HHSIPS
Item 1
October
9,2014
Worksession
MEMORANDUM
October
7, 2014
TO:
FROM:
ty
Health and.
Hwn~ se~iCeSIPUbli.,C.I.'~S~
Committee
Josh HamlIn, legIslatIve Attorney
I
;,,--,-/
SUBJECT:
Worksession:
Bill
36-14,
Hwnan Rights and Civil Liberties
Record Screening Standards
Fair Criminal
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.
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 Hwnan Rights and the Hwnan Rights
Commission;
(4)
authorize the Hwnan Rights Commission to award certain relief; and
(5) generally regulate the use
of
criminal records in the hiring process by certain
employers.
Background
The nBan 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
several state and local jurisdictions', most recently the City of Baltimore in May of this year?
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; Bi1120-642, 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.
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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
(©32) and more than 60 local jurisdictions (©33-35) 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. s The consequences of having a criminal record for job-seekers was recently
chronicled in the Wall Street Journal (see ©23-31).
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
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
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.
s
Baltimore (2014), Buffalo (2013), Newark (2013), Philadelphia (201l), San Francisco (2014), and Seattle (2013).
IfBil120-642 is enacted
in
its current fonn, the District of Columbia would become the seventh local jurisdiction to
ban the box for private employers.
6
Dennis DeBacco and Owen Greenspan,
Survey o/State Criminal History Information Systems,
2008. Bureau of
Justice Statistics (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics 2009).
hnps:!/www.ncjrs.gov/pdffiles Ilbjs/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.usdoLgov/contentlpub/pdf/pl O.pdf
8
Mark T. Berg and Beth M. Huebner,
Reentry and the Ties that Bind: An Examination o/Social Ties, Employment,
and Recidivism,
Justice Quarterly (28), 2011, pp.382-41O.
hnp:!lwww.pacific-gateway.org/reentry,%20employmentll/o20and%20recidivism. pdf
9
Bruce Western and Becky Pettit,
Collateral Costs: Incarceration's Effect on Economic Mobility,
The Pew
Charitable Trusts, 20 I O.
3
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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.
1o
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
ll
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.
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.
http://www .pewtrusts.orgl-/mediaJImported-and-Legacy/uploadedfiles/pcs assets/20 1O/CollateralCosts
Jpdf.pdf
10
John Schmitt and Kris Warner,
Ex-offenders and the Labor Market,
Center for Economic and Policy Research,
2010. http://www.cepr.netldocuments/publications/ex-offenders-201 O-ll.pdf
II
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.
12
This requirement is consistent with enforcement guidance issued in 2012 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.
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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 (©36-37), Director of Correction and Rehabilitation Arthur
Wallenstein (©38), and Director of the Office of Human Rights James Stowe (©39) represented
the Executive and testified in support of the Bill. Matthew J. Green, Jr., Chair of the Community
Action Board ©40-42), Anita Powell of the NAACP, Caryn York of the Job Opportunities Task
Force, Robert Velthuis (©43), Robert Barkin of Jews United for Justice, Sara Love ofthe ACLU
(©44), and Jeffrey 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 (©45-46),
Marilyn Balcombe of the Gaithersburg-Germantown Chamber of Commerce (©47-48), Elise
Ambrose of Elite Personnel (©49-51), William Moore of the International House of Pancakes
(©52-53), and Mark Scott all spoke
in
opposition to the Bill. A letter in opposition to the Bill
from the Montgomery County Chamber of Commerce (©54-60) 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 onjob 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
(©61-63). 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
criminal background information only when requested by the applicant; (3) that employer
liability be more clearly defined; and (4) that penalties for violations be limited to fines payable
to the County.
Issues for Committee Discussion
1.
14
At what point should inquiry into criminal history be allowed?
The Gaithersburg-Gennantown, Greater Bethesda-Chevy Chase, Greater Silver Spring, Wheaton Kensington, and
Montgomery County Chambers ofCommerce, along with the Apartment and Office Building Association, were
signatories.
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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)
After a conditional otTer is made
(Bill
36-14
as drafted, D.C., Baltimore,
Newark).
Pros:
• 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.
After first intenriew
(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 intenriew
(Buffalo, Seattle).
Pros:
• Employer
has
at least given employee initial consideration without regard
to criminal history;
5
2)
3)
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• 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?"
Councilmember Eirich may introduce an amendment
to allow an inquiry to be made at "the
conclusion of the first interview (See ©64).
2.
Should the Bill provide for damages awarded to complainants or just fines payable
to the County?
Bill 36-14, as drafted, pennits the Commission on Human Rights (the Commission) to
award damages to the complainant in the fonn 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 ifthe only penalty for a
violation is a fme 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
6
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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;
• appropriate injunctive relief; and
• reasonable attorney's fees and costs.
Seattle provides for fines of up to $1,000, but no damages for complainants.
Councilmember Eirich may introduce an amendment to provide that violators of the law are
subject to a civil penalty of up to $1,000, but not liable for awards of damages to a complainant
(See ©65-66).
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.
Councilmember Eirich may introduce an amendment to remove the requirement that an
employer conduct an individualized assessment, and clarifying that the Commission's review is
limited to the timing of an inquiry, and compliance with the notice provisions of the law (See
©67-68).
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If the existing "individualized assessment" language in the Bill is retained, Council staff
recommends an amendment to insert a colon after the word "considering" on line 164, followed
by a numbered list, so that lines 164-168 would read as follows:
conduct an individualized assessment, considering;
ill
only specific offenses that may demonstrate unfitness to perform the
duties of the position sought
Qy
the applicant or held
Qy
the employee[[,.11i
the time elapsed since the specific offenses[[,and]]
any evidence of inaccuracy in the
record[!.1~
!il
other evidence consistent with the Equal Emplovment Opportunities
Commission Enforcement Guidance on the Consideration of Arrest and
Conviction Records in Emplovment Decisions Under Title VII of the Civil
Rights Act of 1964. as amended.
m
ru
This would clarify that the word "only" modifies the "specific offenses" and does not limit the
scope of the assessment to the three listed items. The reference to the EEOC guidance amplifies
this clarification.
4.
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.
