Agenda Item 4A
July 15,2014
Introduction
MEMORANDUM
July 11,2014
TO:
FROM:
County Council
Josh Hamlin, Legislative Attorn
Rights and Civil Liberties - Fair Criminal
SUBJECT:
Introduction:
Bill 36-14, Hum
Record Screening Standards
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, is scheduled to be introduced on July 15. A public hearing is tentatively
scheduled for September 9 at 1:30 p.m.
Bill 36-14 would:
(1)
prohibit certain employers from conducting a criminal background check or
otherwise inquiring into an applicant's criminal record before making a
conditional offer of employment;
(2)
require certain employers to provide prior notice to an applicant or employee
when taking an adverse action concerning the applicant's or employee's
employment;
(3)
provide for enforcement by the Office of Human Rights and the Human Rights
Commission;
(4)
authorize the Human Rights Commission to award certain relief; and
(5) generally regulate the use of criminal records in the hiring process by certain
employers.
Background
The "Ban the Box" Movement
This bill would remove one of the barriers to employment facing persons with criminal
records by prohibiting inquiry by certain prospective employers into job applicants' criminal
history early in the hiring process. Similar policies or laws have been adopted or enacted in
several state and local jurisdictions
1,
most recently the City of Baltimore in May of this year.
2
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.
I
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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 onjob 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 11 States
3
and over 50 local jurisdictions 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, five states
4
and six local jurisdictions
5
have banned the box for private employers.
The rationale for banning the box is fairly straightforward: when people with criminal
histories are denied a fair chance at employment, the entire community pays the cost in the form
of diminished public safety, increased government spending on law enforcement and social
services, and reduced government revenue in the form of lost income and sales taxes. According
to the U.S. Department of Justice's Bureau of Justice Statistics (BJS), over 92 million
Americans, roughly one in three adults, have a criminal history record involving an arrest or
conviction.
6
Additionally, according to the BJS, nearly 700,000 people a year nationwide return
to their communities from incarceration, and many are job seekers who are ready and able to
become part of the work force.
7
For these people, a steady job is a critical factor in preventing
recidivism.
8
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 re,duction 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
The Council of the District of Columbia is pOised to enact its own "ban the box" law; Bill 20-642, the "Fair
Criminal Records Screening Amendment Act of2014" passed first reading 12-1 on June 3, 2014, and the Council
may take final action on the bill as early as July 14,
3
In 2013 and 2014 alone, six states enacted new "ban the box" legislation: California (2013), Illinois (2014),
Maryland (2013), Minnesota (2013), Nebraska (2014), and Rhode Island (2013).
4
Illinois, Massachusetts, Minnesota, Hawaii, and Rhode Island.
s
Baltimore (2014), Buffalo (2013), Newark (2013), Philadelphia (2011), San Francisco (2014), and Seattle (2013).
If Bill 20-642 is enacted in its current form, the District of Columbia would become the seventh local jurisdiction to
ban the box for private employers.
6
Dennis DeBacco and Owen Greenspan,
Survey ofState Criminal History Information Systems,
2008. Bureau of
Justice Statistics (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics 2009).
https:l/www.ncjrs.gov/pdffilesi/bjs/grants/228661.pdf
7
Paul Guerino, Paige M. Harrison
&
William J. Sabol,
Prisoners in 2010,
NCJ 236096 (Bureau of Justice Statistics
Dec. 2011). http://bjs.ojp.usdoj.gov/contentlpub/pdf/p 1O.pdf
8
Mark T. Berg and Beth M. Huebner,
Reentry and the Ties that Bind: An Examination ofSocial Ties, Employment,
and Recidivism,
Justice Quarterly (28),2011, pp.382-41O.
http://www .pacific-gateway
.org/reentry.
%20employment%20and%20recidivism.pdf
2
2
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support, victim restitution, and court costs.
9
Also, economists have estimated that the lower
overall employment rates of people with prison records or felony convictions cost the U.S.
economy about 0.4 to 0.5 percent of GDP in 2008, or between $57 and $65 billion.
lO
Part ofthis
cost is borne by governments
in
the form of lost income taxes, and lower sales tax revenue
resulting from reduced economic activity.
Bill 36-14
Bill 36-14 would prohibit an employer in the County from inquiring into, or otherwise
actively obtaining
11
the criminal history of an applicant for a job in the County before making a
conditional offer of employment.
