Agenda Item 7
September 9,2014
Public Hearing
MEMORANDUM
September 5, 2014
TO:
FROM:
County Council
Josh Hamlin, Legislative
~
Attorn~
SUBJECT:
Public
Hearing:
Bill 36-14, Human Rights and Civil Liberties - Fair Criminal
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, was introduced on July 15. A joint Health and Human ServiceslPublic
Safety Committee worksession is tentatively scheduled for October 9 at 2:00 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 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.
2
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.
1
While
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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
11
States
3
and over 50 local jurisdictions that have adopted some fonn 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 localjurisdictions
5
have banned the box for private employers.
The rationale for banning the box is fairly straightforward: when people with criminal
histories are denied a fair chance at employment, the entire community pays the cost in the form
of diminished public safety, increased government spending on law enforcement and social
services, and reduced government revenue in the form of lost income and sales taxes. According
to the U.S. Department of Justice's Bureau of Justice Statistics (BJS), over 92 million
Americans, roughly one in three adults, have a criminal history record involving an arrest or
conviction.
6
Additionally, according to the BJS, nearly 700,000 people a year nationwide return
to their communities from incarceration, and many are job seekers who are ready and able to
become part of the work force.
7
For these people, a steady job is a critical factor in preventing
recidivism.
8
The consequences of having a criminal record for
job~seekers
was recently
chronicled in the Wall Street Journal (see
©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
The Council of the District of Columbia is poised to enact its own "ban the box" law; Bi1l20-642, the "Fair
Criminal Records Screening Amendment Act of 20 14" 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 o/State Criminal History In/ormation Systems,
2008. Bureau of
Justice Statistics (Washington, D.C.: U.s. Department of Justice, Bureau of Justice Statistics 2009).
https:llwww.ncjrs.gov/pdffilesllbjs/grants/228661.pdf
7
Paul Guerino, Paige M. Harrison
&
William J. Sabol,
Prisoners in 2010,
NCJ 236096 (Bureau of Justice Statistics
Dec. 20) J). http://bjs.ojp.usdoi-gov/contentlpub/pdf/pl0.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.38241 O.
http://www . pac ific-gateway. org/reentry,%20employmenfOlo2 Oand%20recidivism. pd
f
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 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
I I
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
\3
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 ofthe 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.
Bruce Western and Becky Pettit,
Collateral Costs: Incarceration's Effect on Economic Mobility,
The Pew
Charitable Trusts, 2010.
http://www
.pewtrusts.org/~/mediall
mported-and-Legacy/uploadedfiles/pcs assets/201 O/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-2D 1D-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.gov/laws/guidance/upload/arrest conviction.pdf
13
"Adverse action" is defined in the bill as foHows: 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:
Bi1136-14
Legislative Request Report
Fiscal and Economic Impact statement
County Attorney Memorandum
Wall Street Journal
Article
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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)
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 brackets]]
* * *
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 unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No.
36-14
1
2
3
Sec. 1.
Sections 27-7 and 27-8 are amended and Chapter 27, Article
XII is added as follows:
27-7.
Administration and enforcement.
4
5
6
(a)
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 of the person alleged to have committed the
violation; and
(3)
any other information required by law or regulation.
7
8
9
10
11
12
13
*
(f)
*
*
14
15
16
Initial determination, dismissal before hearing.
(1)
The Director must determine, based on the investigation, whether
reasonable grounds exist to believe that a violation of this Article
or Articles X.\ [or] XI, or
XII,
occurred and promptly send the
determination to the complainant and the respondent.
17
18
19
(2)
If the Director determines that there are no reasonable grolUlds 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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36
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(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).
*
27-8.
(a)
Penalties and relief.
*
*
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
*
(2)
*
*
47
48
49
50
51
52
53
54
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
o
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BILL
No. 36-14
55
56
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
ofany discrimination prohibited under this Article.
57
58
59
60
61
62
63
(b)
Civil penalties.
(l)
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,!ID to $1,000;
for any other violation, $500.
®
ARTICLE XII.
69
70
71
*
27-71.
*
*
Fair Criminal Record Screening Standards.
Findings and Purpose; Definitions.
72
73
(ru
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
79
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 ofthe work force.
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BILL
No. 36-14
80
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.
81
82
83
84
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 by the inability of people with
criminal records to find gainful employment, are an impediment
to the County reaching its potential for economic growth.
