complaints. which could impact both HRC and
OHR.
6. An estimate of the staff time needed to implement the bill.
It is expected that this bill
will
require an undetermined amount of additional staff time in
order to implement, but HRC and OHR
will
utilize existing staff resources to absorb the
additional workload.
7. An explanation of how the addition of new staff responsibilities would affect other
duties.
HRC and OHR
·will
utilize existing staff resources to absorb the additional workload.
8. An estimate of costs when an additional appropriation is needed.
Additional appropriations are not anticipated to be needed at this time.
9. A description of any variable that could affect revenue and cost estimates.
Variables that could affect cost estimates include the cost and scope of outreach and
possible increase in staff which cannot be estimated at this time. The number of
enforcement actions in any given year is also subject
to
wide variability.
10.
Ranges of revenue or expenditures that are uncertain or difficult to project.
For HRC, although the bill allows for damages and other equitable relief per violation,
actual re.lief or revenue cannot be estimated at this time. Furthermore; not all enforcement
actions may result in complaints. In addition the cost of
any
needed outreach cannot be
estimated at this time.
 PDF to HTML - Convert PDF files to HTML files
11.
If
a
bill
is
likely to have no fiscal impact, why that
is
the case.
The departments involved believe
they
can handle
any
increased workload resulting from
this legislation, based on preliminary indications from other jurisdictions implementing
similar legislation.
12. Other
fiscal impacts
or
comments.
Assumptions and estimates regarding revenues and expenditures are approximate only.
HRC cannot estimate
·with
certainty the number of enforcement actions perfom1ed and
actual cases filed in a given year.
13. The following contributed to and concurred with this analysis:
Jim Stowe, Director, Office of Human Rights (HRC)
Melissa Voight Davis, Office of Human Resources (OHR)
Corey
Orlosky~
Office of Management and Budget
~~
:ij~ughes,
l)if;c
~
Office of
Management and Budget
?/A/t4
Date
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 36-14, Human
Rights
and Civil Liberties -
Fair Criminal Screening Standards
Background:
'This legislation would:
prohibit certain employers from conducting a criminal background check or otherwise
inquiring into an applicant's criminal record before making a conditional offer of
employment;
require certain employers
to
provide prior notice to an applicant or employee when
taldng an adverse action concerning the applicant's or employee's employment;
provide for enforcement
by
the Office of Human Rights and the Human Rights
Commission;
authorize the Human Rights Commission to award certain relief; and
generally regulate the use of criminal records in the hiring process
by
certain
employers.
1.
The sources of information, assumptions,
and
methodologies
used.
Labor Market,
Center
for
Economic
and Policy
Research (CEPR) -
cited herein as the CEPR study. The
study
is also cited in Council Staff memorandum
dated
July
11. 2014.
F~-offenders
ami
the
Employment after Prison: A
Longitudinal Study
ofReleases in Three States,
Justice
Policy Center, Urban Institute -- cited herein as the UI study.
The Department
of Finance
(Finance)
reviewed the literature cited above in preparing the
economic impact statement.
1be
review
\\ill
cite the conclusions in each study to determine the
economic impact on Bill 36-14, or "ban the box" legislation, on employment, speuding, saving,
investment, incomes, and property values in the County.
2. A description
of
any variable that
could affect the economic impact
estimates.
The CEPR study estimates "that ex-offenders lower overall employment rates are as
much as 0.8 to 0.9 percentage points. These employment losses ... impose a substantial cost on
the U.S. economy in the
form
oflost output of goods and services. In GDP terms, we (CEPR)
estimate
that
in
2008 these employment Josses cost the country $57 to $65 billion per year."
Hm.vever, Finance's review of the
study
cannot determine the sole economic benefit
of
prohibiting inquiries
by
prospective employers about an applicant's criminal history and whether
that
history was a felony conviction or time in prison. The study states that "an extensive body
of research
has
established
that
a felony conviction or time in prison makes individuals
significantly less employable" but does not address the causes such as pre-priscm employment
history, education, having an in-prison
job~ g~ral
employment rates and opportunities in local
areas, and age of ex-offender.
Page 1 of3
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 36-14, Human. Rights and Civil Liberties
-
Fair Criminal Screening Standards
The UI study conducted a longitudina] study
in
order to "explore the reality of finding
employment after release from prison." The UI study sampled 740 men recruited
from
2002 to
2003
in
Illinois and 2004 to 2005 in Ohio and Texas. The study focused on addressing: What
factors influence whether former prisoners find Vv"Ork
in
the year after release? The survey asked
questions of the sample
t\\>u
months after release and eight months after release. The survey
found:
Two months after re1ease, many respondents
had
difficulty finding employment and
the majority (70 percent) felt
that
their criminal record had affected their job search.
Many people felt that background checks inhibited their ability to acquire a job and
thought employers did not want to hire someone
with
a criminal record.
The most successful strategy for employment upon release from prison was to return
to
the former employer.
In the same two-month period, the
study
reports that although the majority of
respondents felt their criminal record
had
impacted their job search, 87 percent of
those employed said their current employer knew about their criminal history.
Eight months after release, many participants
in
the study were still searching for a
job. The majority (71 percent) again said that their criminal
history
affected their
ability to obtain a job. While the majority reported that their
criminal
history made
the job hunt more di!1icu1t, 80 percent of employed respondents said their emp1oyer
knew about their criminal hfatory.
1be
findings from the UI study are
that
70 percent of the respondents to the survey two ·
months
after
release felt that background checks inhibited their ability to acquire a job. After
eight-months after release, a majority of respondents reported
that
their criminal history still
made the job hunt more difficult.
1be
UI
study
reached the following conclusions:
One .important finding was the particular vulnerability of ex-offenders finding
employment were those without previous work experience;
The
hiring
process is a large hurdle for more· returning prisoners;
Restrictions on convicted persons working in certain types of jobs impede the process
of finding a job especially after 9/11;
A majority of .respondents felt that
many
employers did not feel comfortable hiring
individuals
l¥ith
a criminal record, and the study concluded that having
to
provide
criminal history
information
before the interview process eliminates many job
opportunities for former prisoners; and
Page 2 of3
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 36-14, Human Rights and
Civil
Liberties -
Fair Criminal
Screening Standards
Giving employers the opportunity to meet and
speak
with job applicants before
discovering their criminal
history has
the
potential to
improve job outcomes
for
former
prisoners.