It
would also require the employer, in making an employment
decision about an applicant or employee based on the applicant's or employee's arrest or
conviction record, to conduct an individualized assessment, considering only:
• specific offenses that may demonstrate unfitness to perform the duties of the position
sought by the applicant or held by the employee;
• the time elapsed since the specific offenses; and
• any evidence of inaccuracy in the record.
12
The bill would require an employer deciding to base an adverse action
13
on an applicant's arrest
or conviction record to:
• provide the applicant or employee with a copy of any criminal record report; and
• notify the applicant or employee of the prospective adverse action and the items that are
the basis for the prospective adverse action.
If,
within seven days of receiving the required notice of prospective adverse action, the applicant
or employee gives the employer notice of evidence of the inaccuracy of any item or items on
which the prospective adverse action is based, the bill would require the employer to:
• delay the adverse action for a reasonable period after receiving the information; and
• reconsider the prospective adverse action in light 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.
Bruce Western and Becky Pettit,
Collateral Costs: Incarceration's Effect on Economic Mobility,
The Pew
Charitable Trusts, 2010.
http://www.pewtrusts.orgl-/media/Imported-and-LegacyJuploadedfiles/pcs assets/20IO!CollateraICostslpdf.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-20 IO-II.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.govllaws/guidance/uploadlarrest conviction.pdf
13
"Adverse action" is defined in the bill as follows: to fail or refuse to hire, to discharge or not promote a person, or
to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or
otherwise adversely affect the person's employment status.
9
3
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Bill 36-14 exempts from its provisions inquiries or adverse actions expressly authorized
by an applicable federal, State, or County law or regulation, as well as the County Department of
Police, the County Department of Corrections and Rehabilitation, and employers providing
programs, services, or direct care to minors or vulnerable adults.
The County Office of Human Rights would be responsible for enforcement of the law.
An applicant or employee would be able to file a complaint with the Office of Human Rights and
obtain an adjudicatory hearing before the Human Rights Commission.
This packet contains:
Bill 36-14
Legislative Request Report
Circle #
1
10
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Bill No.
36-14
Concerning: Human Rights and Civil
Uberties - Fair Criminal Record
Screening Standards
Revised: July 10, 2014 Draft No.
-L
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)
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.
(2)
(3)
(4)
(5)
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8
By adding
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article XII, Fair Criminal Record Screening Standards
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
*
* *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law
by
original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unqffected
by bill.
The County Council for Montgomery County, Maryland approves the following 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
XII is added as follows:
27-7.
(a)
3
4
5
6
Administration and enforcement.
Filing complaints.
Any person subjected to a discriminatory act or
practice in violation of this Article.'! or any group or person seeking to
enforce this Article or Articles X" [or] XI, or
XII,
may file with the
Director a written complaint, sworn to or affirmed under the penalties of
perjury, that must state:
(1)
(2)
the particulars of the alleged violation;
the name and address ofthe person alleged to have committed the
violation; and
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8
9
10
11
12
13
14
15
16
17
18
19
(3)
any other information required by law or regulation.
*
(f)
(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" [or] XI, or XII, occurred and promptly send the
determination to the complainant and the respondent.
(2)
If the 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
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27-8.
(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.
(3)
If the Director determines that there are reasonable grounds to
believe a violation occurred, the Director must attempt to
conciliate the matter under subsection (g).
*
Penalties and relief.
*
*
(a)
Damages and other relieffor complainant.
After fmding 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
*
(2)
*
*
equitable relief to prevent the discrimination or the violation of
Articles X;1 [or] XI or XII, and otherwise effectuate the purposes
of this Chapter;
(3)
consequential damages, such as lost wages from employment
discrimination or a violation of [Article] Articles 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.'I. [or] XI or XII, or is necessary to eliminate the effects
of any discrimination prohibited under this Article.
(b)
Civil penalties.
(1)
In addition to any damages awarded to any person under
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65
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:
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*
(E)
*
*
for each violation of Article XII,!!l1 to $1,000;
for any other violation, $500.
®
ARTICLE XII.
27-71.
(ill
69
70
71
72
73
*
*
*
Fair Criminal Record Screening; Standards.
Findings and Purpose; Definitions.
Findings.
ill
The U.S. Department of Justice's Bureau of Justice Statistics
(BJS) estimates that over 92 million Americans, roughly one in
three adults, have
f!
criminal history record involving an arrest or
conviction.