88
89
90
91
@
Increasing employment ofpeople with criminal records improves
public safety and reduces the financial burden on government.
92
93
(hl
Purpose.
It
is the purpose of this Article to:
94
ill
ill
assist in the successful reintewtion into the workforce of people
with criminal records by removing barriers to employment; and
enhance the health and safety of the community by assisting
people with criminal records to lawfully provide for themselves
and their families.
95
96
97
98
99
100
[£}
Definitions.
As used in this Article:
Adverse action
means to fail or refuse to hire, to discharge or not
101
102
103
104
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.
Applicant
means
~
person who is considered or who requests to be
105
considered for employment in the County by an employer.
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BILL
No. 36-14
106
107
108
109
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 offor
means an offer of employment that is conditioned
110
111
solely on:
112
113
114
115
116
117
118
119
120
121
122
ill
ill
the results of the employer's later mqurry into the
applicant's criminal record; or
another contingency expressly communicated to the
applicant at the time of the offer.
Conviction record
means infonnation regarding
~
sentence arising from
~
verdict or plea of guilty or nolo contendre, including
~
sentence of
incarceration,
~
fine,
~
suspended sentence, and
~
sentence of probation.
Criminal record report
means
~
record of
~
person's arrest and
conviction history obtained from any source.
Director
means the Executive Director of the Office of Human Rights
and includes the Executive Director's designee.
Employment
means:
123
124
125
ill
ill
any work for compensation; and
any fonn of vocational or educational training, with or
without compensation.
126
127
Employee
means
~
person pennitted or instructed to work or be present
128
129
130
131
132
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
@
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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.
@)
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.
(hl
Preliminary inquiry into criminal record
In
connection with the
145
146
147
148
149
150
151
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
152
153
154
155
156
157
158
159
an arrest or conviction record or otherwise has been accused of
~
cnme.
ill
Retaliation.
An
employer must not:
ill
retaliate against any person for:
.cAl
ill)
lawfully opposing any violation ofthis Article;
filing
~
complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this Article; or
(!)
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BILL No.
36-14
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166
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168
169
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172
173
174
175
176
177
ill
27-73.
ill)
obstruct or prevent enforcement or compliance with this Article.
Employment decisions; adverse actions based
.2!!
criminal record.
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 by the applicant or held by 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:
ill
provide the applicant or employee with
record report; and
~
£QPY
of any criminal
ill
(£)
notify the applicant or employee ofthe prospective adverse action
and the items that are the basis for the prospective adverse action.
1£.
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
179
180
181
182
183
184
ill
delay the adverse action for
the information; and
~
reasonable period after receiving
ill
reconsider the prospective adverse action m
.ligb!
of the
information.
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BILL
No. 36-14
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198
199
200
201
202
203
@
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.
27-74.
Exemptions.
ill
The prohibitions and requirements of this Article do not apply if the
inquiries or adverse actions prohibited
Qy
this Article are expressly
authorized
Qy
an applicable federal, State, or County law or regulation.
(hl
The prohibitions of this Article do not
Department
or the
County
rum1Y
to the County Police
of Corrections
and
Department
Rehabilitation.
W
The prohibitions of this Article do not
rum1Y
to an employer that
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.
Effective Date.
This Act takes effect on January 1,2015.
Approved:
204
Craig
1.
Rice, President, County Council
Date
205
Approved:
206
Isiah Leggett, County Executive
Date
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LEGISLATIVE REQUEST REPORT
Bill 36-14
Human Rights and Civil Liberties
-
Fair Criminal Record Screening Standards
DESCRIPTION:
This bill would remove one of the barriers to employment facing
persons with criminal records by prohibiting inquiry by certain
prospective employers into job applicants' criminal history early in
the hiring process.
It
would also require employers to perform an
individualized assessment when making employment decisions based
on an applicant's or employee's criminal record, and allow an
applicant or employee time to correct errors in the criminal record
prior to an adverse action being taken regarding their employment.
When people with criminal histories are denied a fair chance at
employment, the entire community pays the cost in the form of
diminished public safety, increased government spending on law
enforcement and social services, and reduced government revenue in
the form of lost income and sales taxes.
