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COUNCIL OF THE DISTRICT OF COLUMBIA COMMITTEE ON THE JUDI CIARY AND PUBLIC SAFETY COMMITTEE REPORT 1350 Pennsylvania Avenue, NW, Washington, DC 20004

TO:

FROM:

All Councilmembers

Councilmember Tommy Wells, Chairperson~ Committee on the Judiciary and Public Safety

DATE: May 28, 2014

SUBJECT: Report on Bill 20-642, the "Fair Criminal Records Screening Amendm.ent A4 of 2014"

The Committee on the Judiciary and Public Safety, to which Bill 20-642, the "Fair Criminal Records Screening Amendment Act of 2014" was referred, repotts favorably thereon with amendments, and recommends approval by the Council.

CONTENTS

I. Background And Need ........... .. .. ..... .................... .. .. ..... ..... ....... .. 1 II. Legislative Chronology ............................................................ 11 III. Position Of The Executive ........... .... ........... .... ......................... 11 IV. Comments Of Advisory Neighborhood Commissions ............ 12 V. Summary Of Testimony and Statements .... ............................ .12 VI. Fiscal Impact ............................................................................ 18 VII. Section-By-Section Analysis ................................................... 18 VIII. Committee Action ... ............................... .... ....... ....................... 19 IX. Attachments ... .. ........................................................................ 20

I. BACKGRO UND AND NEED

INTRODUCTION

Bill 20-642, the "Fair Criminal Records Screening Amendment Act of 2014" was introduced on January 7, 2014 by Councilmembers Wells, Barry, Bowser, Bonds, Orange, McDuffie, Graham, and Chairman Mendelson, and co-sponsored by Councilmembers Grosso, Alexander, and Evans. On February 10, 2014, the Committee on the Judiciary and Public Safety held a public hearing on the bill. A summary of the testimony provided at the hearing, as well as other submitted statements, is found below in section V.

Bill 20-642 would remove unfair barriers to employment for individuals with criminal records. Specifically, this legislation, as amended, would proh~bit employers from making any criminal history inquiry until after the first interview. The Committee made several amendments to the introduced bill, outlined in detail below.

Con1mittee on the Judiciary and Public Safety Report on Bill 20-642

BACKGROUND

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Over the past few decades, there has been a significant increase in t11e number of A1nericans who 11ave had contact with the cri1ninal justice syste1n. 1 Betvveen 1974 and 2001, the number of former prisoners living in the U11ited States more than doubled, from 1,603,000 to 4,299,000. The United States now 11as the 11igl1est rate of incarceration in the world.2

There is no question that t11e "War on Drugs" is tl1e si11gle most significant factor co11tributing to these increases. Between 1985 and 2000, drug offenses alone accounted for tvvo­thirds of the rise in the federal inmate population and more tl1an 11alf of the rise in state prisoners.3 Tl1ere are more people i11 prisons and jails today for drug offenses than there were incarcerated for all reasons in 1980.4

In each year from 2009 tlrrough 2011, drug arrests accou11ted for just under 20 percent of all Metropolitan Police Departn1ent arrests - about one out of five an·ests i11 the city.5 Over this san1e three-year period, 63 percent of drug mTests were for simple possession charges,6 and 46.9 percent of drug arrests were for marijuana. 7 In 2010 alone, law enforcerne11t officers in the District made a total of 5,393 marijuana arrests - nearly 15 arrests a day - for a drug that is thought to be less harmful tha11 tobacco and alcohol. 8

Arrests in this city, l1owever, have not been distributed evenly runong all District residents. The ce11tral role tl1at race plays i11 our crimi11a1 justice system caru1ot be ignored. 9 In the District of Colun1bia, n1ore than 80 percent of the 142, 191 arrests that occurred betvveen 2009 to 2011 were of African Arnericans. 10 In 2010 alone, there were 40,353 arrests of adult African American Washingto11ians, wl1icl1 is eqt1ivalent to 17 percent of the total nu111ber of adult African

1 See Tho1nas P. Bonczar, Bureau of Justice Statistics, U.S. Department of Justice, Prevalence oflmprisoninent in the U.S. Population, 1974, 2001, p. 3 (2003). 2 Jn Germany, 93 people are in prison for every 100,000 adults and children. In the United States, the rate is roughly eight times that, or 750 per 100,000. PEW Center on the States, One in 100: Behind Bars inA1nerica 2008, PEW Charitable Trusts, 2008, p. 5; see also "Incarceration,"' The Sentencing Project, 2012, available at http://\V\VW.sentencingproject.org/template/page.cfin?id= I 07. 1 See Marc Mauer, Race to Incarcerate, The New Press, 2006, p. 33. 4 Testhnony of Marc Mauer, Executive Director of the Sentencing Project, Prepared for the I-louse Judiciary Subcom1nittee on Cri1ne, Te1Torism, and I-Iomeland Security, l 1111 Cong., Hearing on Unfairness in Federal Cocaine Sentencing: Is It Tin1e to Crack the JOO to I Disparity? May 21, 2009, p. 2. 5 Washington La\vyers' Committee for Civil Rights and Urban Affairs, "Racial Disparities in Arrests in the District of Columbia, 2009-2011," July 2013, p. 13. 6 Id. at p. 13-14. 7 The American Civil Liberties Union, "Behind the D.C. Nu1nbers: The War on Marijuana in Black and White," p. 4. 8 Id.; see also, Com1nittee Report on Bill 20-409, the "Marijuana Possession Decrin1inalization Amendment Act of 20 14," available at http://li111s.dccounci!.us/_layouts/l5/uploader/Download.aspx?legis!ationid=29565&filenan1e=B20-0409-Co1n1niUccReportl .pdf. 9 Written Testhnony of Ari Wcisbard, Esq., Deputy Director, D.C. Employ1nent Justice Center, p. 2. iu Washington Lawyers' Com1nittee for Civil Rights and Urban Affairs, "Racial Disparities in Arrests in the District ofCohunbia, 2009-2011," July 2013, p. 2.