The conclusions
in
the CEPR
and UI
studies
show
that employment
opportunities for job
candidates Y\i.th a criminal record are more challenging than
for other
candidates which results in
a
lower employment
for
this
population,
although it
is unclear to
what
degree
the
criminal
record
as opposed to pre-criminal record employment and education factors contribute to the job hunt
challenges.
3. The Bill's positive or negative effect,
if
any
on
employment,
spending,
saving, .
investment,
incomes,
and
property
values
in
the
County.
Both studies confirm that having a
criminal
record and having to notify prospective
employers of that status will have a high probability of adversely impacting this population's
ability to obtain
employment.
Therefore, eliminating the notification of a
criminal
record at the
initial stages of employment application may have a positive economic impact on the target
population, i.e., ex-offenders. Even though the CEPR study estimates a significant nati-0nal
economic
and
employment
impact
for
the target
populatio~
there is no
estimate
for the "nef'
impact on the overall national economy. Unless the recommended changes in the studies and in
Bill 36-14 result in more employment demand and economic activity, there would, at best, be an
employment
substitution effect
with
no
measurable economic
impact on overall employment,
spending, savings, incomes. and property values.
4.
If
a Bill is likely
to
have no
economic impact, why
is that the case?
Please see paragraph #3.
5.
The
following contributed to or
concurred
with
this analysis: David Platt and Rob
Hagedoom, Finance.
Page 3 of3
@
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF THE COUNTY ATTORNEY
Isiah
Leggett
County Executive
Marc P. Hansen
County Attorney
MEMORANDUM
TO:
Joe Adler, Director
Office of Human Resources
VIA:
FROM:
!1J
f1J//
f;
f3
<-/
'r
Edward
B.
Lattner, Chief
f,J'3;>
<;./-
Marc
P.
Hansen
County Attorney
Division of Human Resources
&
Appeals
August 11, 2014
DATE:
RE:
Bill 36-14, Human Rights
&
Civil Liberties - Fair Criminal Record
Screening Standards
I.
Summary:
Bill 36-14 is accurately summarized
in
Josh Hamlin's July 11, 2014, introduction packet.
Bill 36-14 would prohibit an employer in the County from inquiring into, or otherwise actively
obtaining the criminal history of an applicant for a job in the County before making a conditional
offer of employment.
It
would also require the employer, in making an employment decision
about an applicant or employee based on the applicant's or employee's arrest or conviction
record, to conduct an individualized assessment, considering only:
specific offenses that may demonstrate unfitness to perform the duties of the
position sought by the applicant or held by the employee;
the time elapsed since the specific offenses; and
any evidence of inaccuracy in the record.
The bill would require an employer deciding to base an adverse action on an applicant's
arrest or conviction record to:
provide the applicant or employee with a copy of any criminal record report; and
notify the applicant or employee of the prospective adverse action and the items
that are the.basis for the prospective adverse action.
101 Monroe Street, Rockville, Maryland 20850-2580
(240) 777-6735 • ITY (240) 777-2545 •FAX (240) 777-6705 • Edward.La11ner@montgomerycountymd.gov
 PDF to HTML - Convert PDF files to HTML files
Joe Adler
August 11, 2014
Page2
If,
within seven days of receiving the required notice of prospective adverse action, the
applicant or employee gives the employer notice of evidence of the inaccuracy of any item or
items on which the prospective adverse action is based, the bill would require the employer to:
delay the adverse action for a reasonable period after receiving the information;
and
reconsider the prospective adverse action in light of the information.
Finally, the bill would require an employer to give an applicant or employee written
notice of a :final adverse action within seven days of
taking
the action.
Bill 36-14 exempts from its provisions inquiries or adverse actions expressly authorized
by an applicable federal, State, or County law or regulation, as well as the County Department of
Police, the County Department of Corrections and Rehabilitation, and employers providing
programs, services, or direct care to minors or vulnerable adults.
The County Office of Human Rights would be responsible for enforcement of the law.
An
applicant or employee would be able to file a complaint with the Office of Human Rights and
obtain an adjudicatory hearing before the Human Rights Commission.
II.
Analysis
A.
1
Standard of review of employer's decision
Section 27-73(a) would require an employer, in making an employment decision [adverse
action] about an applicant or employee based on the applicant's or employee's arrest or
conviction record, to conduct an individualized assessment, considering only:
specific offenses [arrests or convictions]
2
that may demonstrate unfitness to
perform the duties of the position sought by the
appli~t
or held by the
employee;
the time elapsed since the specific offenses [arrests or convictions]; and
any evidence of inaccuracy in the record.
I assume the intent of§ 27-73(a) to require HRC, upon complaint, to determine not only
whether the employer conducted an individualized assessment before taking an adverse action
based upon an applicant's or employee's arrest or conviction record, but, more importantly, to
require HRC to also determine
the correctness or quality of the adverse action taken by the
As discussed below, the
term
"employment decision" is not defined
in
the bill.
If
the term is co-extensive
with the term "adverse action," which is defined
in
the bill, then the bill should use the latter
term.
Again, as discussed below, the term "offenses" is not defined
in
the bill.
It
is assumed
that
the term refers
to arrests or convictions.
2
1
 PDF to HTML - Convert PDF files to HTML files
Joe Adler
August 11, 2014
Page3
employer based upon the applicant's or employee's arrest or conviction record.
The latter
inquiry is far broader
than
the former.
If
that
is
the intent, then the bill should provide a standard
to guide HRC in its review of the employer's decision. For example, can HRC substitute its
judgment for that of the employer's? Even in cases alleging discrimination the courts have
eschewed acting as a "super personnel board" and refused
to
decide whether an employer's
reasoning is wise, fair, or even correct
Nere-nberg v. RICA of
S.
Maryland,
131 Md. App. 646,
675, 750 A.2d 655, 671 (2000). Thus, in a case where an employer
has
taken an adverse action
based upon an applicane s or employee's arrest oi: conviction record, the bill could require HRC
to give deference to the employer's business judgment. The important point
is
some standard
should
be
spelled out in the law
to
guide HR.C's review.
B.
Application to the county
Because the merit system laws and
the
Cowty' s various labor contracts already afford
applicants and employees the right to challenge an adverse action, this bill
will
create a duplicate
and parallel channel of review.