Council staff recommendation: amend the definition of
Inquiry or Inquire
by adding the
following after line 136:
Inquiry or Inquire
does not include:
ill
a question about an applicant's conviction record or arrest record when the
existence of the record is yoluntarily disclosed by the applicant; or
a question about an applicant's employment history shown on the
application or the applicant's reswne.
m
5.
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 defmed 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,
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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.
6.
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.
7.
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
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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.
8.
How 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
recommends a clarifying amendment to provide that employers subject to the law are hiring
employees to work
primarily
in the County
Council staff recommendation:
Amend lines 104-105, as follows:
Applicant
means
~
person who is considered or who requests to be considered for
employment primarily in the County
Qy
an employer.
9.
County Attorney Amendments.
The memorandum from the County Attorney contained four suggested technical
amendments:
1)
On line 95, insert the word "improper"
2)
3)
4)
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"
Council staff recommendation:
make the suggested amendments but note that, if the Bill is
amended to remove the requirement that an employer conduct an individualized assessment, the
suggested amendment to lines 161-162 will be moot.
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1bis 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
EIrich Amendment 1
EIrich Amendment 2
EIrich Amendment 3
Circle
#
1
10
11
18
23
32
33
36
38
39
40
43
44
45
47
49
52
54
61
64
65
67
F:\LAW\BILLS\l436 Fair Criminal Record Screening Standards\HHS]S Memo.Doc
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Bill No.
36-14
Concerning: Human Rights and Civil
Liberties - Fair Criminal Record
Screening Standards
Revised: July 10, 2014 Draft No. _4_
Introduced:
July 15, 2014
Expires:
January 15, 2016
Enacted: ____________________
Executive: ___-.,.-_ _ _ _ __
Effective: _--::-::--_____________
Sunset Date:
-!.!.No~n~e:..__
_________
Ch. _ _, Laws of Mont Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers EIrich, Branson and Navarro, Council President Rice, and Councilmember
Riemer
AN
ACT to:
(1)
(2)
(3)
(4)
(5)
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 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.
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, Human Rights and Civil Liberties
Article XII, Fair Criminal Record Screening Standards
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsll
* * *
Heading or defined term.
Added to existing law by original bi/l.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the foIIowing Act:
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BILL
No. 36-14
1
Sec. 1.
Sections 27-7 and 27-8 are amended and Chapter 27, Article
2
xn
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.1 or any group or person seeking
to
enforce this Article or Articles X.1 [or] XI, or XII, may file with the
Director a written complaint, sworn to or affirmed under the penalties of
peIjury, that must state:
(1)
(2)
the particulars ofthe 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
*
(0
(1)
*
*
Initial determination, dismissal before hearing.
The Director must determine, based on the investigation, whether
reasonable grounds exist to believe that a violation of this Article
or Articles X.1 [or] XI, or XII, occurred and promptly send the
determination to the complainant and the respondent.
16
17
18
19
(2)
lfthe Director determines that there are no reasonable grounds to
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
20
21
22
23
24
25
26
27
(j)
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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
(3)
(2)
27-8.
(3)
(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.1 [or] XI, or XII, occurred.
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).
*
Penalties and relief.
*
*
(a)
Damages and other relieffor complainant.
After finding a violation
of this Article or Articles X.1 [or] XI, or 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 X or XII; and
*
*
*
equitable relief to prevent the discrimination or the violation of
Articles X.1 [or] XI or XII, and otherwise effectuate the purposes
ofthis Chapter;
consequential damages, such as lost wages from employment
discrimination or a violation of [Article] Articles X or XII or
higher housing costs from housing discrimination, for up to 2
years after the violation, not exceeding the actual difference in
expenses or benefits that the complainant realized while seeking
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BILL
No.
36-14
55
56
57
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.1 [or] XI or XII, or is necessary to eliminate the effects
of any discrimination prohibited under this Article.
58
59
60
61
(b)
Civil penalties.
(1)
62
63
In
addition to any damages awarded to any person under
this article, the case review board may require any person, except the
County, who has violated this article or Article XII to pay to the County
as a civil penalty:
64
65
66
67
68
*
(E)
*
*
for each violation ofArticle XII,
!!I!
to $1,000;
for any other violation, $500.
®
ARTICLE XII.
27-71.
69
70
71
*
*
*
Fair Criminal Record Screening Standards.
Findings and Purpose; Definitions.
Findings.
72
73
ill
ill
The U.S. Department of Justice's Bureau of Justice Statistics
(HJS) estimates that over 92 million Americans, roughly one in
three adults, have
f!
criminal history record involving an arrest or
conviction.
74
75
76
77
m
According to the BJS, nearly 700,000 people
f!
year return to their
communities from incarceration, and many are job seekers who
are ready and able to become part ofthe work force.
78
79
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BILL
No. 36-14
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81
82
83
84
85
86
87
88
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.
ill
Lack of employment is
!!
significant cause of recidivism, which
threatens public safety and disrupts the fmancial 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 fmd gainful employment, are an impediment
to the County reaching its potential for economic growth.
89
90
91
92
93
94
®
{hl
Increasing employment of people with criminal records improves
public safety and reduces the financial burden on government.
Purpose.
It is the purpose ofthis Article to:
ill
ill
assist in the successful reintegration into the workforce of people
with criminal records
Qy
removing barriers to employment; and
enhance the health and safety of the community
Qy
assisting
people with criminal records to lawfully provide for themselves
and their families.
95
96
97
98
99
100
W
Definitions.
As used in this Article:
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
!!
person of employment opportunities or
otherwise adversely affect the person's employment status.
101
102
103
104
Applicant
means
!!
person who is considered or who requests to be
considered for employment in the County
Qy
an employer.
105
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BILL
No. 36-14
106
107
108
109
110
111
112
113
114
115
116
Arrest record
means infonnation indicating that
~
person has been
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 that is conditioned
solely on:
ill
ill
the results of the employer's later mqUIry into the
applicant's criminal record; or
another contingency expressly communicated to the
applicant at the time ofthe offer.
Conviction record
means infonnation regarding
~
sentence arising from
~
117
118
119
verdict or plea of guilty or nolo contendre, including
~
sentence of
incarceration,
~
fme,
~
suspended sentence, and
~
sentence of probation.
Criminal record report
means
~
record of
~
person's arrest and
120
121
122
123
124
125
126
127
128
129
130
conviction history obtained from any source.