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An1erican reside11ts. 11 Give11 t11e racial disparities i11 arrests, it sl1ould be no surprise tl1at African Americans co1nprise approximately 90 percent of all inmates in t11e District's corrections facilities. 12

Increased Numbers of Individuals \Vith Criminal ltecords

1'11e l1arrn to our city caused by arresting and incarcerating so mm1y of our residents is co111pou11ded by t11e fact tl1at every individual who is arrested or convicted of a crllne will have a criminal record that persists long after a criminal sentence is served. It is estin1ated that approxin1ately 92.3 inillion people in the United States have a state criminal record, 13 with approxi1nately 14 million additional arrests recorded each year. 14 In tl1e District of Columbia alone, it is esti1nated tl1at approxin1ately 60,000 people l1ave a criminal record - about 10 percent of the current population. 1) The number of District residents witl1 a criminal record is increasing, as 8,000 people return to the District of Columbia eacl1 year after serving a sentence in priso11 or . ·1 16 Jai .

A criminal record functions as a label tl1at, once affixed, stibjects an individual to a life~ long stigma. 17 While being labeled an "offe11der" or "felon" is itself a form of ptmishment, having a criminal record becomes particularly problematic whe11 seeking e1nployn1ent, especially given the increased use of criminal backgrou11d checks in employment.

Criminal Background Checks in Employment

Hiring e1nployees can be an arduous and often costly process for employers, who must identify at1d select the best candidate for each positio11. Employers use a rru1ge of methods in order to obtain informatio11 about job applicants, incltiding requesting a resume, calling referc11ces, and conducting an ii1terview. Even after taking tl1ese steps, many employers admit to basing hiring decisions on a "gut feeling" about ca11didates. 1

& With e1nployers seeking nlore informatio11 about applicants, cri1ninal background cl1ecks have become an attractive tool for screening and differentiating applicants. 19 One corrunon explanation for the increased use of background checks is that employers want to assess the risks to their assets and reputatio11s posed

1l Id. 12 DC Dcpart1nent of Corrections Facts and Figures, April 2014, available at http://doc.dc.gov/sites/defaultJfilcs/dc/sites/doc/pubtication/attachments/DCo/o20Depart1nent%20ofU/o20Corrections o/o20F actso/o20n%20 Figureso/o20April%2020 l 4. pdf. 13 U.S. Bureau of Justice Statistics, S11rve;' o_(Slale ('rinlinal Ifisto1)' !11(or111alion Syslen1s, 2008 (Oct. 2009), at 1·ablc I. available at https://W\V\v.ncjrs.gov/pdffiles l/bjs/grants/22866 I .pdf. 14 Federal Bureau of Investigation, Crilne in the United States, September 2008, available at WW\v. tbi.gov/ucr/cius2007. 15 Council for Court Excellence, Unlocking En1ployn1ent Opportunity for Previous!)' Incarcerated Persons in the District ofColun1bia, 2011, p. 7. 16 Id. 17 Megan C. Kurlychek, Robert Bran1e, and Shawn D. Bushway, Scarlet Letters and Recidivisn1: Does An Old Cri111inal Record Predict Future Offending? p. 3, available at http://www.reentrycoalilion.ohio.gov/docs/Bushway­ScarletLetters&CrimRecs-06.pdf. 18 Philip Moss and Chris Tilly, Stories E111p/0;1ers Tell: Race, Skill, and Hiring in An1erica, 2001, p. 209. 19 Einployers can obtain criininal histo1y records from a wide variety of sources, including cou1t records, law enforcement records, registries, state criminal record repositories, and the Interstate Identification Index.

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by placit1g individuals witl1 criminal histories in certain positions. Anotl1er common explanation is that e1nployers fear being held liable for failing to exercise due dilige11ce in deter1nining whether an applicant poses an um·easonable risk to otl1er en1ployees or t11e public. The Council has already addressed tl1is fear, however, by passing legislation that limits the liability of e1nployers who hire returni11g citizens, so long as the 11iring decisio11 was made in good faith in ligl1t of seve11 statutory factors. 20

The use of backgrom1d checks in employ1ne11t is becomi11g inore co1nmo11,21 despite research i11dicating tl1at crin1inal convictions are a poor predictor of cotmterproductive work bel1aviors.22 The use ofbackgro11nd cl1ecks i11 hiring is also troubling given that tl1ese records are often ti1nes irrelevant to t11e position advertised. Tl1e possession of an arrest record, for exan1ple, does 11ot necessarily i11dicate that someo11e has ever engaged in cri1ni11al conduct, as many i11dividuals who are arrested are never charged and 1nft11y otl1ers are acquitted of any wrongdoing at trial.23 Similarly, some convictions are so unrelated to the job being sougl1t, whether dire to tl1e

20 Section two of the Returning Citizen Public Emp!oytncnt Inclusion Ainendment Act of2010, effective June 15, 20 l3 (D.C. Law 19·3 l 9; codified in scattered cites in the D.C. Official Code), provides:

"Information regarding a cri1nina! history record of an e1np!oyee or a fonner employee shall not be introduced as evidence in a civil action against an employer or its employees or agents ifthat information is based on the conduct of the employee or fOnner e1nployee, and if the e1nployer has made a reasonable, good· faith determination that the following factors favored the hiring or retention of that applicant or employee:

(1) The specific duties and responsibilities of the position being sought or held; (2) The bearing, if any, that an applicant's or en1ployee's criminal background will have on the applicant's or employee's fitness or ability to perfonn one or more of the duties or responsibilities related to his or her employ1nent; (3) The time that has elapsed since the occurrence of the crilninal offense; (4) The age of the person at the time ofthe occun·ence ofthe criminal offense; (5) The frequency and seriousness of the criminal offense; (6) Any inforn1ation produced regarding the applicant's or employee's rehabilitation and good conduct since the occurrence of the crhninal offense;

'"'d (7) The public policy that it is generally beneficial for persons \Vith cri1ninal records to obtain e1nploy1nent.