Applicants.
An
unsuccessful applicant for a County position can file an appeal directly
with the Merit System Protection Board, alleging that the Cowty's decision
was
arbitrary,
capricious, illegal, based on political affiliation, failed to follow announced examinati6n and
scoring procedures, or was based upon non-merit factors.
§
33-9(c).
This
would include a
complaint that an applicant's arrest or conviction did not demonstrate unfitness
to
perform the
duties of the position sought.
3
Indeed, the Board
has
heard such complaints
in
the
past
Employees.
The scope of grievable matters tmder the personnel regulations is quite
broad,
MCPR
§
34-4, and would include a complaint that the County took some adverse action
based upon non-merit factors (e.g., an arrest or conviction that does not demonstrate unfitness to
··
perform the duties of the position held).
4
For example, the personnel regulations allow an
employee
to
file a
grievance
challenging a suspension pending investigation of a job-related
offense. MCPR
§
33-3(f). The employee may
appeal
this disciplinary action to the Board.
Section 33-9(c) provides that the Merit Board will not hear an appeal from an applicant or employee
alleging discrimination prohibited
by
Chapter
27;
an applicant or employee must file such a complaint with
the
HRC
as
provided
in
Chapter
27.
See also
MCPR
§
35-2(d). Although the Merit
Board
lacks jurisdiction
to
resolve
complaints alleging discrimination, a complaint from an applicant or employee that the County
did
not select him
for
a
position, or took some other adverse action,
based
upon non-merit factors (e.g..
an arrest
or conviction that
does not demonstrate unfitness to perform the duties of the position sought or held) is not a complaint alleging
discrimination outside the Board's jurisdiction. Prohibited discriminatory
acts
are set out
in
Article
I
of Chapter
27.
But
Chapter 27
sets
out other requirements and proln'bitions that
are
not "discriminatory
acts."
See
Article
X
("Displaced
Service
Workers Protection
Acf')
and Article
XI
("County Minimmn
Wage"). The prohibitions
in
Bill
36-14, which would add Article XII ("Fair criminal records Screening Standards"), are not prohibited
"discriminatory acts."
A probationary or
temporary
employee may grieve a disciplinary action, except an
oral
admonishment,
but may not appeal the CAO's decision
to
the Merit Board. MCPR
§
34-2(b).
A
bargaining
tplit
employee would
have to file a contract grievance under the applicable collective bargaining agreement
if
the Comty's action was
covered
by
that
agreement. MCPR
§
34-2(c).
4
3
 PDF to HTML - Convert PDF files to HTML files
Joe Adler
August 11, 2014
Page4
Bill 36-14 would provide a duplicate and parallel channel of review before HRC, wasting
County resources and raising the possibility of inconsistent results, because the actions
prohibited by the Bill are already prohibited by the County's merit system law (and possibly the
collective bargaining agreements, too).
In
the past, the County
has
avoided such duplication of
efforts. For example, the personnel regulations provide that a bargaining up.it employee may not
file a merit system grievance over a matter covered in the collective bargaining agreement,
but
may file a grievance under the
that
agreement. MCPR
§
33-2(c).
5
An
applicant or employee
alleging discrimination prohibited by Chapter 27 cannot appeal to the Merit Board, but must file
a complaint with the HRC. MCPR
§
35-2(d).
C.
Tiining issues
Proposed§ 27-73(c) provides that an applicant or employee has seven days to respond
after the employer provides notice of intent to base an adverse action upon a prior arrest or
conviction. What if the employee does not respond within the seven days? The bill should
specify whether an employee's failure to timely respond precludes the employee from filing a
latter response from the employee and/or a filing complaint with HRC. Similarly, proposed § 27-
73(d) provides that the employer must provide the employee notice within seven days of taking
final adverse action based upon a prior arrest or conviction. What
if
the employer does not
provide the required notice? Again, the bill should specify whether the employer's failure to
timely response effectively reverses the adverse action or perhaps precludes the employer from
offering a defense to any complaint before HRC. Either way, bear
in
mind
that many employees
and
small
employers will be unaware of these deadlines.
D.
Exemptions
Proposed§ 27-74(b)provides
that
the bill does not apply to the County Police
Departmeni or the Department of Corrections and Rehabilitation.
What
about the sheriff
or
MCFRS?
ID.
Specific Suggested Amendments:
Line 95: "removing improper barriers"
Lines 161 and 162: substitute "basing an adverse action" for "making an employment
decision based." "Adverse action"
is
the term used later in line 169. "Adverse action" is a
defined term; "employment decision" is not. If "employment decision" is intended as a synonym
for "adverse actions" then the term "employment decision" should be defined as a separate term.
Thus, a law enforcement officer may not use
the
grievance
procedure
to
appeal
a matter for
which there
is
a remedy or appeal under 1he
Law
Enforcement Officers' Bill of
Rights.
MCPR 33-2(f). The collective barga:ining
agreements also provide that an employee
initiating
a contract grievance challenging suspension or removal waives
any
right to
have
that
action reviewed
by
the Merit Board. MCGEO
Art.
10.3; IAFF
Art.
38.17(aX7).
5
 PDF to HTML - Convert PDF files to HTML files
Joe Adler
August 11, 2014
Page
5
Line 165: substitute" arrests or convictions" for "offenses."
Line 167: substitute" arrests or convictions" for "offenses."
If
you have any concerns or questions concerning this memorandum please call me.
ebl
Enclosure (bill)
cc:
Josh
Hamlin,
Legislative Attorney
Bonnie Kirkland, Assistant CAO
James Stowe, Executive Director, HRC
Anne T. Windle, Associate County Attorney
Erin Ashbarry, Associate County Attorney
Al4-0115l
M:\Cycom\Wpdocs\D007\P031\00381475.00CX
@
 PDF to HTML - Convert PDF files to HTML files
The Wall Street Journal, Print Edition, August 19, 2014
As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime
1
Even if Charges Were Dropped, a Lingering Arrest Record
Can Ruin Chances of a Job
By Gary Fields and
John
R.
Emshwiller
Jose Gabriel Hernandez was arrested after being falsely identified as
a
sexual predator.
Ben Sklar for The Wall Street Journal
America has a rap sheet.
Over the past 20 years, authorities have made more than a quarter of a billion arrests, the
Federal Bureau of Investigation estimates. As a result, the FBI currently has 77.7 million
individuals on file in its master criminal database-or nearly one out of every three
American adults.