To ensure that people with criminal records have a fair chance in
seeldng 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
WITIDN
MUNICIPALITIES:
PENALTIES:
Civil penalty and equitable relief.
f:\law\bills\1436 fair criminal record screening standards\lrr.doc
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ROCKVILLE, MAR)'LAND
MEMORANDUM
SeptemberJ,2014
TO:
Craig
Rice,
President~
County Council
Jennifer
A.
Hughes,
Director,
Office of Management an
Joseph F. Beach, Director, Department
ofFjnance~t(\\:
Council Bill 36-14. Human Rights and Civil
Liberties-
Fair Criminal Record
Screening Standards
FROM:
SUBJECT:
Please find attached
the
fiscal and economic impact statements for the above-
referenced legislation.
.
JAH:fz
cc: Bonnie Kirkland. Assistant Chief Administrative Officer
Lisa Austin, Offices of the County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public
Infonnation
Office
Joseph Adler, Director, Office ofHum
all
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 Management and
Budget
Naeem Mia, Office of Management
and Budget
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Fiscal Impact
Statement
Council
Bill 36·14, Human Rights and Civil
Liberties
·Fair
Criminal Record
Screening
Standards
1.
Legislative
Summary.
• prohibit certain employers from conducting a criminal background check or
otherwise inquiring into an applicant's criminal record before making a
conditional offer of employment;
• require certain employers to provide prior notice to an applicant or employee
when taking an adverse action concerning the applicant's or employee's
emplo),1nent;
• provide fur enforcement by the Office of Human Rights and the Human 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.
Inc1udes source of information, assumptions, and methodologies used.
It
would appear in most instances where similar 1egislation is in place in cities, counties
and states, significant data does not exist to estimate what
OUT
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 B()x" ordinance
in 2011 and since that time received approximately 50-75 cases. Many oftbe cases were
filed shortly after the ordinance was enacted and the agency has seen a leveling off of
complaints since
that
time. No new staiTwere hired at the beginning of their program.
1be
duties and responsibilities of the new program were absorbed by existing staff and
bave been manageable for the last four years of the program.
While
we
have no
way
ofprcdicting what
we might
anticipate
in Montgomery
County,
the Phiiadelphiaexperience suggest that we could see a fair
number
of complaints filed
early after establishing the law and then a very modest number ofcomplaints over time.
If this remains true then the number of cases could be processed 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,
reviewing and notifying applicants of their background results/status.
Any
additional
workload would be either absorbed
by
the department, or handled with temporary
workers or contractors, depending on volume.
@
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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
flat
and consistent with
current
budget projc(:tions.
Although the cost
of
any
required outreach
cannot be
estimated
at this time, the fiscal
impact of
outreach
is
expected
to be lilluted 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
if
tile bill authorizes
future spending.
Increase in the number of anticipated complaints. which could impact both HRC and
OHR.
6. An estimate of the staff time needed to implement the bill.
It
is
expected that this bill
wiU
require
all
undetermined amount of
additional
starT time in
order
to
implement, but HRC and OHR
will
utilize
existing
staff resources to absorb the
additional \vorkload.
7. An explanation of how
the
addition of new staff responsibilities would affect
other
duties.
HRC and OHR
'will
utilize
existing
staff resources to absorb the additional workload.
8. An
estimate
of costs when an additional appropriation is needed.
Additional appropriations
are
not anticipated to be needed at this time.
9. A description of any variable that could affect revenue and cost estimates.
Variables that could affect cost estimates include the cost and scope of outreach
and
possible increase
in staff
which cannot be
estimated
at this time. The number of
enforcement actions
in any
given year is
also
subject
to
wide
variability.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
For
lIRe,
although the bHl allows for damages and other equitable relief per violation,
actual relief or revenue cannot be estimated
at
this time. Furthennore, notal! enforcement
actions may
result
in complaint.:;. 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 fiscaJ impact, why tbat is tbe case.
The departments involved believe they can handle any increased workload resulting from
this legislation,. based on preliminary indications from other jurisdictions implementing
similar legislation.
12. Other fiscal impacts or comments.
Assumptions and estimates regarding revenues and expenditures are approximate onlv.