21 See Society tOr I :I um an Resources Managernent, Background Checking: Conducting Crilninal Background Checks (Jan. 22, 2010), p. 3 (noting that approxin1ately 92'Yo of1nen1bers -which were mostly large en1ployers - perfonn cri1ninal background checks on so111e or all job candidates). 22 Researchers have suggested a nun1ber of possible explanations regarding why there see1ns to be no real connection between an applicant's critninal history and the likelihood the applicant will 1nisbehave at work. One potential explanation is that being caught and convicted for a crime may act as a "preventative buffer" against future misconduct. In other words, the applicant learned her lesson. A second possible explanation is that the fear of!osing one's job is greater for those with a cri1ninal record, \Vhich leads these individuals to be n1ore careful on the job to avoid getting fired. A third explanation is that crin1ina! convictions are an inaccurate indicator of illegal behavior, given that 1nany crimes go undetected. This could ilnply that people who engage in criminal activity, but are smart enough to avoid being caught are also better able to negotiate job offers, whereas individuals who arc caught spend less tin1c employed, and as a result have less oppo1tunities to engage in counterproductive work behavior. Brent W. Roberts, Peter D. Hartns, Avshalom Caspi, Terri E. Moffitt, "Predicting the Counterproductive Employee in a Child· to·Adult Prospective Study," 1'v!anage1nent Department Faculty Publications (2007), paper 45, p. 1434, available at http://digitalcomn1ons.unl.edu/manage1nentfacpub/45. 23 See Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. E1nployment Justice Center, p. I (noting that "about half of all arrests do not lead to convictions"); see also U.S. Bureau of Justice Statistics, Felony Defendants in large Urban Counties, April 2008), available at http://\VW\V.bjs.gov/content!pub/pdf/fdluc04.pd[

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nature of the offense or tl1e a111ount of tiine that 11as passed si11ce the offense, that consideration of the conviction record ca11 serve no legitimate business reaso11. In addition, crin1inal background checks are know11 to contain inaccuracies.24 Studies show that even when criminal records are sealed or expunged by court order, tl1e court cannot guarantee that all private co1npanies will also erase sucl1 inforn1ation from their systems.25

Furtl1ermore, the increased use of cri1ninal background checks tlu·eatens the District's public safety by disco1rragi11g the employn1ent of returning citizens, thereby increasing recidivism rates. Tl1e use of background cl1ecks creates a Catch-22 for returning citizens, where fii1ding employment is key to successfully reentering society,26 but finding employ111ent is difficult, if not i1npossible, once 011e has a criminal record.27 Within three years of being released from jail or prison, about 50 percent of returning citize11s will reenter the cri1ninal justice syste1n, and whether or 11ot a returni11g citizen can find employn1ent is one of the best predictors of

·a· . 2s rec1 1v1sm.

Criminal records create significa11t barriers to reenteri11g society tl1at can persist long after a criminal sentence 11as been served. Once an individ11al has a criminal record, they can be subjected to legal discriminatio11 in employment, 11ousi11g, credit, m1d educatio11. As a result, approxin1ately half of returning citizens in the District are unemployed.29

The Com1nittee received testi1no11y from a number of previously incarcerated individuals who 11ad been denied en1ployment atitomatically because of their crimi11al l1istory. For example, Alisha Carrington, the Lead Violence Prevention Outreach Facilitator at Free Mi11ds Book Club and Writing Workshop, stated "I also soon learned that secttring even the most entry level retail and food service positions would be all bttt in1possible. 011ce Free Minds men1bers check t11e felony box we check off hope because we quickly find out no 011e wants us. Feeli11g sl1ut out from en1ployment makes the pain and stigma of mistakes n1ade when we were so young feel like a 'life sentence."' Sin1ilarly, Sherman Justice, a public witness, noted that even tl1ot1gl1 he served his ti1ne, he basically has to keep re-serving each time he checks the box on a job application.

Another witness, Jan1cs White testified that when he tried to get a job in maintenance at a local university, tl1e hiring agent "watched [him] as [he] filled out tl1e application" and "[w]l1en

2~ The United States Depa1iment of Justice, 111e Attorney General's Report on Crin1inal Histo1y Background Checks, June 2006, p. 40, available at http://www.justice.gov/olp/ag_bgchecks_report.pdf. 25 SEARCll: The National Consortium for Justice Information and Statistics, Report of the NaNonal Task Force on the Con1111ercial Sale ofCri1ninal Justice Record Infor111ation, 2005, p. 83, available at http://w\vw.scarch.org/files/pdf/RNTFCSCJRI. pdf. 16 Written Testitnony of Marina Streznewski, DC Jobs Council, p. I ("The single biggest hurdle to successful re¥ entry into society that returning citizens face is finding a legal job. Those who don't find jobs are twice as likely to be re-incarcerated."). 27 A 200 I survey of 600 en1ployers in Los Angeles County found that 40 percent of these employers \VOUJd not be \.Villing to hire an applicant with a criminal record, and that only 20 percent of these e1nployers had hired at Least one applicant \Vith a cri1nina! record. Hozer, Hany J., Raphael, Steven, and Stoll, Michael, "How Willing Are En1p\oycrs to Hire Ex-Offenders," Vol. 23, No. 2 (Summer 2004). 2a Id. 29 In 2011, the Council for Court Excellence undertook a study of more than 550 returning citizens in the District of Columbia, and found an uneinployment rate of 46 percent. Council for Court Excellence, Unlocking Employ1nent Opportuni!J' for Previously Incarcerated Persons in the District ofColun1bia, 2011, p. 9.

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[heJ checked the box that indicated that [l1eJ 11ad a crimit1al record, she immediately took t11e application and said that [he] wottld not be l1ired."30 Despite Mr. WI1ite's strong recon1mendatio11s from a former ernployer, Mr. White \Vas "somehow too dangerous to clean floors."31 Mr. Wl1ite's testimony clarifies that high unemployment rates of returni11g citizens is, in large part, a result of UI1fair hiring practices that automatically disqualifies individuals with criminal records. This proble1n is not unique to Mr. White or tl1e District of Columbia, and cities and states arom1d the country have developed i11novative solutions to address these probletns.

A Solution: Ban the Box

Over the past decade, jurisdictio11s across the cou11try have joi11ed a growing movement known as "ban the box." Ban the box refers to laws that seek to prohibit the use of a box on job applications tl1at asks applicants to indicate whether they have a crin1inal record. "Tl1e box" con1monly appears on applications and is ofte11 used to disqualify applicants \Vith crimi11al records - as happened with Mr. Wl1ite - because it offers a quick tool for employers to screen m1d differentiate applicants. Realizing the harn1 caused by automatically disqualifying applicants with criminal records, more than 60 jurisdictio11s across the cotmtry have enacted legislatio11 to prohibit e1nployers from aski11g about an applicant's criminal history on the application, or even during the initial stages of the hiring process.