74
75
76
77
78
ill
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 of the work force.
79
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Bill No. 36-14
80
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83
84
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 financial and general
stability of affected families and communities.
85
86
87
ill
Increased government expenditures on law enforcement and
social programs, necessitated
J2y
the inability of people with
criminal records to fmd gainful employment, are an impediment
to the County reaching its potential for economic growth.
88
89
90
91
92
93
94
95
(§)
Increasing employment of people with criminal records improves
public safety and reduces the financial burden on government.
(Q)
Purpose.
It
is the purpose of this Article to:
ill
ill
assist in the successful reintegration into the workforce of people
with criminal records
J2y
removing barriers to employment; and
enhance the health and safety of the community
J2y
assisting
people with criminal records to lawfully provide for themselves
and their families.
96
97
98
99
ff)
Definitions.
As used in this Article:
Adverse action
means to fail or refuse to hire, to discharge or not
100
101
promote
~
person, or to limit, segregate, or classify employees in any
~
102
103
104
105
way which would deprive
person of employment opportunities or
otherwise adversely affect the person's employment status.
Applicant
means
~
person who is considered or who requests to be
considered for employment in the County
J2y
an employer.
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BILL
No.
36-14
106
107
108
Arrest record
means infonnation indicating that
i!
person has been
apprehended, detained, taken into custody, held for investigation, or
otherwise restrained
Qy
i!
law enforcement agency or
military
authority
due to an accusation or suspicion that the person committed
i!
crime.
Conditional offer
means an offer of employment that is conditioned
solely on:
109
110
111
112
113
114
115
116
ill
ill
the results of the employer's later inquiry into the
applicant's criminal record; or
another contingency expressly communicated to the
applicant at the time ofthe offer.
Conviction record
means infonnation regarding
f!
sentence arising from
i!
verdict or plea of guilty or nolo contendre, including
i!
sentence of
117
118
119
incarceration,
i!
fine,
i!
suspended sentence, and
i!
sentence ofprobation.
Criminal record report
means
i!
record of
i!
person's arrest and
conviction history obtained from any source.
Director
means the Executive Director of the Office of Human Rights
and includes the Executive Director's designee.
Employment
means:
120
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127
128
129
130
131
132
ill
ill
any work for compensation; and
any fonn of vocational or educational training. with or
without compensation.
Employee
means
i!
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
o
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BILL No. 36-14
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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 information, 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.
®
Preliminary inquiry into criminal record
In
connection with the
proposed employment of an applicant, an employer must not, at any
time before
~
conditional offer of employment is made:
ill
require the applicant to disclose whether the applicant has an
arrest record or conviction record, or otherwise has been accused
of~
crime;
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.
ill
Retaliation.
An
employer must not:
ill
retaliate against any person for:
(A)
lawfully opposing any violation ofthis Article;
filing
~
ill}
complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this Article; or
G
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BILL
No. 36-14
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ill
27-73.
obstruct or prevent enforcement or compliance with this Article.
Employment decisions; adverse actions based
ill!
criminal record.
.cru
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.
(hl
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
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175
ill
ill
!£1
provide the applicant or employee with
record report; and
~
QQPY
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.
176
177
JL.
within
1
days after the employer provides the notice required in
subsection
(hl
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:
178
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184
ill
ill
delay the adverse action for
the information; and
~
reasonable period after receiving
reconsider the prospective adverse action
information.
In
ligb!
of the
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W\BILLS\1436 Fair Criminal Record Screening Standards\BiII 4.00c
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BILL
No. 36-14
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27-74.
@
Within
1
days after taking final adverse action based on the arrest or
conviction record of an applicant or employee, an employer must notify
the applicant or employee ofthe
final
adverse action in writing.
Exemptions.
The prohibitions and requirements of this Article do not
!ru
rumlY
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
®
The prohibitions of this Article do not
Department
or
the
County
rumlY
to the County Police
of Corrections
and
193
194
Department
Rehabilitation.
(£)
195
196
The prohibitions of this Article do not
rumlY
to an employer that
provides programs, services, or direct care to minors or vulnerable
adults.
27-75.
197
198
199
200
201
202
203
Enforcement.
A person aggrievedQy 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.
204
Craig L. Rice, President, County Council
Date
205
Approved:
206
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 IMP ACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Civil penalty and equitable relief
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