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 tbis analysis:
Jim Stowe, Director, Office ofHurnan Rights (HRC)
Melissa Voight Davis, Office of Human Resources (OHR)
Corey Orlosky, Office of Management and Budget
nifer . Hughes, Direc
Office of Management snd Budget
2/A/\4
Date
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Economic Impact Statement
nill
36-14, Human Rights and Civil Liberties­
Fair Criminal Screening Standards
Background:
This legislation would:
• prohibit certain employers from conducting a criminal background check or otherwise
inquiring into an applicant's criminal record before making a conditional offer of
employment;
• require certain employers
to
provide prior notice to an applicant or employee when
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-ojfenders and the Labor Market,
Center for Economic and Policy Research (CEPR) ­
cited herein as the CEPR study. The study is also died in Council Staff memQrandum dated July
11,2014.
Employment afler Prison: A Longitudinal
Study
ofReleases in Three States,
Justice
Policy Center,
Urban
Institute -- cited herein
as
the UI study.
The Department of Finance (Finance) reviewed the literature cited above in preparing the
economic impact statement. 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,
investment, incomes,
and
property values in the County.
2. A description of any variable that could affect the economic impact estimates.
The CEPR study estimates
"that
ex-offenders lower overall employment rates are as
much as
0.8
to
0.9
percentage points. These employment losses ... impose a substantial cost on
the U.S. economy in the form oflost output of goods
and
services.
In
GDP terms, we (CEPR)
estimate
that
in 2008 these employment 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 convit."1ion 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
employa:ble~'
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 Uberties ­
Fair
Criminal Screening Standards
The UI study conducted a longitudinal
study
in order to "explore the reality of
rmding
employment after rele.ase from prison." The UI study sampled 740 men recruited from 2002 to
2003
in Illinois and
2004
to 2005 in Ohio and
Texas. The
study focused on addressing: \Vhat
factors influence whether fonner prisoners find work in the year after release? The survey asked
questions of the sample two 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 successful strategy for employment upon release from prison was to return
to the former employer.
• In
the same two-month period, the study reports
that
although the
m~iority
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 stilI 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 criminal
hi~iory.
1be findings from the UI study are that 70 percent of the
r~"Pondents
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.
lbe VI
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 more· returning prisoners;
• Restrictions on convicted persons working in certain types ofjobs impede the process
offinding
a
job especially
after
9111;
• A
majority of re.oc;pondents felt that
many
employers did not feel comfortable hiring
individuals
~ith
a criminal record. and the study concluded that having
to
provide
criminal history information before
the
interview process eliminates many job
opportunities for fanner prisoners; and
Page 2
of3
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Economic Impact Statement
Bill 36-14,
Human
Rights and
Chil
Liberties­
Fair Criminal Screening Standards
• Giving employers the opportunity to meet and speak with job applicants before
discovering their criminal history
has
the potential to improve job outcomes for
fonner prisoners.
The conclusions
in
the
CEPR
and
VI
studies
show
that
employment opportunities
for
job
candidates
\\ith
a criminal record are more challenging than for other candidates which results
in
a lower employment for this populatioll. although
it
is llilclear
to
what degree the criminal record
as opposed to pre--criminal record employment and education factors contribute to the job hunt
challenges.
3.
The
Bill's positive or negative effect, if any
OD
employmen4 spending, saving, .
investmen4 incomes, and
property
values in the County.
Both studies confrrm that having a criminal record and having
to
notify prospective
employers of
that
status
will
have a high probability of adversely impacting this population's
ability to obtain employment. Therefore, eliminating the notification ofa criminal record at the
initial stages ofemployment application may have a positive economic impact on the target
population~
i.e., ex-offenders. Even though the
CEPR
study estimates a significant national
economic and employment impact for
the
target population, there
is
00
estimate fo.r the "nef'
impact on the overall national economy. Unless the recommended changes
in
the studies and in
BiIl36-14 result in more employment demand and economic activity, there would, at
best,
be an
employment substitution effect with no measurable economic impact on overall employment,
spending, savings, incomes, and property values.
4.
If
a Bill
is
likely to have no economic impact, why
is
that the case?
Please see paragraph #3.
5.
The
following contributed to
or
concurred with this analysis:
David
Platt
and
Rob
Hagedoom, Finam.'e.
.
,,7
.
~-,l~.~"-"'~
.......
'
Joseph
F. Beach,
Director
Department of Finance
~
_ __
Page 3 of3
@)
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OFFICE OF
THE COUNTY
ATTORNEY
Isiah
Leggett
CowUy Executive
MEMORANDUM
Marc P. Hansen
Cormty Attorney
TO:
Joe Adler, Director
Office of Human Resources
Marc
P. Hansen
County Attorney
VIA:
!l7f??I/
f;
6
..;
FROM:
DATE:
Edward
B.