Director
means the Executive Director of the Office of Human Rights
and includes the Executive Director's designee.
Employment
means:
ill
ill
any work for compensation; and
any fonn of vocational or educational training, with or
without compensation.
Employee
means
~
person pennitted or instructed to work or be present
Qy
an employer in the County.
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
10 or more persons full-time in the County. Employer includes the
131
132
(9
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BILL
No. 36-14
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135
136
137
138
139
140
141
142
County government, but does not include the United States, any State,
or any other local government.
Inquiry
or
Inquire
means any direct or indirect conduct intended
to
gather infonnation, using any mode of communication.
Vulnerable adult
means an adult who lacks the physical or mental
capacity to provide for his or her own daily needs.
27-72.
Prohibited Inquiries; 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.
143
144
.au
Preliminary inquiry into criminal record
In
connection with the
145
146
proposed employment of an applicant, an employer must not, at any
time before
~
conditional offer of employment is made:
147
148
ill
require the applicant to disclose whether the applicant has an
arrest record or conviction record, or otherwise has been accused
of~crime;
149
150
151
152
153
154
155
ill
ill
conduct
~
criminal record check on the applicant; or
inquire of the applicant or others about whether the applicant has
an arrest or conviction record or otherwise has been accused of
~
cnme.
(£l
Retaliation.
An
employer must not:
ill
retaliate against any person for:
(A)
lawfully opposing any violation ofthis Article;
filing
~
156
157
158
{ill
complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding. or hearing
under this Article; or
159
(!)
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BILL No. 36-14
160
161
162
163
164
165
166
167
168
169
170
171
ill
27-73.
obstruct or prevent enforcement or compliance with this Article.
Employment decisions; adverse actions based
!!!!.
criminal record.
1.ru
In
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.
(Q)
If an employer intends to base an adverse action on an item or items in
the applicant's or employee's arrest record or conviction record, before
taking the adverse action the employer must:
172
173
174
175
176
177
178
179
180
181
ill
ill
(£)
provide the applicant or employee with
record report; and
~
fQPY.
of any criminal
notify the applicant or employee of the prospective adverse action
and the items that are the basis for the prospective adverse action.
IT,.
within
1
days after the employer provides the notice required in
subsection
(Q)
to the applicant or employee, 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 employer
must:
ill
ill
delay the adverse action for
the information; and
~
reasonable period after receiving
182
183
184
reconsider the prospective adverse action
information.
In
l.igh!
of the
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BILL
No. 36-14
185
186
187
188
189
190
@
Within
1
days after taking final adverse action based on the arrest or
conviction record of an applicant or employee, an employer must notifr
the applicant or employee ofthe final adverse action in writing.
27-74.
Exemptions.
tru
The prohibitions and requirements of this Article do not
mm1Y
if the
inquiries or adverse actions prohibited
Qy
this Article are expressly
authorized
Qy
an applicable federal, State, or County law or regulation.
191
192
193
®
The prohibitions of this Article do not
Department
or
the
County
mm1Y
to
the County Police
Department
of Corrections
and
194
195
Rehabilitation.
ill
The prohibitions of this Article do not
mm1Y
to an employer that
196
197
198
199
200
201
202
provides programs, services, or direct care to minors or vulnerable
adults.
27-75.
Enforcement.
A person aggrieved
Qy
an alleged violation of this Article may file
~
complaint
with the Director under Section 27-7.
Sec. 2.
Approved:
Effective Date.
This Act takes effect on January
1,2015.
203
204
Craig
L.
Rice, President, County Council
Date
205
206
Approved:
Isiah Leggett, County Executive
Date
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LEGISLATIVE REQUEST REPORT
Bill 36-14
Fair Criminal Record Screening Standards
Human Rights and Civil Liberties
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
t\law\bills\1436 fair criminal record screening standards\lrr.doc
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ROCKVILLE, MARYLAND
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
ofFinance~~
.
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 aoove­
referenced legislation.
.
JAH:f.l
cc: Bonnie Kirkland. Assistant Chief Administrative Officer
Lisa Austin. Offices ofthe County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield. Director, Public Information Office
Joseph Adler, Director, Office ofHuman Recourses
David Platt, Department of Finance
Robert Hagedoorn. Department of Finance
Corey Orlosky. Office of Management and Budget
Alex Espinosa, Office of Management and Budget
Felicia Zhang. Office of
Mallagement
and Budget
Naeem Mia,.
Office
of
Management
and Budget
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Fiscal Impact Statement
Council
BiII36~14,
Human Rights and Civil Liberties -Fair Criminal Record Screening Standat: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
otler
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 Hllman 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 revenues or expenditures are assumed
in
the recommended or approved budget .
.Includes source of information, assumptions, and methodologies
used.
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 maybe 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 2011 and since that time received approximately 50-75 cases. Many of tbe 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.
1be duties and
responsibilities
of the new program were absorbed
by
existing
staff
and
have been manageable for
the 18..<:;t
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 pro(""essed
by
existing staff 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,
revie\\'ing and notifying applicants of their background results/status.
Any
additional
workload would he either absorbed by the department, or handled with temporary
workers or contractors, depending on v01ume.
@
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3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
Expenditures over the next 6 fiscal are estimated
to
be Hat and consistent with current
budget proje<:tions.
Although the cost of any required outreach cannot be estimated at this time, the fiscal
impact of outreach is expected to be linlited 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
HRe
and
OHR.
6.
An estimate of the staff time needed to implement the
bill.
It
is expected that tbis
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
dutie..~.
HRe
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 variabJe that could affect revenue and cost estimates.
Variables that could affect cost estimates include the oost and scope of outreach and
possible increase in
~1:aff
which
CMnot
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 relief or revenue cannot
be
estimated at this time. Furthennore, not all enforcement
actions may
result in complaints. In addition the
cost of
any
needed outreach cannot be
estimated at this time.
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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, base,d 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 performed 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
nifer . Hughes, Direc
Office of Management and Budget
2/A/l4
Date
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Economic Impact Statement
Bill 36-14, Human
Rights
and
ChrU
Liberties ­
Fair Criminal
Screening
Standards
Background:
This legislation would:
• prohibit cenain 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
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.
Ex-()ffinders and the 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.