Between 10,000 and 12,000 new names are added each day.
At the same time, an information explosion has made it
easy
for anyone to pull up arrest
records in an instant. Employers, banks, college admissions officers and landlords, among
 PDF to HTML - Convert PDF files to HTML files
others, routinely check records online. The information doesn't typically describe what
happened next.
Many people who have never faced charges, or have had charges dropped, find that a
lingering arrest record can ruin their chance to secure employment, loans and housing.
Even in cases of a mistaken arrest, the damaging documents aren't automatically removed.
In other instances, arrest information is forwarded to the FBI but not necessari'ly updated
there when a case is thrown out local'ly. Only half of the records with the FBI have fully up-
to-date information.
"There is a myth that if you are arrested and cl'eared that it has no impact," says Paul Butler,
professor of law at Georgetown Law. "It's not
,
ike the arrest never happened."
l
Precious Daniels of Detroit is part of a class-action lawsuit against the Census Bureau alleging that tens of thousands of African-Americans
were discriminated against because of the agency's use of arrest records in its hiring process.
Fabrizio Costantini for the Wall Street Journal
When Precious Daniels learned that the Census Bureau was looking for temporary workers,
she thought she would make an ideal candidate. The lifelong Detroit resident and veteran
health-care worker knew the people in the community. She had studied psychology at a
local college.
Days after she applied for the job in 2010, she received a letter indicating a routine
background check had turned up a red flag.
In November of 2009, Ms. Daniels had participated in a protest against Blue Cross Blue
Shield of Michigan as the health-care law was being debated. Arrested with others for
 PDF to HTML - Convert PDF files to HTML files
disorderly conduct, she was released on $50 bail and the misdemeanor charge was
subsequently dropped. Ms. Daniels didn't anti'cipate any further problems.
Impact
I
What happens after arrest
A national survey of youth indicates that being arrested by the age of 23,
regardless of whether convicted, correlates with negative outcomes in
one's life. Below, indicators of respondents who have been arrested
(convicted and not convicted) compared with those not arrested.
Own a home at age
25
llllm
of those arrested and convicted
of those not arrested
of those
arrested but not
convicted
Median income
atage25
Household Income below poverty line at age 25
With high school diploma (or more)
..
. .
- -
.
.
"'
-
• -
.
·•
'
1
-
• •
'
.. ·•
~
'}~
-
'
......,..,..
• •
,
"''I
••
Jt~~
:
...
,,. '
• _.:._
'
_'."\
.'JI'
-·.ti
·~·
A.!)'
53%
With college degree (or more)
, ..
_ _ _ _
, ..
_
_;-o':
--. '
,-e...
. :"),.
J ..
10%
Source: Tia Stevens Andersen of University of South Carolina's anafysis of a National longitudinal
Survey of Youth conducted in 1997-2010
by
the
Uibor
Department
which studied' 8,984 people
born in 1980-84
The Wall
Street Journal
But her job application brought the matter back to life. For the application to proceed, the
Census bureau informed her she would need to submit fingerprints and gave her 30 days to
obtain court documents proving her case had been resolved without a conviction.
@
 PDF to HTML - Convert PDF files to HTML files
Clearing her name was easier said than done. "From what I was told by the courthouse,
they didn't have a record," says Ms. Daniels, now 39 years old. She didn't get the job. Court
officials didn't respond to requests for comment.
Today, Ms. Daniels is part of a class-action lawsuit against the Census Bureau alleging that
tens of thousands of African-Americans were discriminated against because of the agency's
use of arrest records in its hiring process. Adam Klein, a New York-based plaintiff attorney,
says a total of about 850,000 applicants received similar letters to the one sent to Ms.
Daniels.
Representatives for the Census Bureau and the U.S. Justice Department declined to
comment. In court filings, the government denied the discrimination allegation and said
plaintiffs' method for analyzing hiring data was "unreliable" and "statistically invalid."
The wave of arrests has been fueled in part by unprecedented federal dollars funneled to
local police departments and new policing tactics that condoned arrests for even the
smallest offenses. Spending on law-enforcement by states and local governments hit $212
billion in 2011, including judicial, police and corrections costs, according to the most recent
estimates provided to the U.S. Census Bureau. By comparison, those figures, when
adjusted for inflation, were equivalent to $179 billion in 2001 and $128 billion in 1992.
In 2011, the most recent year for which figures are available, the Bureau of Justice
Statistics put the number of full-time equivalent sworn state and local police officers at
646,213--upfrom 531,706in1991.
A crackdown on what seemed like an out-of-control crime rate in the late 1980s and early
1990s made sense at the time, says Jack Levin, co-director of the Brudnick Center on
Violence and Conflict at Boston's Northeastern University.
"Zero-tolerance policing spread across the country after the 1990s because of the terrible
crime problem in late '80s and early 1990s," says Mr. Levin.
The push to put an additional 100,000 more officers on the streets in the 1990s focused on
urban areas where the crime rates were the highest, says Mr. Levin. And there has been
success, he says, as crime rates have fallen and the murder rate has dropped.
But as a consequence, "you've got these large numbers of people now who are
stigmatized," he says. "The impact of so many arrests is catastrophic."
That verdict isn't unanimous. 'We made arrests for minor infractions that deterred the more
serious infractions down the road," says James Pasco, executive director of the Fraternal
Order of Police, which represents about 335,000 officers. 'We don't apologize for that.
Innocent people are alive today and kids have grown up to lead productive lives because of
the actions people took in those days."
At the University of South Carolina, researchers have been examining other national data in
an attempt to understand the long-term impact of arrests on young people. Using
information from a 16-year-long U.S. Bureau of Labor Statistics survey, researchers tracked
 PDF to HTML - Convert PDF files to HTML files
7,335 randomly selected people into their 20s, scrutinizing subjects for any brushes with the
law.
Researchers report that more than 40% of the male subjects have been arrested at least
once by the age of 23. The rate was highest for blacks, at 49%, 44% for Hispanics and 38%
for whites. Researchers found that nearly one in five women had been arrested at least
once by the age of 23.
They further determined that 47% of those arrested weren't convicted. In more than a
quarter of cases, subjects weren't even formally charged.