I·Iawaii was the first state to ban the box in 1998, starting a movement that has grown significa11tly in the past few years. Tl1ere are novv 10 states and more than 50 cities and counties, nation,vide, that l1ave passed so1ne forrn of "bm1 tl1e box" legislatio11. Ban tl1e box legislation varies greatly between different jurisdictions, but all share tl1e goal of removing barriers to e1nploy1nent for individuals \Vith c1in1inal records. To date, the n1ajority of tl1ese ban the box laws apply only to public or gover11ille11t employers.

In 2010, tl1e Council passed tl1e "Rcttu·ning Citizen Public E111ployrnent Inclusion An1endinent Act of 2010,"32 whicl1 establisl1ed procedures governing how and when the District gover1une11t may investigate tl1e cri1ninal background of applicants seeking employment with the governn1ent. Specifically, tl1is law prol1ibits, for certain "11on-covered positions," public employers from investigating an applicant's criminal 11istory until after t11e initial scree11ing of applications.33 Since passing the Returning Citize11s Public Employme11t Inclusio11 Act of2010, tl1e Office of Hu111an Resources fou11d that 76 percent of applicants witl1 a criminal record were still suitable for government employment. Without ban the box legislation in place, these applicants would likely have been disqualified.

30 Oral Testimony of Jan1es White. 31 To111111y Wells' "Ban the Box" Bill Gets Strong Support, Washington Examiner, February 10, 2014, available at http://washingtoninformer.com/ne\vs/20 14/fe bl I O/to1n1ny·wel ls-ban-the-box -bi! I-gets-strong -support/. 32 The Returning Citizen Public Employment Inclusion Amendment Act of2010, effective June 15, 2013 (D.C. Law 19-319; codified in scattered cites in the D.C. Official Code). 33 The Returning Citizen Public Employment Inclusion Amendment Act of2010, effective June 15, 2013 (D.C. Law t 9-319; codified in scattered cites in the D.C. Official Code), categorized positions as either "covered" or "not covered." The law defines "covered position" as a position in which a criminal background check is required by law.

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Based 011 the success of banning the box for public employers, some jurisdictions have expa11ded ban t11e box legislatio11 to apply to all employers, including those in the private sector. So far, 10jurisdictions11ave banned the box for private employers,34 with additio11aljurisdictions expected to pass similar legislation tl1is year.

Although the Com1nittee received some testimony in oppos1t1on to Bill 20-642, the Committee received no testimony indicating that ban the box legislation in other jurisdictions has been unsuccessful or otherwise harn1ful to businesses. Given that the ban the box movement started more t11an fiftee11 years ago, tl1e total absence of evidence i11dicating that such laws have been ineffective is telling, especially when considered in contrast to the growing body of research, cited in this report, indicating the benefits of these laws.

Tl1e vast majority of witnesses at the public 11earing on Bill 20-642 testified in support of tl1e legislatio11. These witnesses noted the many benefits of adopting policies, such as those contained in Bill 20-642, that encourage tl1e 11iriI1g of returning citizens. As some witnesses pointed out, the benefits of this legislation accrue not just to returning citizens, but society as a whole -- as hiring returni11g citizens promotes public safety by reducing recidivism.35 Studies have showi1 that einployn1e11t increases the amount of time that previot1sly incarcerated persons spend crime-free before retur11ing to prison,36 and that reducing tl1e period of unemfloyment of returning citizens by three mo11ths would decrease recidivism rates by 5 percent.3 While this legislation will help individuals with criminal records find employment, the entire District stands to benefit if this bill is passed.

COMMITTEE REASONING

Arrest Records

For purposes oftl1is legislation, "arrest" n1elli1s "being apprehended, detained, taken into custody, l1eld for investigatio11, or restrained by a law ei1force1nent agency due to an accusation or suspicion that the person con1mitted a crime." The con1mittee print, like the introduced version of the bill, prohibits employers from niaking any inquiry about lli1 applicant's prior arrests. As discussed above, the consideration of an applicant's arrest record is prol1ibited because tl1e mere fact that an individual was arrested is 11ot proof that he or she engaged in cri1ninal co11duct. Furll1er1nore, sucl1 a prol1ibition appropriately reflects our society's strong belief that people are innocent u11til prove11 guilty. The Committee did not receive testimony opposed to the bill's provisions relating to arrests, and even orga11izations that testified in opposition to Bill 20-642 indicated sttpport for these provisions.38

34 4 states (Massachusetts, Minnesota, Ha\vaii, and Rhode Island) and 6 cities (Seattle, Buffalo, Philadelphia, San Francisco, Balti1nore, and Newark). 35 Council for Cou1t Excellence, Unlocking E1nployn1ent Opportunity for Previously Incarcerated Persons in the District ofCol11111bia, 2011, p. 8. 36 John Schmitt and Kris Warner, Ex-Offenders and the Labor 1\farket, Center for Economic and Policy Research, November 20 I 0, available at http://\V\Vw.cepr.net/docu1nents/pub!ications/ex-offenders-2010-11.pdf. 37 Jeremy Travis, But The;' All Co111e Back: Facing the Challenges of Prisoner Reentry, Urban Institute Press, 2005. 38 Written Tcstin1ony of Kathy E. l-lollingcr, President and CEO, Restaurant Association Metropolitan Washington (RAM\V), p. I ("RAMW unequivocally agrees \Vith the provision ofthe bill, which prohibit the use of arrest records

Committee 011 t11e Judiciary and Ptiblic Safety Report on Bill 20-642

Conviction Records

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For purposes of this legislation, "conviction" n1eans "any sentence arising from a verdict or plea of guilty or nolo conte11dere, including a sentence of incarceration, a suspended sentence, a sentence of probation or a sente11ce of unconditio11al discl1arge." Bill 20w642 would not prohibit e1nployers fTon1 asking applicants about prior criminal convictions, which are more probative of criminal behavior tl1m1 arrest records. Rather, the committee priI1t prohibits en1ployers from asking about crimi11al convictions until after tl1e first i11terview. Discussions regarding an applica11t's crimi11al convictions sl1ould be delayed i11 this manner for a nun1ber of reasons.