Employment afier Prison: A Longitudinal Study ofReleases in Three States,
Justice
Policy Center, Urban Institute --
cited
herein as the VI study.
111e Depa.rtment of Finance (Finance) reviewed the literature
cited
above in preparing the
economic impact statement. The review will cite the conclusions
in
each study to determine the
economic impact
on
Bill 36-14, or "ban the box" legislation, on employment, spending, saving,
investmell~
incomes, and property values in the County.
2. A
desCription of any
variable that could affect the
economic
impact estimates.
The CEPR
study estimates '1:hat ex-off'Cnders lower overall employment rates are
as
much as
0.8
to
0.9
percentage points. These employment losses ... impose a substantial cost on
th.e
U.S.
economy in the
fo.rm
of lost output ofgoods
and
services. In
GDP
terms, we
(CEPR)
estimate that in
2008
these employment losses cost the country
$57
to
$65
billion per
year."
However, 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-prison employment
history, education, having an in-prison job, general employment rates and opportunities in local
areas,
and
age ofex-offender.
Page
1
of3
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Economic Impact Statement
Bill 36-14, Human
Rights
and Civil Liberties ­
Fair Criminal Screening Standards
The UI study conducted a longitudinal study in order to "explore the reality offinding
employment after release from prison." The
VI
study
sampJed
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 fonner prisoners find work in the
year
after release? The survey asked
questions of the sample tvvo months after release and
eight
months after release. The survey
found:
• Two months after release, 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 successfuJ strategy for employment upon release from prison was to return
to the fomler 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 diflicult,
80
percent ofemployed respondents said their employer
knew
about
their (..'t'iminal history.
The findings from the
VI
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
The UI
study reached
the
following conclusions:
• One important finding was the particular vulnerability ofex-offenders finding
employment were those without previous work experience;
• The
hiring
process is a large hurdle for morert.'lurning prisoners;
• Restrictions on convicted persons working in certain types ofjobs impede the
process
of finding a job especially after
9111;
• A
majority ofrespondents felt that many employers did not feel comfortable hiring
.individuals
~ith
a
criminal re.cord, 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
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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 appHcants before
discovering their criminal history
has
the potential to improve job outcomes for
fonner prisoners.
The conclusions in the CEPR and VI studies show that employment opportunities for job
candidates \\lith
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 mctors 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 stQdies
confum
that having a criminal record and having
to
notify prospective
employers ofthat status will have a
high
probability of adversely impacting this population's
ability to obtain employment. Therefore, eliminating
the
notification ofa criminal record at the
initial
stages
ofemployment application may have a positive economic impact on the
target
population~
Le., ex-offenders. Even though the CEPR study estimates a significant national
economic and employment impact for the target population, there
is
no estimate for the "neC
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 acti\ity, there would,
at
best,
be an
employment substitution effect with no measurab1e 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
Hagedoorn, Finance.
Joseph
F.
Beach. Director
Department of Finance
Page 3 of3
@
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OFFICE OF THE COUNTY ATTORNEY
Isiah
Leggett
COW'lty
Executive
Marc P. Hansen
COW'lty
Attorney
MEMORANDUM
TO:
VIA:
FROM:
DATE:
RE:
Joe Adler, Director
Office of Human Resources
Marc P. Hansen
County Attorney
!lJf'JI/
f:
f3
<-/
,
Edward B. Lattner, Chief
Division of Human Resources
&
Appeals
August 11, 2014
f.j3?:;t­
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 ofany 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. TIY (240) 777-2545. FAX (240) 777-6705.
Edward.Lattner@montgomerycountymd.gov
@
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Ioe Adler
August 11,2014
Page 2
If,
within seven days of receiving the required notice ofprospective adverse action, the
applicant or employee gives the employer notice of evidence ofthe 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 ofthe 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 ofHuman Rights would be responsible for enforcement of the law.
An
applicant or employee would be able to file a complaint with the Office ofHuman Rights and
obtain an adjudicatory hearing before the Human Rights Commission.
II.
Analysis
A.
Standard of review of employer's decision
Section 27-73(a) would require an employer, in making an employment decision [adverse
action]1 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
applic~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
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.
1
As
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
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10eAdler
August 11. 2014
Page 3
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 lIRC
in
its review ofthe employer's decision. For example, can lIRC substitute its
judgment for that ofthe 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
Nerenberg v. RICA a/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 applicant's or employee's arrest
OF
conviction record, the bill could require lIRC
to give deference to
the
employer's business judgment.
The
important point
is
some standard
should be spelled out in the law to
guide
lIRC's review.
B.
Application to the county
Because the merit system laws and the County'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 ofreview.
Applicants. An unsuccessful applicant for a County position can file an
appeal
directly
with the Merit System Protection Board, alleging
that
the County's decision
was
arbitrary,
capricious, illegal, based on political affiliation, failed to follow announced examination 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 under 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
unfitnes~
to
perform the duties ofthe position held).4 For example, the personnel regulations allow an
.
employee
¥>
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
3
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
lIRC 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 ads are set out
in
Article I of Chapter 27.
But Chapter 27 sets out other requirements and prom"bitions
that
are not "discriminatory
acts."
See
Article X
("Displaced Service Workers Protection Act") and Article XI
("County
Minimum Wage"). The proln"bitions
in
BiU
36-14. which would add Article XlI ("Fair
criminal
records Screening Standards',). are not prom"bited
"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
unit
employee would
have
to
file a contract grievance under the applicable collective bargaining agreement
if
the County's action was
covered by
that
agreement. MCPR
§
34-2(c).
<4
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Joe Adler
August 11, 2014
Page
4
Bill 36-14 would provide a duplicate and parallel channel of review before HRC, wasting
County resources and raising the possibility ofinconsistent 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 upit 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).s
An
applicant or employee
alleging discrimination prohibited by Chapter 27 cannot appeal to the Merit Board, but must file
a complaint with the FIRC. 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 FIRC. Either way. bear
in
mind
that many employees
and
small
employers
will
be unaware ofthese deadlines.
D.
Exemptions
Proposed
§
27-74(b} provides that the bill does not apply to the County Police
Departmen~
or the Department of Corrections and Rehabilitation. What about the sheriff or
MCFRS?
m.