Mr. Hernandez
carries a
laminated
legal
document from the
Bexar
County Sheriff's office confirming his innocence
in
case he is
arrested in
the future.
Ben Sklar for The Wall Street Journal
It can be daunting to try to correct the record. In October 2012, Jose GabrieJ Hernandez
was finishing up dinner at home when officers came to arrest him for sexually assaulting
two young girls.
Turns out, it was a case of mistaken identity. In court documents, the prosecutor's office
acknowledged that the "wrong Jose Hernandez" had been arrested and the charges were
dropped.
Once the case was dismissed, Mr. Hernandez assumed authorities would set the record
straight. Instead, he learned that the burden was on him to clear his record and that he
would need a lawyer to seek a formal
expungement.
 PDF to HTML - Convert PDF files to HTML files
"Needless to say, that hasn't happened yet," says Mr. Hernandez, who works as a
contractor. Mr. Hernandez was held in the Bexar County jail on $150,000 bond. He didn't
have the cash, so his wife borrowed money to pay a bail bondsman the nonrefundable sum
of $22,500, or the 15% fee, he needed to put up. They are still repaying the loans.
Exacerbating the situation are for-profit websites and other background-check businesses
that assemble publicly available arrest records, often including mug shots and charges.
Many sites charge fees to remove a record, even an outdated or erroneous one. In the past
year Google has changed its search algorithm to de-emphasize many so called "mug-shot"
websites, giving them less prominence when someone's name is searched.
On Friday, California Gov. Jerry Brown signed into law a bill making it illegal for websites to
charge state residents to have their mug shot arrest photos removed.
In 2013, Indiana legislators approved one of the most extensive criminal record
expungement laws in the country. The law was sponsored by a former prosecutor and had
a range of conservative Republican backers. One had worked as a mining-company
supervisor who frequently had to reject individuals after routine background checks found
evidence of an old arrest.
"If we are going to judge people, we need to judge them on who they are now, and not who
they were," says Jud McMillin, the bill's chief sponsor.
The "growing obsession with background checking and commercial exploitation of arrest
and conviction records makes it all but impossible for someone with a criminal record to
leave the past behind," concludes a recent report from the National Association of Criminal
Defense Lawyers.
Further analysis by the University of South Carolina team, performed at the request of The
Wall Street Journal, suggests that men with arrest records-even absent a formal charge or
conviction-go on to earn lower salaries. They are also less likely to own a home compared
with people who have never been arrested.
The same holds true for graduation rates and whether a person will live below the poverty
line.
For example, more than 95% of subjects without arrests in the survey graduated high
school or earned an equivalent diploma. The number falls to 84.4% for those who were
arrested and yet not convicted.
Tia Stevens Andersen, the University of South Carolina researcher who performed the
analysis, says the results are consistent with what criminologists have found. The data,
especially when coupled with other studies, show that an arrest "does have a substantial
impact on people's lives," she says. That is in part because "it's now cheap and easy to do
a background check."
 PDF to HTML - Convert PDF files to HTML files
According to a 2012 survey by the Society for Human Resource Management, 69% of
employers conduct criminal background checks on all job applicants. Fewer than that-
about
58%~allow
candidates to explain any negative results of a check.
Mike Mitternight, the owner and president of Factory Service Agency Inc., a heating and air-
conditioning company in Metairie, La., worries that if he turns down a job applicant because
of a criminal record, he could be open to a discrimination claim. But hiring the person could
leave him open to liability if something goes wrong. "I have to do the background checks
and take my chances," says Mr. Mitternight. "It's a lose-lose situation."
John Keir says he was fired from his
job
after failing to mention brushes with the law on his application. Found not guilty of a recent
charge,
he says he answered truthfully.
Steve Gates for The Wall
Street
Journal
John and Jessica Keir, of Birmingham, Ala., have tried various means to combat their arrest
stigma. In 2012 the married couple was accused of criminal mischief for scratching
someone's car with a key. They were found not guilty at trial.
In January of last year, Ms. Keir, a law-school student, googled herself. "My mug shot was
everywhere," she recalls. "I was just distraught."
Though she was in the top 15% of her first-year class at Cumberland School of Law School
in Birmingham, she says about a dozen law firms turned her down for summer work. Since
she rarely made it to the interview stage, she feared her online mug shots played a role.
Eventually, she landed a summer position at the Alabama attorney general's office.
 PDF to HTML - Convert PDF files to HTML files
The couple says they paid about $2,000 to various websites to remove their mug shots. It
didn't work, Mr. Keir says. New mug-shot sites seemed to appear almost daily. Keeping up
with them all was "like playing Whac-A-Mole," says Mr. Keir.
Ms. Keir, who is finishing her law degree at the University of Alabama, has been using
Facebook, Linkedln and Google to create enough positive Internet traffic to try to push
down negative information lower in any search-engine results.
Meanwhile, her husband believes he has been caught up in a separate quagmire. Earlier
this year Mr. Keir was hired by Regions Bank as an information security official. Weeks
later, he says he was let go from his $85,000 job for allegedly lying on his application.
The 35-year-old Mr. Keir says his firing resulted after failing to disclose his recent arrest
record as well as a number of traffic violations during his teens that had branded him as a
"youthful offender" in Alabama. He says he didn't lie on his application, and only recalls
being asked about any criminal convictions.
A spokeswoman for Regions Bank, a unit of Regions Financial Corp., says the company
couldn't discuss individual personnel matters, but says the bank sends applicant fingerprints
to the FBI as part of criminal background check and asks candidates to answer questions
about previous criminal charges and convictions.
Arrest issues don't necessarily abate with age.
Barbara Ann Finn lost out on
a
school cafeteria
job
last year
after
a background check turned up a 1963 hit on her record, which was
a
surprise to her.
Greg Kendall-Ball for The Wall
Street
Journal
®
 PDF to HTML - Convert PDF files to HTML files
Late last year, Barbara Ann Finn, a 74-year-old great grandmother, applied for a part-time
job as a cafeteria worker in the Worcester County, Md., school system.
"I was a single woman on a fixed income. I was trying to help myself," she recalls.
Along with the application came fingerprints and other checks-a process Ms. Finn
dismissed as mere formality. After all, she had lived in the area since 1985, had worked in
various parts of county government and served as a foster parent. Her background had
been probed before.