Delayi11g sucl1 questions is necessary to ei1sure tl1at applicants are not automatically disqualified based solely on a checkmark, and i11stead are considered on an i11dividual basis. Banning the box for the District governme11t demo11strated that most individuals with criminal records are determined to be suitable for employment once the employer learns more about the applicant. Delaying questions abo1it criminal convictions also gives the applicant the chance to correct an inaccurate criminal record or to explain the circumstm1ces that led to his or her arrest. Resem·ch confinns that personal co11tact plays ai1 i1nportru1t role in mediating the effects of a criminal record on the hiring process.39 Applicants who l1ave tl1e opportunity to interact with the employer were between four and six tiines n1ore likely to receive a callback or job offer than tl1ose wl10 do not. 40

Wl1ile criminal records have negative i1npacts on en1ployment prospects, some en1ployers are willing to look beyond the record, or to doWI1play its significant in tl1e context of other information acquired during the interview. E1nployment prospects i1nprove significantly for applicants who have a cl1ance to interact witl1 tl1e l1iring manager, and more so among those who are able to elicit sympatl1etic responses in tl1e course of tl1ose i11teractions.41 "The box" misguides employers by 11ot letting employees witl1 talent address their cri1ninal history. Only by delaying q11estio11s about criminal convictions \Viii this legislation achieve its purpose of allowing applicants to get a "foot in tl1e door" so tl1at they can inake their case to the hiring 1nanager.

As introduced, Bill 20w642 delayed inquiry i11to an applicai1t's conviction record u11til after the applicant has received a co11ditional offer of en1ployn1ent, wh.icl1 isolates the consideration of the criminal record, allowing an applicant to know with certainty why he or she was not l1ired. Of t11e nine jurisdictions that 11ave "banned the box" for private employers, three of those jurisdictions prol1ibit cri111inal record i11quiries before tl1e applicant is given a co11ditio11al offer of e1nploy1nent.42 During and after the public hearing on Bill 20w642, tl1e Committee received testi111ony s11ggesting that the bill be an1ended to allow employers to ask about an

in 1naking employment decisions. The presumption of innocence, so i1nportant in our society and culture, should certainly extend to employment matters."). 39 Devah Pager, Bruce Western, Nao1ni Sugie, Sequencing Disadvantage: Barriers to EmplOJ'lllent Facing Young Black and White Men with Crin1i11al Record, May 2009, p. 5. 4o Id. 41 ld. at p. 7-9. ·12 Balthnore, Newark, and 1-Iawaii.

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applica11t's cri1ninal record earlier in tl1e l1iring process.43 A number of organizations expressed concen1 tlmt requiring employers to wait until a conditional offer of employn1ent is extended was too burdenso1ne 011 employers, wl10 would be required to go through the entire hiring process before lear11ing oftl1e applicant's conviction record.44 Employers would then need to restart the hiring process at a time wl1c11 previous applicants may no longer be interested in the position. In addition, requiri11g employers to wait until a co11ditional offer would also be unfair to applicants, wl10 may receive a job offer, 011ly to have it take11 away once the employer lean1ed about their cri1ninal co11viction.45

The Committee agrees witl1 tl1is testin1ony and concludes that employers should be able to ask about a job applicant's cri1ninal convictions after the first interview. This amendment strikes the right balru1ce between protecting job applicants from auto1natic disqualification and asking e1nployers to go through the e11tire hiring process before asking abo11t criminal convictions.

Enforcement of B20-642

If a job applicant believes that an employer has violated Bill 20-642, he or she can file an administrative co1nplaint with the Office of Hun1an Rigl1ts.46 Tl1is administrative remedy is exclusive and no person sl1all have a private cause of actio11 based on a violation of this legislation.47 At the public 11eari11g on Bill 20-642, a nu1nber of witnesses suggested tl1at the bill be an1e11ded to provide a private right of action, so that applicants can defend their rights in court.48 A private right of action \Vas included in the last ban the box bill considered by tl1e Council, but this provisio11 was strongly criticized and ultimately removed, by a unanimous vote,

43 Written Testin1ony of Kathy E. Hollinger, President and CEO, RAMW, p. 3 ("RAMW and its men1bers favor an approach that provides protection to applicants, but allo\vs employers the ability to make an inquiry earlier, at the intervie\v stage ... "); Submitted Written Testimony of Barbara Lang, DC Cha1nber of Commerce, p. 2-3 ("The current legislation goes to the furthest end of the spectnun (conditional offer of employment) with relation to the phase of the hiring process that an employer may conduct a background investigation. We prefer the more co1nmon approach, which allows the e1nployer to conduct a check after the first interview of initial screening process instead of after a conditional offer."). 44 Subn1itted Written Testimony ofSolon1on Keene, Jr., President, Hotel Association of Washington, D.C., p. 2 ("It would be truly burdensome to have staff interview these applicants and offer en1p!oyment, only to find out after an offer of e1nployment is 1nade, and a background check is paid for, that the applicant cannot be hired due to his or her prior conviction that 1nay pose a risk ofharm to guests or the hotel. The staffn111st now repost the position and start the application process all over again to find a qualified candidate."). 45 Subn1itted Written Testi1nony ofS0!01non Keene, Jr., President, Hotel Association of Washington, D.C., p. 2 ("It is unfair to the applicant to tell them they have a job, only to have to rescind the job offer once a background check is run and a previous conviction that \vould pose a risk to either the guests or the hotel is discovered."); see also, "Mayor needs to get involved in 'ban the box' fight," The Baltimore Sun, April 25, 2014 ("[W]e're not sure how it benefits the ex-offender to have a job offered and then yanked away."). 46 Co1nplaints filed under this legislation \Vill be adjudicated pursuant to the powers and procedures set forth in sections 301-312, 314-315, and 317 of the Human Rights Act of 1977. '17 Of the ten jurisdictions that have "banned the box" for private employers, only Buffalo, New York has provided a ririvate cause of action. 8 Written Testiinony ofMarina Streznewski, DC Jobs Council, p. 3 (suggesting the addition of"a limited private

right of action so complaints can have the opportunity for a full hearing in court, including discovery of relevant etnployer docu1nents and the opportunity to cross-examine witnesses").

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at inark-up. 49 By providing adn1i11istrative re111edies, the committee print holds employers accountable for unfair hiring practices, while not encouragi11g litigation that cru1 be costly and difficult for non-lawyers to navigate.