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"
sh~uld
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 the
Law
Enforcement Officers'
Sill
ofRights. MCPR 33-2(f). The collective bargajning
agreements
also
provide that
an employee
initiating
a contract grievance cliaI1enging suspension
or
removal waives
any
right
to have that action reviewed
by the
Merit Board. MCGEO
Art.
10.3; IAFF
Art.
38.17(aX7).
S
@
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Joe Adler
August 11, 2014
PageS
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 Kirklan!L Assistant CAO
James Stowe, Executive Director, HRC
Anne T. Windle, Associate County Attorney
Erin Ashbarry, Associate County Attorney
Al4-01151
M:\Cycom\Wpdocs\DOO7\P031\00381475.DOCX
@
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The Wall Street Journal, Print Edition, August 19, 2014
As Arrest Records
R,se,
Americans Find
i
Consequences Can Last a Lifetime
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 Joumal
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
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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 FB'I but not necessarily updated
there when a case is thrown out locally. Only half of the records with the FBI have fully up­
to-date information.
"There is a myth that if you are arrested and cleared that it has no impact," says Paul Butler,
professor of I'aw at Georgetown Law. "It's not like the arrest never happened."
Precious Daniels of Detroit
is
part of a class-action lawsuit against the Census Bureau alleging that tens of thousands of Ahican-Americans
were discriminated against because of the agency's use of arrest records in its hiring process.
Fabrizio Costantini for the Wall
Street
Joumal
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
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disorderly conduct, she was released on $50 bail and the misdemeanor charge was
subsequently dropped. Ms. Daniels didn't anticipate 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
of those
not
arrested
of
those
arrested but not convicted
Median
income
at age
25
Household Income below poverty line at age 2S
With high school diploma (or more)
..
.
.
-
"
,.
. .-'
,- .' .4-:11 -
.
••
..
"~.'''t-Ir-
,
. .
...-,.,...
f'-
'~I,..t
• -
-...,.~\
...
~
...
'~~~
~'
~'
....
!.;,:f
~
....
.'..1{:
'..
,;'1".-
~
•••
~
53%
With college degree (or more)
"
.:. . • ."
~
.....
.
.
:'"U.'!
...
..
~
Source: Tia Stevens Andersen of University of South Carolina's analysis of a National longitudinal
Survey of Youth
conducted
in 1997-2010
by
the
Labor 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.
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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-up from 531,706 in 1991.
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
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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 Joumal
It can be daunting to try to correct the record. In October 2012, Jose Gabriel 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.
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"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."
@
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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%-aUow 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.
"1
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 Joumal
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.
"1
was just distraught."
land School of Law School
Though she was in the top 15% of her first-year class at Cumben
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.
@
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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
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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
johl1.emshwiller@wsj.com
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;.t32.9
Dan rne DOX
:Public
(5)
Whether there is
"direct relationship"
between conviction
and job
Consider
~ature
of
~rime
and relationship
to the job
Consider nature of
offense and job
Conviction
bears
;"ralional
relationship"
to
Colorado
(2012)
~onnecticut
I
C.R.S.
§
24-5·101
Conn.
Gen. Stat.
§
460-80
Ban the Box
Public (S,
L)
I
Arrests, Expunged, Other
I
Arrests,
Expunged
I
Notification,
Copy
:(
2010)
Ban
the Box
.Public
(S, L
*
*)
Deloware
(2014)
19 Del. C.
§
711
Bon the Box
Public (S,
C)
I
Hawaii
(1998)
I
HRS
§§
378·2,
'3
78-2.5
HB 5701 and
Executive Order
Ban the Box;
Anti·
discrim ination
Ban the Box
.Prlvate
Public
(S,
C)
I
Time limit
Private
Public (S)
f"aryland
(2013)
I
Md.
State Personnel
~nd
Pensions Code
Ann.
§
2·203
151B,168·173
Minn. Stot.
§
364
I
.Bon the Box
I
Ban
the
Box
Bon
the
Box
I
~ublic
(5)
I
Private
I
Public (S, L
*
*,
C)
I
I
Time limit
position
Public (S,
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?ublic(S,
MassachuseHs
(2010)
I
M.G.L. Ch. 6
§§
I
Notification, Copy
I
Notification
:
innesota
M
(2009,2013)
I
Private
II
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*,
C)
I
i"directly
relates" to
I
Arrests,
Expunged,
Other
Nebraska
(2014)
....
_ .... _
1 ______
LB 907, Section 12
AB
1999
Ban the Box
Ban
the
Box
Bon the Box
Bon
I
Privote
q
Conviction "directly
re
I "
to emp
I
oyment
ates
New Mexico
(2010)
N.M. Stat.
§§
28·2·
1 to 28·2·6
.R.G
.
Gen. Lows
§§
.28-5-6,
28·5·7
Public (S, L
**,
C)
:p'rivate
I
A
rrests.
Oth
er
I
Notification
RhOde
Island
(2013)
the
Box
'Public
IS,
C)
*
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, mrodriguez@nelp.org
www.nelp.org/banthebox
15
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CHART OF LOCAL FAIR CHANC' POLICIES
E
s
(,
'1',iCM)"
x
1
­
I
'"I I'"
I.::,
I
,
~
\: I
J
JI (
II
(',t
It.:
I.-Jwl
x
x
x
Conlact Michelle Nalividad Rodriguez, mrodriguez@neip.org
www.nelp.org/banthebox
52
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Contact Michelle Natividad Rodriguez, mrodriguez@nelp.org
www.nelp.orglbanthebox
53
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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.
l
Contact Michelle Natividad Rodriguez, mrodriguez@nelp.org
www.nelp.orglbanthebox
54
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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 of Bill 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 form, 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
2
African-Americans and Latinos was "substantially" higher. 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 terms 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 of Bill 36-14 requires employers to provide prospective
employees with a copy of the criminal record if the employer bases an adverse action, such as
termination 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 ofthe records in the FBI's criminal
records depository are incomplete, and that no single source exists which provides up to date
information.
3
1
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)
Ibid.
3
Solomon, op.cit.
(p.48)
2
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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 ofhiring. 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 ofBaltimore and
Washington DC have enacted similar laws.
For the reasons cited above, the County Executive supports the enactment of Bill 36-14,
with amendments to address the issues raised by the County Attorney.
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Testimony before the Montgomery County Council
BiII36~14
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 retumed 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 world 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.