So she was surprised by the phone call she received from the school district. Her
fingerprints, she says she was told, had been run through both the state and FBI criminal
databases. She was clear in Maryland, but the FBI check matched her prints to a 1963
arrest of someone with a name she says she doesn't recognize.
Barbara Witherow, a spokeswoman with the school district, confirms that Ms. Finn had
applied for employment and that there were "valid reasons why" she wasn't considered.
Ms. Finn says she believes her problem might trace back to a 1963 episode when she and
a girlfriend had gone to a clothing store in Philadelphia. The other woman began shoplifting,
she says. Police took both of them into custody, Ms. Finn recalls, but she was released.
"I never heard any more about it and never thought any more about it," says Ms. Finn.
Michael Lee is executive director of the nonprofit Philadelphia Lawyers for Social Equity's
Criminal Record Expungement Project and has been working on Ms. Finn's behalf for
months.
The challenge, he says, is expunging a record no one can find.
An arrest record can only be removed if the local court system notifies the FBI that it should
be taken out of the file. In Ms. Finn's case, the local authorities say they can't find the
original record.
A Philadelphia District Court document obtained by Mr. Lee and reviewed by the Journal
says Ms. Finn was never charged. A Pennsylvania State Police spokesman declined to
comment.
Mr. Lee has asked for another background check from the state to try to put the matter to
rest. Says Ms. Finn: "I don't want to die with a criminal record."
Write to
Gary Fields at gary.fields@wsj.com and John R. Emshwiller at
john.emshwiller@wsj.com
@
 PDF to HTML - Convert PDF files to HTML files
:CaHfomla
(2010, 2013)
Cal.
Labor Code
§
'432.9
C.R.S.
§
24-5-101
1
Bon the Box
'f>ublic IS)
Whether there is
"direct relationship"
between conviction
and
job
Consider
nature
of
1
crime
and
relationship
to
the
job
Consider nature of
offense and job
Conviction
bears
"rational
relationship"
to
position
¥\rrests,
Expunged,
Time limit
1
Colorado
(2012)
Bon the Box
Public
(S,
L)
Arrests, Expunged, Other
:
onnecticut
c
1
(2010)
Conn. Gen.
Stat.
§
46o-80
Bon the
Box
Public
(S,
L
**I
Public (S,
C)
Arrests, Expunged
Notification,
Copy
Delaware
(2014)
19 Del. C.
§
711
HRS
§§
378-2,
'378-2.5
HB 5701 and
Executive Order
!'Jid. State Personnel
and
Pensions Code
Ann.§
2-203
M.G.l. Ch. 6
§§
l51B, 168-173
Minn.
Stal.
§
364
LB 907, Section 12
AB
1999
N.M. Stat.§§
28-2-
l to 28-2-6
R.G .
Gen.
Laws
§§
28-5-6, 28-5-7
Bon the Box
Bon the Box; Anti-
discrimination
Bon the Box
Ban
the Box
Bon the Box
Ban the Box
Bon the Box
Ban the Box
Bon the Box
Ban
the
Box
Private
Private
Private
Private
Hawaii
(1998)
Private
Private
Public
IS.
C)
Public
(S)
!Public
(SJ
Public (S, L
*
,
C)
fublic
(S,
L •
,
C)
Public (S,
C)
Public
(S,
C)
Public (S, L
*,
C)
*
r
ublic IS,
C)
Time
limit
Illinois
(2013, 2014)
1
Mcnyland
(2013)
Massachusetts
(2010)
Time limit
Determine
if
conviction
"directly
relates"
to
sition
Notification,
Copy
Notification
Minnesota
'(2009, 2013)
Arrests, Expunged,
Other
·
Nebraska
(2014)
New Jersey
(2014)
.....
Erased, Expunged
Arrests, Other
'.Arrests
Notification
New Mexico
(2010)
Conviction
"directly
relates" to employment
Rhode lsleotd
(2013)
*
Some of
these
components
existed
prior to the legislation
listed
here. **Removal of conviction
inquiry
from
the
licensing application
is
not required.
®
Contact Michelle Natividad Rodriguez, mradriguez@nelp.org
www.nelp.org/banthebox
15
 PDF to HTML - Convert PDF files to HTML files
CHART OF LOCAL FAIR CHANCE POLICIES
Com ton
East Palo Alto
Oakland
Richmond
x
x
x1
x
x
x
x
x
x
x
x
x
x
N,C
N,C
x
x
x
x
x
x
x
x
x
x
x
x
N,C
N
N
N,C
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
N
N
x
x
x
N,C
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
www.nelp.org/banthebox
x
c
x
x
Contact Michelle Natividad Rodriguez, mrodriguez@nelp.org
52
®
 PDF to HTML - Convert PDF files to HTML files
x
x
x
x
x
x
x
x
x
x
x2
N2
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
N
N,C
N
X3
x
x
x
x
x
x
x
x
x
x
x
x
Canton
Cincinnati
Cleveland
Massillon
Youn stown
x
x
x
x
x
x
x
x
N,C
x
x
x
x
x
x
x
N,C
Contact Michelle Natividad Rodriguez, mrodriguez@nelp.org
www.nelp.org/banlhebox
53
 PDF to HTML - Convert PDF files to HTML files
x
x
x
x
x
x
x
N
x
x
x
x
x
x
N,C
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Petersbur
Portsmouth
Richmond
x
N,C
San Francisco Fair Chance Act applies to private employers, not the City and County.
2
Applies only to public employers.
3
Policies apply to contractors doing business with the Human Services Department.
1
Contact Michelle Natividad Rodriguez, mrodriguez@nelp.org
www.nelp.org/banthebox
54
 PDF to HTML - Convert PDF files to HTML files
Testimony on Behalf of County Executive Isiah Leggett on
Bill 36-14, Human Rights and Civil Liberties-Fair Criminal Record Screening
Standards
Good afternoon. My name is Joe Adler. I am the Director of the Montgomery County
Office of Human Resources. I am here today on behalf of County Executive Isiah Leggett
in
support ofBill 36-14. As cited
in
the legislative packet this bill would remove one of the
employment barriers faced by persons with criminal records.
It
prohibits employers in
Montgomery County from asking about arrests or convictions in the application fonn, otherwise
known as "ban the box". The need for this legislation is evidenced by the fact that over 92 million
adult Americans have a criminal history record involving an arrest or conviction. Research
conducted by the Center for Economic and Policy cited in the Economic Impact Statement
submitted by the Montgomery County Department of Finance, estimates that the employment loss
by this population in 2008 amounted to a reduction of the national GDP by as much as $57-$65
billion.