Lattner, Chief
Division of Human Resources
&
Appeals
August 11,2014
eo
t;I­
,
RE:
Bill 36-14,
Human Rights
&
Civil Liberties - Fair Criminal Record
Screening Standards
I.
Summary:
Bill 36-14 is accurately summarized in Josh Hamlin's July 11,2014, introduction packet.
Bill 36-14 would prohibit an employer in the County from inquiring into, or otherwise actively
obtaining the criminal history of an applicant for a job in the County before making a conditional
offer of employment.
It
would also require the employer,
in
making an employment decision
about an applicant or employee based on the applicant's or employee's arrest or conviction
record, to conduct an individualized assessment, considering only:
specific offenses that may demonstrate unfitness to perform the duties of the
position sought by the applicant or held by the employee;
the time elapsed since the specific offenses; and
any evidence ofinaccuracy 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 ofthe 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.
TrY
(240) 777-2545 • FAX (240) 777-6705.
Edward.Lattner@montgomerycountymd.gov
@
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Joe Adler
August 11,2014
Page 2
If,
within
seven days of receiving the required notice of prospective adverse action, the
applicant or employee gives the employer notice of evidence of the inaccuracy of any item or
items on which the prospective adverse action is based, the bill would require the employer to:
delay the adverse action for a reasonable period after receiving the information;
and
reconsider the prospective adverse action in light of the information.
Finally, the bill would require an employer to give an applicant or employee written
notice of a final adverse action
within
seven days of taking the action.
Bill 36-14 exempts from its provisions inquiries or adverse actions expressly authorized
by an applicable federal, State, or County law or regulation, as well as the County Department of
Police, the County Department of Corrections and Rehabilitation, and employers providing
programs, services, or direct care to minors or vulnerable adults.
The County Office of Human Rights would be responsible for enforcement of the law.
An
applicant or employee would be able to file a complaint with the Office of Human Rights and
obtain an adjudicatory hearing before the Human Rights Commission.
II.
Analysis
A.
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 that may demonstrate unfitness to
perform the duties of the position sought by the applic?Ut or held by the
employee;
the time elapsed since the specific offenses [arrests or convictions]; and
any evidence of inaccuracy in the record.
f
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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Joe Adler
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 HRC 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 ofS. 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 to file a grievance challenging a suspension pending investigation ofajob-related
offense. MCPR
§
33-3(f). The employee may appeal this disciplinary action to the Board.
Section 33-9(c} provides that the Merit Board will not hear an appeal from an applicant or employee
alleging discrimination prohibited
by
Chapter
27;
an applicant or employee must file such a complaint with the
HRC as provided
in
Chapter 27.
See also
MCPR
§
35-2(d}. Although the Merit Board lacks jurisdiction to resolve
complaints alleging discrimination. a complaint from an applicant or employee
that
the County did not select him
for a
position. or took some other adverse action. based upon non-merit factors (e.g., an
arrest
or conviction that
does not demonstrate unfitness to perform the duties of the position sought or held)
is
not a complaint alleging
discrimination outside the Board's jurisdiction. Prolnbited discriminatory
acts are
set out
in
Article
I
ofChapter 27.
Bm
Chapter 27 sets out other requirements and prohlbitions that
are
not "discriminatory acts."
See
Article
X
("Displaced Service Workers Protection Act") and Article XI ("County Minimum Wage"). The prohibitions
in
Bill
36-14, which would
add
Article
XII
(''Fair
cr:iminal
records
Screening
Standards"), are not prohibited
"discriminatory acts."
3
A probationmy
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
~
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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loeAdler
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 of inconsistent results,
because
the actions
prohibited by the Bill are already prohibited by the County's merit system law (and possibly the
collective bargaining agreements,
too).
In
the past, the County
has
avoided such duplication of
efforts. For example, the personnel regulations provide that a bargaining 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 HRC. MCPR
§
35-2(d).
c.
Ti:ining 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 oftaking
final
adverse action based upon a prior arrest or conviction. What
if
the employer does not
provide the required notice? Again, the bill should
specify
whether the employer's failure
to
timely response effectively reverses the adverse action or perhaps precludes the employer from
offering a defense to any complaint before HRC. Either way, bear in
mind
that many employees
and
small
employers
will
be unaware ofthese deadlines.