@
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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. This is further confirmed by the number of states, counties and
other local jurisdictions that are considering similar legislation. The bill strives to remove
one ofthe many employment barriers faced by persons with criminal records, but the bill
does not take the final employment decision out ofthe 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.
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OACtiiHi
I;
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
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.
1
1
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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
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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.orq/sites/defaultlfiles/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. orgHmed ia/leg acy/u ploadedfiles/pcs assets/201 O/ColiateralCosts 1pdf. pdf?la=en
3
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/ro
Helping Ex-Offenders Get Jobs
There are 2 goals:
1.
Help ex-offenders return to society and be productive and lawab!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 I 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.
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AMERICAN CIVIL LIBERTIES UNtON
.'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
or conviction. This makes it difficult if not impossible for individuals to obtain a job, and even
more so for former offenders to re-enter society successfully and be able to earn a living. The
Montgomery County Council should join the many other jurisdictions, including the State of
Maryland and the City of Baltimore, pass this legislation and lead the way in helping Marylanders
succeed as productive, taxpaying citizens.
In 2013, the ACLU of Maryland released a report documenting that despite comparable rates of
use, in Montgomery County Black Marylanders are more likely to be arrested for marijuana
possession than white Marylanders. ' In 2010, Blacks made up 18% of Montgomery County's
2
population, but 46% of all marijuana possession arrests. Uneven enforcement of marijuana
3
possession laws (which were amended by the General Assembly this past session
)
has resulted in
qualified applicants being denied job opportunities despite their qualifications. Under a system
proposed by 36- 14, an applicant would get a fair chance at employment, without a simple
marijuana possession arrest derailing their chance. The employer, meanwhile, would still have the
opportunity to discover the arrest and determine whether it was relevant to the job being sought.
,', / ., .
1 " '.
It is important to note that contrary to some detractors' comments, employers still have the
opportunity to discover a potential employee's criminal history. Under this bill, the employer has
more
information with which to determine an employee's fitness for ajob: rather than having a
potential employee check a box stating they had been arrested, the employer is able to discover the
history and then discuss it with the potential employee, learning the details and thus having the
information necessary to determine if this past arrest or offense should disqualify the individual.
At least 12 states and many cities throughout the country already have a 'Ban the Box' policy.4
The fact that an applicant has been entangled by the criminal justice system, by itself, should not
automatically disqualify them from obtaining employment. By allowing individuals and employers
to more fully get to know each other, more employers will hire qualified individuals, who in turn
will have a chance at gainful employment.
For these reasons we urge the Council to pass Bill 36-
J4.
ACLU of Maryland,
The Malyland War on Marijuana in Black and White
(2013), www.aclu­
md.org/marijuanaJeform.
2/d.
:; SB 364, Ch. 158,
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4
These states include California, Connecticut, Hawaii, illinois, Kansas, Maryland, Massachusetts,
Minnesota, Nebraska, New Mexico, Rhode Island and Wisconsin. The cities include Baltimore, Chicago,
Minneapolis, San Francisco, St. Paul, New York City, Philadelphia, and Seattle.
I
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THE
GREATER
BETHESDA-CHEVY CHASE
CHAMBER OF COMMERCE
7910 Woodmont Avenue, Suite 1204
Bethesda, MD 20814
T:
(301) 652-4900
F: (301) 657-1973
sta!f@bccchamber.org
www.bccchamber.org
Your Business Is
Our Only Business
Written Testimony by
Erin Allen (ConTemporaries, Inc.)
On Behalf of The Greater Bethesda-Chevy Chase Chamber of Commerce
Before the Montgomery County Council on
Bill 36-14, Human Rights and Civil Liberties - Fair Criminal Record Screening Standards
September 9, 2014
Good afternoon. My name is Erin Allen. I'm the President of ConTemporaries, Inc., headquartered in Silver
Spring. I am here today in two capacities - flrst as an officer of The Greater Bethesda-Chevy Chase Chamber
and our 600 member fI11Ils; and second, as an employer and owner of a 23-year old temporary and permanent
employment agency specializing in the placement of supplemental staff for various occupations within Federal
Government agencies and private sector companies.
Please know that the Chamber and our members are sympathetic to the concerns that have inspired the
introduction of this legislation the need to provide a fair chance for employment for those who have paid their
dues for their criminal history. We also commend the Montgomery County Department of Correction and
Rehabilitation for the successful program they have at their Prerelease and Reentry Services facility located in
White Flint.
One of our concerns regarding Bill 36-14 is the fact that when you look at individual companies and the people
they serve, numerous exceptions to this bill will need to be included. Whether it's home cleaning services,
general contractors who upgrade homes or apartments, doctors' offices whose patients could possibly include
children or elderly, restaurants who serve children and elderly ... the list can go on and on.
At this point I will be diverting from the written testimony, however I ask that you do read this next section at
the conclusion of this hearing. It outlines just what a typical business needs to go through in order to hire a
receptionist who handles money for a smaller company. This legislation will put the small business at a major
disadvantage in trying to flll many positions.
If
the box is removed from the application but the employer is
allowed to vet the question during the interview process, this gives the applicant an opportunity to be up-front
and explain their past indiscretions and why the employer should now be able to employ them without concern.
[The following is an example ofthe typical hiring practices ofthe private sector. Private sector hiring is not
the same as local, state orfederal government employers. In order to apply for a government position, the
applicant
fiUs
out an application right offthe bat. When a small business puts out an
ad
for a position, they
do not send out applications and applications are not nonnally found on their website, but rather the
employer requests that resumes be sent or emailed to them. For a general receptionist position as an
example where the receptionist handles money within their responsibilities, a company can get as many as
150 resumes. The employer then needs to cull down the list to about
5
or
6
good candidotes, who they then
OUR MISSION: Build an environment that encourages business
to
grow and prosper within a thriving Bethesda-Chevy Chase community.
OUR VISION: The Bethesda-Chevy Chase community win be regarded as the preeminent place to do business in the Washington Metropolitan Area.
OUR GUIDING PRINCIPLES: Our Chamber supports its members by providing both a voice and a forum
to
help shape public policy and enhance opportunities
for exposure, connections, and growth. Our responsibility
is
to
lead
by
example, holding ourselves
to
the highest governance plinciples, ethical standards and
business practices.