The Attorney General's Reentry Council of the United States Department of Justice cites
FBI data that a majority of arrests are for relatively minor offenses, and only 14 percent are for
violent crimes or simple assaults
1•
Studies funded by the National Institute of Justice found that
the employment bar due to a criminal record disproportionally impact people of color. A criminal
record reduces the chance of a job call back by nearly 50 percent, but the non call back rate for
African-Americans and Latinos was "substantially'' higher.
2
Bill 36-14 begins to address these
inequities by prohibiting employers from inquiring about criminal convictions until after a
conditional offer of employment is made. The same process is required of all employers in the
United States in tenns of applicants with a disability or a serious medical condition. The
Americans with Disabilities Act, as Amended (ADAA) does not allow employers to inquire about
the health of an applicant until after a conditional offer is made.
Another important aspect ofBill 36-14 requires employers to provide prospective
employees with a copy of the criminal record if the employer bases an adverse action, such as
tennination or not-hiring, on the criminal record. Candidates are given the opportunity to check
the accuracy of the criminal record before any final decision is made. This element may seem
minor, but it gives a measure of fairness to applicants and employees. A study conducted by the
US Department of Justice (2006) found that at least 50 percent of the records in the FBI's criminal
records depository are incomplete, and that no single source exists which provides up to date
infonnation.
3
Amy
Solomon,
"In
Search of a Job: Criminal Records as Barriers
to
Employment,"
NIJ
Journal, Issue No. 270
(June 2012), US Department of Justice (p.43)
2
Ibid.
3
Solomon, op.cit. (p.48)
1
 PDF to HTML - Convert PDF files to HTML files
We must keep in mind that almost everyone who is incarcerated will eventually be
released. Unfortunately, many will be rearrested and reincarnated. Being able to compete for
employment on an even playing field is an important step for those who broke the law and paid for
their mistakes. The legislation does not establish any preference for hiring ex-offenders, it merely
prohibits upfront rejection and allows a more complete consideration of the applicant before a
final decision is made in terms of hiring. The packet prepared by the Council's Legislative
Attorney mentions that at least 11 states, including Maryland and over 50 local jurisdictions have
enacted some form of "ban the box" legislation. More recently, the City of Baltimore and
Washington DC have enacted similar laws.
For the reasons cited above, the County Executive supports the enactment ofBill 36-14,
with amendments to address the issues raised by the County Attorney.
 PDF to HTML - Convert PDF files to HTML files
Testimony before the Montgomery County Council
Bill 36-14
September 9, 2014
Good afternoon Members of the Montgomery County Council. I am Arthur Wallenstein, Director,
Montgomery County Department of Correction and Rehabilitation. I am present today to speak in favor of
Bill 36-14, "Ban the Box." Over the past 30 years our country has seen a continuous growth in the prison,
jail and probation population while at the same time a reduction in criminal behavior has characterized our
public policy and public safety environment.
Millions upon millions of US residents have come before the criminal justice system. The vast majority -
well over 85% are for non violent crimes, and almost all are returned to their local communities.
Historically, recidivism rates are high - over 60% return in some measure to the criminal justice system. A
major determinant in this revolving door has been the absence of meaningful employment coupled with
discrimination in housing and rejection from other areas of public participation. We then manifest disdain
for their inability to participate in civic life and criticize the public resources that are spent supporting their
return to some element of the criminal justice system. It is a self defeating prophesy, and we must stop
this revolving door and directly confront the issues of under employment or overt rejection from the job
market and the employment sector that exists in our strong and vibrant economic life in Montgomery
County.
Former County Council Member and now Secretary of Labor Tom Perez has spoken out repeatedly in
support of real and sustained workforce development and employment policies that do not overtly deny
ex offenders the opportunity to compete on an equal footing for jobs for which they are otherwise
qualified. He recently reiterated this support during a visit to the Montgomery County Correctional Facility
in Boyds with the Attorney General of the United States Eric Holder. They came to support the
development of employment skills and and educational capacity to engage the wor1d of work in this
community.
In our County work release program offenders are guided into employment situations. They pay federal,
state and local taxes and participate in the support of their family members. They also pay support when
separated families exist and, where required by the Courts, restitution to the victims of their crimes. This
is part of the road to a thoughtful return to our community. Ban the Box seeks to provide elements of a
steady and open field of opportunity to gain the respect of meaningful employment. We fail in my work if
employment is denied or if job applicants are rejected prior to being able to prove their worth and
qualifications and desire for a specific position in our community. Work counts enormously. When a
criminal sentence is served it is concluded and nothing in our system should reject out of hand and
without full consideration of the total person their ability to work in a wide spectrum of positions in our
community.
Ban the Box does not guarantee employment. Ban the Box does not move ex offenders ahead of
others in the search for meaningful employment. It does ensure they are permitted to be in line .
and to be considered on the merits of their credentials and skills and determination to seek and
find meaningful employment.
We believe in a living wage in Montgomery County so that workers are
not held in a crippling vice of poverty. Let us recognize that those previously involved with the criminal
justice system not be rejected without a fair opportunity to apply for employment in our community. We
cannot on one hand criticize persons for their failure to work and then immediately establish barriers that
do not let them in the employment application line on the level playing field.
I urge your support of this legislation that seeks to open the doors of open and equal competition in the
world of work for all persons in Montgomery County.
 PDF to HTML - Convert PDF files to HTML files
Testimony on Bill 36-14, Human Rights and Civil Liberties- Fair Criminal Record
Screening Standards
September 9, 2014
Good afternoon Members of Council. My name is James Stowe, Director of the Office of
Human Rights, and I am here to speak in support of proposed Bill 36-14. We agree with
the prior testimony on the conditions of our community and nation that have lead to the
consideration of this bill. 1bis is further confinned by the number of states, counties and
other local jurisdictions that are considering similar legislation. The bill strives to remove
one of the many employment barriers faced by persons with criminal records, but the bill
does not take the final employment decision out of the hands of the employer.
According to the proposed legislation, the Office of Human Rights and the Human Rights
Commission would be involved in the enforcement activities associated with this bill.