This bill authorizes the Co1nn1issio11 on HUinan Rights to pe11alize e1nployers who violate its provisions. The Commission can fine the employer in an amount based 011 1l1e size of tl1e ei11ployer: (1) for employers that en1ploy 11to30 en1ployees, the Commission shall impose up to a $1,000 fine; (2) for employers that employ 31 to 99 e1nployees, t11e Commission shall impose up to a $2,500 fine; and (3) for employers that employ 100 or more employees, the Comrnissio11 shall impose up to a $5,000 fine. Under this tiered-fine system, larger fines are reserved for the largest employers, whereas smaller e1nployers will 11ot be pe11alized as mttcl1. 50

Fee Sharing

As introduced, Bill 20-642 would have deposited all fines levied against employers i11to tl1e General Fund. The Committee received testimony, however, suggesting that Bill 20-642 did not provide encourageme11t for job applicants to file con1plaints, give11 tl1e time and resources required to adjudicate sucl1 coinplaints.51 At t11e public hearing on Bill 20-642, Ari Weisbard, Esq., Deputy Director, Employme11t Justice Center, suggested that "tl1e bill can give job applicants who successfully demonstrate violations a set amount of 'statutory dan1ages' i11 order to encourage them to report violatio11s, rather tl1an inerely including penalties that will be paid to the District. "52

The Com111ittee also received a letter fro1n Community Legal Services of Philadelphia (CLS) - an organization that work:ed for passage of Philadelphia's ban the box ordinance in 2011 - stati11g t11at the lacl( of any compensation to those whose reports of violations result in fines against businesses is one critical omission fro1n the Philadelphia ordinance. 53 CLS believes that the lack of a 1nonetary incentive "l1as had a direct impact on the number of co1nplaints being filed, whicl1 in tum has hurt the city's ability to e11force tl1e law."54 Because "job seekers 11avc much higl1er priorities than goi11g out of tl1eir way to complain about an illegal job application form," providing an ince11tive for job applicants to file a complaint would increase tl1e number of con1plaints filed. 55

The committee pri11t was amended to provide l1alf of all fines levied against employers to the job applicant who filed the complaint. This amendment ensures that there is ru1 incentive for job applicants to file complaints and that tl1e bill will have its desired effect.

49 Committee Repo1i on Bill 19-0017, the "Returning Citizens Anti-Discrimination Act of 2012," p. 18 ("[Chairman Mendelson] then moved to amend the legislation taking out 'private cause of action.' The amendment passed 6 to O."). so The sma!iest businesses, those with less than 11 c1nployccs, are co1nplctcly cxe1npt fro1n this bill. 51 Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. Employ1nent Justice Center, p. 4 ("[W]c also cannot ask job applicants \\'ho are already experiencing difficulty making a living to file a clailn and work for 1nonths to pursue the clai1n without any hope of any con1pensation."). 52 Written Tcstiinony of Ari Weisbard, Esq., Deputy Director, D.C. Employ1nent Justice Center, p. 4. 53 Letter fron1 Brendan Lynch, Community Legal Services of Philadelphia, March 10, 2014. s4 Id. OS Id.

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Exccptio11s

As an initial 111atter, ernployers with fevver than 11 en1ployees are cxernpted frotn this legislation. This exemptio11 reflects the bill's desire to balance the i1nportance of ban the box legislation with tl1e burden any such legislation 1nay impose on small businesses. Stich an exetnption is similar to tl1at provided b)' other jurisdictions. 56

Bill 20-642 contains t\VO additio11al exemptions. First, this legislation does 1101 apply \Vhcre any federal or local law or regulation requires the consideration of an applicant's cri111inal l1istory, such as hiring done by law enforcen1ent agencies. Seco11d, tl1is legislation shall not apply to any positions designated by the en1ployer to participate in a iCderal or local government progra1n or obligatio11 that is designed to encourage the employmc11t of tl1ose vvith criminal records. In such insta11ccs, the goals of the en1ployer are presumed to be consistent with the goals of this legislation: to give returning citizens e111ploy111ent opportunities.

For the reasons explained above, the Comn1ittee reco1nmends passage of the bill as a111ended.

January 7, 2014

January l 0, 2014

Janum-y 24, 2014

February 10, 2014

May 28, 2014

II. LEGISLATIVE CHRONOLOGY

Bill 20-642, "Fair Crimi11al Record ScrecniI1g Act of2014," is introduced b)' Wells, Barry, Bo\.vser, Bonds, Orange, McDuffie, Grahan1, and Chair111an Mendelson, and co-spo11sored by Councilmen1bers Grosso, Alexander, and !~vans, and is referred to the Com111ittec on the Judiciary and Public Safety.

Notice of Intent to act on Bill 20-642 1s pt1blishcd 111 t11c District oj' C'olu1nbia Register.

Notice of a Public Hearing is published tn the District of· C'olianbia Register.

"rhc Com1nittec on the Judicial)' and Pt1blic Safety holds a public hearing on Bill 20-642.

"fhe Con1111ittcc on the Judiciary a11d Pttblic Safety marks-up Bill 20-642.

Ill. POSITION OF THE EXECUTIVE

M6nica Palacio, Acting Director, Office of 1Iu1nan Rights (OI-IR), testified that the Executive supported Bill 20-642 in principle, but she raised a nu1nber of concerns about ho\v tl1e

56 Of the ten jurisdictions that have applied ban the box legislation to private en1ployers, four of the jurisdictions cxe1npt employers \Vith less than ten employees: Ba!titnore, Philadelphia, Buffalo, and San Francisco.

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bill would be e11forced by the OHR and what tools and resources OHR would need to successfully i1nplen1ent tl1e bill if enacted. Ms. Palacio noted that Bill 20-642 includes some provisions adopted in other jurisdictions, but she stated that it goes further thru1 any other law tl1at OHR reviewed in its prol1ibitio11 agai11st employer inqt1iries and researcl1 into an applicant's criminal background.

Ms. Palacio's testin1ony consisted of a i1umber of hypotheticals, which higl1lighted areas of concer11. For exa1nple, Ms. Palacio wondered how OHR could prevent employers fron1 conducting inten1et searcl1es 011 applicants' cri111inal records and whetl1er an employer would be allowed to retrieve a criminal background earlier in the hiring process if the employer agreed not to review it tu1til after making a conditional offer. Similarly, Ms. Palacio wondered whether an employer co11ld exclude from employ1nent tl1ose co11victed of certain crin1inal offenses (sucl1 as sex offenses, manslaugl1ter, or 1nurder).

~Is. Palacio stated that OHR wollld require additional resoltrces to enforce tl1e bill. Specifically, Ms. Palacio stated that the legislation would require a mi11imum of 2 to 4 full thne e1nployees. Ms. Palacio also suggested a technical correctio11 that OHR believed to be a drafting error. Finally, Ms. Palacio stated tl1at OI-IR looks forward to working with the Council to address tl1e co11cerns raised ii1 her testimony.