=================================================================================================================
@ ....
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ask to come in for an interview. When the candidate gets to the office for the interview, they are normally
given an application, although many small companies don't even have applications. Once the candidate
completes the application, they are then interviewed and eventually the employer narrows down the field to 1­
2 candidates. At this point, the employer will askfor
2-3
references,
and
they will then check the references,
as well as call the applicant's past employers, check on their education and do a criminal background check.
From start to finish, this process can take from a few weeks to more than a month, to replace a position
that
is currently unfilled. Ifthe current legislation is passed and an employer makes a conditional offer and then
finds out the candidate has a criminal history ofstealing and chooses not to employ the candidate, your
process for rebuttal will force the employer to start allover again because any good candidates that they
turned down by this point will have already been offered another position.]
Throughout my career I have strived to help good people find good jobs with fair pay. There are two challenges
my
firm
faces as a result of this bill. The first is the question timing and the second is that the
~
government precludes me from hiring anyone who has been convicted of a felony.
As far as timing, in addition to our application, all applicants must complete a battery of tests, several
interviews concluding with reference and background checks
before
we propose them to our clients (private
companies and federal contractors). Once the client accepts the proposed applicant then I can make ajob offer.
Many of my clients need help quickly.
If
this bill passes I wouldn't be able to help my clients if they needed a
last minute receptionist. I can't place them on the job unless I know their criminal history. So now with this
Bill
in
play I can't consider that new applicant that desperately needs a job today.
The second issue is that a felony conviction prevents me from placing even the most qualified applicants in the
majority of my jobs. We place candidates either directly or in directly on contract with the federal government.
Felons are excluded from hire in those positions.
If
this bill is passed it is imperative to add government
contractors to the ever expanding list of exceptions.
In
conclusion,
if
it is necessary to remove the box on the application which we don't encourage, we ask that the
question can be asked during the interview process so that the candidate has an opportunity to explain their
history before thousands of dollars and man hours are wasted in the process.
Finally, we encourage the County Council to consider focusing its efforts on incentivizing businesses to work
with the Department of Corrections to create ways in which criminals who are being released can be better
connected with job opportunities in the community. Thank you for your consideration of our comments today.
@
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/0
[ftr!]
Gaithersburg-Germantown
[.i[i]
Chamber of Commerce, Inc.
910 Clopper Road, Suite 20SN, Gaithersburg, Maryland 20878 (301) 840-1400, Fax (301) 963-3918
LEGISLA1"IVE ISSUE: BILL
36-14,
FAIR CRIMINAL RECORD SCREENING STANDARDS
SEPTEMBER 9,
2014
PUBLIC HEARING
While the Gaithersburg-Germantown Chamber of Commerce understands the rationale behind the
proposed Bill 36-14 addressing the Fair Criminal Record Screening Standards, there are some concerns
we would like to see addressed prior to any final legislation.
1. The primary concern is the timing of when an employer is allowed to ask the question. Waiting
until a conditional offer puts an undue burden on the employer. Hiring staff is a costly, timely
endeavor. The longer it takes to hire someone the more expensive it is and the greater the risk
that qualified candidates will find other jobs during the lengthy process. Requiring a conditional
offer be made prior to asking the candidate for the information or doing a criminal background
check on convictions is too late in the process.
RECOMMENDED REVISION: Move the restriction from the conditional offer
to
the interview stage. If
the primary purpose of the legislation is
to
allow applicants the right
to
ensure accurate records and
to
explain any extenuating circumstances, having the discussion up front is more effective
to
both
parties.
2. Allowing an applicant 7 days to respond to an employer's adverse action is too long and adds to
the cost of the hiring process. (Sec.27-73 (c)). In the hiring arena, no prospective employer
would wait 7 days to hear back from any candidate. Some responsibility must be placed on the
applicant. Assuming the applicant is aware of their own criminal record they should anticipate
the possibility of an adverse action and be able to respond much more quickly. This is even more
relevant if there has been an error in the criminal record. A reasonable applicant would want to
respond immediately.
RECOMMENDED REVISION: This should be changed
to
3
bUSiness days.
3. The proposed bill does not address what happens if information about past criminal conviction
is offered up by the applicant at any point prior to a conditional offer. Individuals with a
conviction record are often counseled to be up front about their past convictions in order to
provide an explanation as well as an assurance that past behavior will not dictate future
behavior. What happens if an applicant brings up the information and is then denied
employment - for whatever reason - what is the employer's burden of proof? There is also the
issue of trust. Most employers see trust as a critical component of any hiring decision. It is very
difficult to build a successful employer-employee relationship when the applicant has an
incentive to hide potentially pertinent information from the employer right from the get-go.
This Bill creates a perverse incentive to hide one's relevant past behavior.
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4. There is also ambiguity about what constitutes ffspecific offenses that may demonstrate
unfitness to perform the duties of the position". Some circumstances are very clear, e.g. an
employer would not want to hire a bookkeeper who has been convicted of embezzlement. But
what about a landscape company who doesn't want to hire someone convicted of burglary or
any employer who would not want to hire someone convicted of a violent act. Who gets to
decide what is best for an industry or a particular employer? What is the existing liability to an
employer who hires someone with a criminal record, ifthat individual commits another crime
on the job?
The Bill is vague as
to
what the Human Rights Commission would consider
to
be a bona fide
reason ta consider
a
specific offense that would demonstrate unfitness.
5. The size of employer impacted by this Bill is too small. Most companies of 10-30 employees do
not have a Human Resources Department or even an HR Manage. The function is typically done
by the CEO or Office Manager. The process needs to be efficient, not only because it takes time
away from running the business, but because having an open position can greatly impact
productivity. The timing of hiring decisions is much more critical in a small company. For
example, a company of 15 employees with one open position is tantamount to the County being
understaffed by 600 (conservative estimate).
RECOMMENDED REVISION: Increase the applicable employer size
to
over
SO
employees.
6. Paying damages directly to applicants creates a financial incentive for applicants to file
complaints, especially when the burden of proof is on the employer (Sec. 27-8)
RECOMMENDED REVISION: Delete the damages paid
to
the applicant.
7. It is unclear why a potential employer be responsible in any way for housing discrimination.
Having potential damages include higher housing costs from housing discrimination, seems to
be a mistake in this bill. (Sec. 27-8 (3))
RECOMMENDED REVISION: Delete any reference
to
housing discrimination.