While it has not taken a formal position on the bill, the Commission, chaired by Russell
C. Campbell, has been briefed on the legislation. We believe that fairness in the
workplace for both employer and employee ought to be the goal of every community.
We thank the sponsors of this legislation'and all the members of the County Council for
bringing this important discussion and proposal to the attention of the community. We
look forward to working with the Council and all interested parties as the Council
considers the bill and are available to address any questions or concerns on aspects of the
bill that relate to our office.
 PDF to HTML - Convert PDF files to HTML files
PARTNERSHIP
Montgomery County Community Action Board's
County Council Testimony
Bill 36-14: Human Rights and Civil Liberties-
Fair Criminal Record Screening Standards
Tuesday, September 9, 2014
Matthew J. Green, Jr.
Community Action Board Chair
Good afternoon Mr. President, and members of the Montgomery County Council.
My name is Matthew J. Green, Jr. and I am the Chair of the Community Action Board of
the Montgomery County Community Action Agency, the County's anti-poverty group
and governing board for Head Start and the Community Service Block Grants (CSBG).
Bill 36-14 will address the needs of many low-income residents who cannot achieve
self-sufficiency due to lack of employment.
As the Chair of the Montgomery County Community Action Board, I am here today on
behalf of the County's low-income community. Currently, 6.4% of the County's
population and 8.7% of the County's children live below the poverty line. Due to the
high cost of living in the County though, the number of people struggling to meet their
basic needs is much higher.
1
1
The 2012 Self-Sufficiency Standard for a family of four with two working parents, a preschooler and a
school-age child, was $83,000 - four times the Federal Poverty Level.
 PDF to HTML - Convert PDF files to HTML files
As you know, low-income individuals are over-represented in the Criminal Justice
System. When individuals are released from incarceration, reentry into the community
poses many obstacles, not the least of which is finding employment. The
unemployment rate for formerly incarcerated people is as high as 60% one year after
release.
The mere fact of having a criminal history can have severe negative consequences on a
person's ability to find a job, earn a living wage, and help their family to become self-
sufficient. A 2010 Pew Charitable Trusts study found that having been incarcerated
reduces average hourly wages by 11 % and reduces annual earnings by 40%.
Unemployment then leads to continued poverty and, in some cases, increased
recidivism.
Individuals who are released from incarceration and reenter areas like Montgomery
County, where affording the basic necessities such as housing, food, and transportation
can be difficult, face particular challenges. "Banning the box" will help to address these
challenges by removing one of the many barriers preventing those with criminal records
from obtaining employment.
Furthermore, "banning the box" in Montgomery County will not only help individuals who
are released from incarceration into our community, but will also have a positive impact
on their families and on our entire community. Increased participation in the workforce
can improve the local economy through increased tax revenue and reduced
expenditures for law enforcement and corrections.
In addition to the economic advantages of increasing the workface, research shows that
individuals who find_ employment after their release from incarceration have decreased
rates of recidivism. National statistics show that two-thirds of all those who are released
from prison will be rearrested within three years and more than half will return to prison
or jail in that period.
2
 PDF to HTML - Convert PDF files to HTML files
Removing obstacles such as application questions about criminal history will help
individuals to find employment and this will ultimately reduce recidivism. According to
the Urban Institute, "All things equal, former prisoners who are able to secure a job,
ideally at higher than minimum wage, by two months out are more likely to successfully
avoid recidivism the first 8 to 12 months after release."
For many who are released from incarceration, reentry into the community can be an
overwhelming experience. They face both economic and personal obstacles and often
lack the necessary supports. "Banning the box" can assist this population in one
significant way by removing a major barrier to employment and, ultimately, help many in
the low-income community achieve self-sufficiency.
On behalf of the Montgomery County Community Action Board, we fully support Bill 36-
14 as an effective tool in the fight against poverty. We hope that the Council will pass
this bill and take steps in the future to provide additional services for this vulnerable
population.
Thank you.
References
The Power of Work
by The Center for Employment Opportunities Comprehensive Prisoner Reentry
Program http://www.mdrc.org/sites/defaulVfiles/full 572.pdf
Employment After Prison: A Longitudinal Study of Releasees in Three
States by Christy Visher, Sara
Debus and Jennifer Yahner of The Urban Institute
http://www.urban.org/UploadedPDF/411778 employment after prison.pdf
Collateral
Costs:
Incarceration's Effect on Economic Mobility
by The PEW Charitable Trusts
http://www. pewtrusts.orgl-/media/leqacy/u ploadedflles/pcs assets/201O/CollateralCosts1 pdf. pdf?la=en
3
 PDF to HTML - Convert PDF files to HTML files
Helping Ex-Offenders Get Jobs
There are 2 goals:
1.
Help ex-offenders return to society and be productive and law ab!ding.
2. Help employers find the best person to meet their needs.
The present system defeats both of these goals to some degree.
Societies point of view:
-
-
The worst circumstance is for them to be idle and without income.
The best circumstance would be for them to be productive as soon as possible.
Employers point of view:
-
-
-
Needs to find the best person he can to fill his job vacancy.
Often the ex-offender will have the qualifications and experience that fit the job
requirements.
If so, why screen them out prematurely? This helps neither the ex-offender, the
employer or society.
Conclusions:
-
-
-
I'm certainly not saying there should be no safeguards, but l believe they are
included in the proposed legislation.
The ex-offender is much more likely to become productive sooner.
The employer has more options infilling his job vacancy. The decision is still the
employer's among a larger pool of candidates.
-
There are no disadvantages.
The employer can still do the records check at a
later point in time and weigh the pros and cons.
-
-
-
Let's let the employer make the decision instead of screening out potential qualified
job candidates.
Screening out ex-offenders in advance is adding an additional penalty and is a dis-
service to them, the employer and society.
What could be worse than dumping unemployable ex-offenders on society?
-
Let the employer decide.
 PDF to HTML - Convert PDF files to HTML files
-
AMERICAN CIVIL LIBERTIES UNION
of
MARYLAND
Testimony for the Montgomery County Council
September 9, 2014
Bill 36-14, Human Rights and Civil Liberties- Fair Criminal Record Screening
Standards
SUPPORT
The ACLU of Maryland urges a favorable report on Bill
36-14,
which would help remove a
roadblock to employment for many individuals. One of the collateral consequences of our society's
mass criminalization is that individuals are denied the opportunity to work because of a prior arrest