IV. COMMENTS OF ADVISORY NEIGHBORHOOD COMMISSIONS

The Comn1ittee received no testilno11y or com1nents from Advisory Neighborhood Conunissio11s.

V. SUMMARY OF TESTIMONY AND STATEMENTS

TI1e Co111mittee on the Judiciary and Public Safety held a public hearing on Bill 20-642 on Monday, February 10, 2014. The testimony su1nmarized below is fron1 that hearing. A copy of all written testimony received is attacl1ed to this report; the video recording of the hearings (available online at http://oct.dc.gov/services/on _demand_ video/channel_l 3.asp) is incorporated by reference. The Hearing Record is 011 file with tl1e Office of the Secretary oftl1e Council.

The following witnesses testified at the hearing or sub1nitted stateme11ts Olttside of the hearings:

Courtney Ste\vart, Chairman, The Reentry Network for Retur11ing Citizens, Inc., testified in support of B20-642. Mr. Stewart stated that the bill will l1elp restore confide11ce and get people back on tl1eir feet entl1usiastically looki11g for work. Mr. Ste'\vart also stated that the bill will send a firn1 message that discriminatory screening practices will not be tolerated and the city \Vill not do business with companies who discriminate against people wl10 arc otl1erwise qualified for tl1c job.

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Marina Streznelvski, Executive Director, DC Jobs Council, testified in support of Bill 20-642. Ms. Streznewski stated that the penalties i11 the bill must be high enough to cl1ange en1ployer behavior, but not so l1igl1 as to be excessively btirdensome. Ms. Streznewski also suggested a nun1ber of amendme11ts to tl1e bill, i11cluding expandi11g the bill's defi11ition of "employer" to include all e1nployers and addi11g a lin1ited private right of actio11 so complainants can have tl1e opportu11ity for a full l1earing i11 court.

Ari Wcisbard, Dept1ty Director, Employment Justice Center, testified in support of Bill 20-642 in principle, but l1e l1ad some concerns to ensure tl1at the fi11al bill is co1nprehensive in scope and contai11s effective enforce1nent measures. Mr. Weisbard expressed concerns about the Office ofHtiman Rights' role as the enforcing agency for tl1e bill because OHR investigations do not })rovide einployees with the opportunity to conduct discovery or depose or cross-examine witnesses or even to respond directly to evidence presented by employers. Mr. Weisbard also suggested tl1at the bill provide "statutory damages" to aggrieved applicants, in order to provide an incentive for a11 aggrieved applicm1t to take the ti1ne and resources reqtiired to file a complaint.

Debra G. Rowe, M.H.S., C.C.H.P., Acting Executive Director, Retur11ing Citizens United, Inc., testified in suppo1t of Bill 20-642. Ms. Rowe shared the stories of returning citizens \Vho have been stibjected to unfair discrimination because of their criminal records. For example, Ms. Rose 1nentioned a man who could not get a job frying chicken at a restaurant because he had a six-year-old drug cl1arge.

Kathy llollinger, President, Restaura11t Association Metropolita11 Washington, testified in support of the provisions of tl1e bill that prohibit the use of arrest records in 1naking employ1nent decisions and those that prohibit 1l1e use of the box on job applications, but in opposition to the ren1aining provisio11s of the bill. Ms. Hollinger stated the Cooocil should consider tl1e potentially burdenso111e and expensive l1iring process that wot1ld be required by t11e bill. Ms. Hollinger stated she favors an approacl1 that provides protection to applica11ts, but allows employers the ability to make an i11quiry earlier, at the interview stage, and abort the applicant's candidacy if there exists a legitin1ate btisiness reason to do so.

Nikki Lewis (no written state111ent), Executive Director, DC Jobs with Justice, testified in sttpport of Bill 20-642, stating that bmming the box is a quick and easy first step to address the proble111s faced by individuals with crimi11al records. Ms. Lewis testified that banning t11e box in the public sector was successful, at1d that sitnilar prohibitions should be extended to the private sector and housiI1g.

Mattl1ew llandley, Director, Equal Employment Opporttmity Project, Washington Lawyers' Committee for Civil Rights & Urban Affairs, testified in support of Bill 20~642. Mr. Handley urged tl1e Com1nittee to include a private right of action in the legislation. Mr. Hm1dley believes that the adversarial process is an i1nportant part of civil rights legislation. Mr. Handley also suggested that tl1e bill include l1ousi11g.

Aja G. Taylor, Conununity Organizer, Bread for the City, testified in support ofBill 20-642. Ms. Taylor noted a correlation between stable employment and reduced recidivism. Ms.

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Taylor explained that she 11as n1et cou11tless people who are unfairly excluded frotn ernploy1nent because of their criminal record. Ms. Taylor sttggested tl1at tl1e bill be amended to provide a timeline, so that the adjudication of complaints occurs in a ti111ely 1nruu1er. Ms. Taylor also suggested that the bill sl1ould be expanded to include housing.

Phylisa Carter, Senior Staff Attorney, Co111rnunity Lawyering Project, Bread for the City, testified in support of Bill 20-642. Ms. Carter 11oted t11at a large segment of District residents arc excl11ded from sharing in tl1e city's prosperity because oftl1eir criminal record. Ms. Carter also suggested tl1at tl1e bill be expanded to include housing because many retur11ing citizens are barred fron1 subsidized 11ousing or sl1elters.

Shae Harris, REclaim the Vote DC, testified in support of Bill 20-642. Ms. I-Iarris stated tl1at it is in the best interest of our city to stop ignoring issues faced by returning citizens and make public policy cl1anges that would ensure t11at these returning citizens actually l1ave a chance to be productive citize11s. Ms. I-Iarris noted tl1at when returning citizens find e1nployn1ent, they can pay taxes, support themselves and t11eir families, and reduce their dependence on government support.

Alislta Carrington, Comn1unity Outreach Assistant, Free Minds Book Club & Writing Workshop, testified in support ofBill 20-642. Ms. Carrington stated that the box on applications 1nakes the pain and stigma of mistakes made when she was younger feel like a "life sentence." Ms. Carrington stated tl1at individuals with criminal records look al1ead a11d know that they will face workplace discri1ninatio11 for years a11d years to come, all because of a mistake 1nade at the age of sixteen.