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Testimony Regarding:
Montgomery County Council
Bill
36-14
Human Rights and Civil Liberties-Fair Criminal Record Screening Standards
by
Elise M. Ambrose
President, Elite Personnel, Bethesda, MD
To:
Members of the Montgomery County Council
I believe that I understand what the Council is trying to accomplish with this bill.
am a passionate, dedicated and committed Democrat and, if I weren't a private
employer who had to deal with the consequences and risks inherent in this bill, might
even be for it. There is no doubt that there is discrimination against criminals in the _
employment process and that is unfair to those that want to rejoin and be productive
members of society. But this bill takes the measure too far and the unintended
consequences could be very serious.
I have no opposition to taking the criminal background question off of the initial
Employment Application. It seems fair and reasonable to allow otherwise qualified
applicants the opportunity to have an in-person interview and explain themselves.
I do strongly object to the section of the bill where the question cannot be asked
until there is a "conditional offer of employment." This is wrong on many levels, firstly
and most importantly, who wants to call and rescind a job offer? What if the candidate
is convicted of a crime of violence? Who is going to protect the employees of the firm
that rescinded the offer? Most private sector employers don't have armed security in
place, like public sector employers might have.
Secondly, private employers cannot afford to do all of the complicated, extremely
time consuming, labor intensive
work
it takes to get an applicant to the "conditional
offer" stage
0
nly to find out that they have been convicted of fraud, theft, violence, child
molestation, you name it. It is absolutely essential that this question be allowed during
the interview process. Very, very few of the states, counties or localities that have
passed a similar law push the criminal background question to the conditional offer
stage. And, as a side note, in most of the jurisdictions that have passed a "Ban the
Box" measure, it is only applicable to governments and government contractors.
Thirdly, giving applicants an opportunity to profit from a claim of discrimination is
a terrible idea. I can promise you that the misuse of this tool will be enormous and will
very quickly overwhelm the county office handling it. If there is a blatant, provable,
misuse of a potential employee's background information, the County should fine the
employer. The person making the claim should not get any monetary reward. The
temptation to file frivolous claims is just way too high and will be very costly and
detrimental to employers of all sizes.
I wonder if you, as members of the County Council, have a clear view of the
legalities, liabilities and complexities of the hiring process for private sector employers.
First of all, there is a phone screen, followed by an in-person interview, then there is a
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ton of legal paperwork to manage which is hugely time consuming to process, then
there is the calling/faxing/emailing of numerous employment reference requests,
numerous times to numerous people. Do you really think it is fair for us to do all of this
work before we know if the candidate has a disqualifying (or potentially violent) criminal
record?
The hiring process is already fraught with liability and is extremely complicated
due to the varied, numerous and overlapping laws and regulations which must be
followed. Employers are on edge constantly about the changing environment - what
can and cannot be said or asked during an interview, new employment lawsuits where
the legal decisions change the hiring process
again,
the fact that the threat of potential
lawsuits has made it all but impossible to get a simple employment reference because
employers are worried about being sued by former employees. Most mid-to-Iarge size
employers will provide nothing more than dates, title and salary which makes the
reference essentially useless since it has no accompanying qualitative information. I
say this so you understand the employment environment and just how much under
siege employers feel today.
The "Ban the Box" bill does not take into consideration the nuances, complex and
extensive paperwork and timing of the pre-employment screening process and the
needs of the private sector, and in particular, my industry, staffing. Our job as a staffing
business is to determine if a candidate is suitable for employment by our clients - this is
already made infinitely harder by the great difficulty we have getting a qualitative
employment reference. The complicated process involved in deciding to "hire" or "not
hire" a candidate for a temporary, temp-to-hire or direct hire job makes it close to
impossible to have to wait until a job offer is made. Our clients expect us to have
candidates available to start work at a moment's notice. A client might call us at 5:00
p.m. and request help for the next day. We don't have the time or resources at that
hour to conduct a criminal background check. We must have the flexibility to determine
in the interview process if the candidate has a criminal background. In our case, we
have several hundred people in our database who are actively looking for work but are
not yet "employees" and therefore do not have "conditional offers of employment." They
have been through the screening process but have not yet been sent on a temporary or
temp-to-hire assignment. They only become employees when they accept a temporary
or temp-to-hire position.
Granted the staffing industry's situation is unique but we are instrumental in
getting a lot of people employed right here in Montgomery County. We help people get
through difficult times or unemployed times by offering temporary positions or we help
them get really great jobs with really great clients in the DC area.
The statistics used to describe the national support and wave of "Ban the Box"
legislation across the country are misleading. Only a handful of jurisdictions actually
ban criminal background checks from being performed until a conditional offer of
employment in the private sector. A far more common option is to remove any
questions regarding criminal history, including conviction and arrest records from the
initial employment application and allow the question during the interview process. This
is the alternative that we support and see it as the only fair option.
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The overall aim of this legislation is to enhance the employment opportunities for
people convicted ofcrimes. Allowing employers to inquire about criminal history during
the interview process affords the employer the opportunity to ask pertinent questions,
while allowing the candidate to explain their history directly to the employer. Hopefully,
this in-person interaction will decrease discrimination and increase employment. In a
technical bulletin released by the Office of Fair Practices of the Maryland Department of
Labor Licensing and Regulation, "lawful" inquiries are defined as: "Inquiries about
convictions that bear a direct relationship to the job and have not been expunged or
sealed by the courts. Consideration should be given to the nature, recentness and
rehabilitation." Again, allowing these questions during the interview affords the
candidate the opportunity to explain their history and any pertinent circumstances
surrounding any arrests or convictions directly to the employer.
(http://www.dllr.maryland.gov/oeope/preemp.shtml). While noting that recidivism and
lack of employment are significant issues among those who have criminal convictions, a
multi-pronged approach must be applied to this issue, instead of simply prohibiting
employers from asking these important questions in a timely manner.
This "Ban the Box" legislation is not as popular as advertised, nor has it often
been applied to the
private sector.
According to the National Employment Law Project
(NELP). (a major proponent of the "Ban the Box" legislation across the country), the
majority of entities that have enacted this type of a law have only applied it to local
government and local government contractors. And, far less than 5% of the