D.
Exemptions
Proposed
§
27-74(b)'provides that the bill does not apply to
the
County Police
Departmenr or the Department ofCorrections
and Rehabilitation. What about the sheriff or
MCFRS?
ID.
Specific Suggested Amendments:
Line 95: "removing improper barriers"
Lines 161 and 162:
substitute
"basing an adverse action" for "making an employment
decision based." "Adverse action" is the teIDl
used
later in line 169. "Adverse action" is a
defined
tenD.;
"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'
Bill
ofRigbts. MCPR
33-2(f),
The collective bargaining
agreements
also
provide that an employee
initiating
a contract grievance cbaUenging suspension or removal waives
any right to have that action reviewed by the Merit Board. MOOED Art.
10.3;
IAFF Art. 38.17(aX1).
S
@
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Joe Adler
August
11,2014.
Page 5
Line 165: substitute" arrests or convictions" for "offenses."
Line 167: substitute" arrests or convictions" for "offenses."
If
you have any concerns or questions concerning this memorandum please call me.
ebl
Enclosure (bill)
cc:
Josh
Hamlin,
Legislative Attorney
Bonnie Kirkland, Assistant CAO
James Stowe, Executive Director, HRC
Anne T. Windle, Associate County Attorney
Erin Ashbarry, Associate County Attorney
Al4-0l1S1
M:\Cycom\Wpdocs\D007\P031\0038147S.DOCX
@
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The Wall Street Journal, Print Edition, August 19,2014
As Arrest Records Rise, Americans Find
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 FBI 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 law at Georgetown Law. "It's not like the arrest never happened."
Precious Daniels of Detroit is part of a dass-action lawsuit against the Census Bureau alleging that tens of thousands of Afrtcan-Americans
were discriminated against because of the agency's use of arrest records in its hiring process.
Fabrizio Costantini for the Wall Street Journal
When Precious Daniels learned that the Census Bureau was looking for temporary workers,
she thought she would make an ideal candidate. The lifelong Detroit resident and veteran
health-care worker knew the people in the community. She had studied psychology at a
local college.
Days after she applied for the job in 2010, she received a letter indicating a routine
background check had turned up a red flag.
In November of 2009, Ms. Daniels had participated in a protest against Blue Cross Blue
Shield of Michigan as the health-care law was being debated. Arrested with others for
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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
ind icates
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
t,;~ii::~1~~~;;f;~5io.y~'l~l;:
of those
not
arrested
Median income
at age
25
of those arrested
but
not convicted
IIIIII;!J
of those arrested
and
convicted
Household income below poverty line at age 25
With high school diploma (or more)
With college degree
(or
more)
Source: ria
Stevens
Andersen of University of
SOllth
Carolina's an(llysis of a National
longitudinal
Survey of
Youth conducted
in
1997~2010
by
the
Labor Department
which
studi~d
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 Waif 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%-allow candidates to explain any negative results of a check.
Mike Mitternight, the owner and president of Factory Service Agency Inc., a heating and air­
conditioning company in Metairie, La., worries that if he turns down a job applicant because
of a criminal record, he could be open to a discrimination claim. But hiring the person could
leave him open to liability if something goes wrong. "I have to do the background checks
and take my chances," says Mr. Mitternight. "It's a lose-lose situation."
John Keir says he was fired from his job after failing to mention brushes with the law on his application. Found not guilty of a recent charge.
he
says he answered truthfully.
Steve Gates
for
The Wall Street Journal
John and Jessica Keir, of Birmingham, Ala., have tried various means to combat their arrest
stigma. In 2012 the married couple was accused of criminal mischief for scratching
someone's car with a key. They were found not guilty at trial.
In January of last year, Ms. Keir, a law-school student, googled herself. "My mug shot was
everywhere," she recalls.
"I
was just distraught."
Though she was in the top 15% of her first-year class at Cumberland School of Law School
in Birmingham, she says about a dozen law firms turned her down for summer work. Since
she rarely made it to the interview stage, she feared her online mug shots played a role.
Eventually, she landed a summer position at the Alabama attorney general's office.
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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 tumed up a 1963 hit on her record, which was a
surprise to her.
Greg Kendall-Ball
for
The Wall Street Joumal
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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
john.emshwiller@wsj.com
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