Sherman Justice, Free Minds Book Club & Writing Workshop, testified in support of Bill 20-642. Mr. Justice stated that after being incarcerated for five years, he has worked tirelessly to become a productive citize11 and be an advocate for all t11e voiceless people he knows behind bars. Si11ce his release, Mr. Justice works two part-time jobs and has an i11ternship, yet he has been u11able to land a full time job. Mr. Justice recalled being hired for a job at an airport. only to be called later and told that l1e couldn't start because of his criminal record. Mr. Justice noted that even though he served his time, he basically 11as to keep re-serving each time he cl1ecks the box 011 a job applicatio11.

James White (no written statement), Public Witness, testified in suppo1t of Bill 20-642. Mr. White shared his perso11al experiences wit11 ttnfair 11iri11g practices because of his criminal records. Mr. Wl1ite stated t11at he was automatically disqualified from jobs, despite his qualifications and recornrne11dations fro1n former en1ployers. Mr. White indicated that l1aving stable e1nployment and housing is essential to successful reintegration.

Brenda Burnett (no writte11 statement), Public Witness, testified ii1 support of Bill 20-642. Ms. Burnett stated that she has seen how difficult it has been for wome11 at her church to fi11d en1ployrnent because of their criminal history. Ms. Bttrnett described tl1e unfairness of auton1atically disqualifying applicants becatise they check tl1e box 011 tl1e application.

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Jeremiah Lo\vcry, Research and Policy Coordinator, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Mr. Lowery noted that by delaying whe11 en1ployers can ask about cri1ninal records actually saves businesses 1noney because employers would then only be co11ducting background checks on qualified applicants. Mr. Lowery stated that ban tl1e box legislation gives city-dwellers pride i11 their community and it shows that they trust their fellow residents to participate in the econon1y with tl1en1.

Catherine Bryanti Waitress, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Ms. Bryant stated that she has personally see11 former drug addicts ru1d sex­\Vorkers beco1ne excellent professional employees by cl1anging the course of their lives. Ms. Bryant poi11ted out tl1at having a criminal record is irrelevant because individuals without crin1inal records n1ay have con11nitted the same crimes, but they simply were not caugl1t. Ms. Bryant stated that "the box" misguides employers by i1ot letting employees witl1 talent address tl1eir legal past.

Carrie Hathem, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Ms. I-Iathem stated that t11e District already bans tl1e box on government employ1nent applicatio11s and that this proves tl1at banning tl1e box does help eliminate l1iriI1g barriers for retur11ing citizens ru1d that successful integratio11 into the workforce is possible. Ms. I-Iatl1em also stated that banning the box will add to the diversity of those currently in tl1e restaurant industry.

Chinh Q. Le, Legal Director, Legal Aid Society of the District of Columbia, testified in support of Bill 20-642. Mr. Le stated that while he agrees and strongly supports this bill, he believes t11at the bill would be substantially strengthened by including provisions that would extend sin1ilar protections to individuals with criminal records in the housing context. Mr. Le noted that ensuring access to stable housing facilitates rei11tegration of individuals with criminal records.

Nassim Moshiree, Staff Attorney, Washington Legal Cli11ic for t11e Homeless, testified in suppo1i of Bill 20-642. Ms. Moshiree suggested extending tl1e bill's protections to housing. Ms. Moshiree stated that through her job, sl1e encou11tered countless District residents wl10 faced nearly insunnountable barriers to affordable 11ousing because of past criminal histories. Ms. Moshiree stated that havi11g a criminal history does not accurately predict whether someone \Vil! make a good tenant.

Patricia Fletcher, Public Witness, testified in support ofBill 20-642. Ms. Fletcher stated tl1at sl1e was ter1ninated from a teaching position because of her criminal record after she 11ad held t11e position for nearly a year. Ms. Fletcl1er stated that because of her criminal record, she lives it1 fear and uncertainty about her future and she wonder whether she will be able to use 11er skills to improve her quality of life.

Eugene Puryear, Public Wit11ess, testified in support of Bill 20-642. Mr. Puryear stated tl1at ask:ing so1neone for their crimi11al record when they seek employment acts as a significant bru· to successfully obtaining work. Mr. Puryear stated that individuals with criminal records are consigned to second-class citize11ship by virtue of their criminal history. Mr. Puryear believed that discriminating against someone for a past criine after they have been to prison and duly

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released is an extrajudicial punishment with 110 real basis - either you get a second cl1ance or you do11't.

Perry Redd, Executive Director, Sincere Seven, testified ill support of Bill 20-642. Mr. Redd stated that si11ce 11e was released from priso11, he has applied to more than 200 jobs over the course of three years, yet he is still t1ne1nployed. Mr. Redd believes that this legislation sl1ould be inore con1prel1e11sive, but for now, he believes that this bill needs to be passed.

Michael Sindram, DC Justice for All, testified in support of Bill 20-642. Mr. Sindram stated that people wl10 nlake n1istakes should be given a seco11d cl1ance. Mr. Sindram stated that he co11Siders this bill similar to Do11't Ask Don't Tell. Mr. Sindram stated that the District is flush with cash and that tl1e District should create a veterans court

Dwayne Jordan, Public Witness, testified i11 support of Bill 20-642. Mr. Jordan stated that he has a felony drug charge from 2010, whicl1 \Vill stay on 11is record until at least 2018. Mr. Jordm1 shared his personal experiences of being denied employn1ent because of his criminal history. Mr. Jordan suggested t11at tl1e legislatio11 be extended to housing because he believes his sobriety and stability is a result of having stable 11ousing.

Kenya Massie, Youtl1 Organizer, Sasha Bruce Youthwork, testified in support ofBill 20-642. Ms. Massie stated that discriminatory hiring practices impact not just returning citizens, but children and family i11ernbers oft11ese citize11s too. Ms. Massie believed that such hiri11g practices cause youth to start to doubt tl1en1selves.

G. Lee Aikin, Public Witi1ess, testified in support of Bill 20-642. Mr. Ail(in stated that there should be a time limit for effective action on a complaint because various District agencies have been notorious for long delays in solving si1nple proble1ns. tvfr. Aikin also suggested that crimi11al records should be automatically sealed.

Rhonda Moffitt, Public Witness, testified in support of Bill 20-642. Ms. Moffitt described her frustration wl1e11 she was hired to work at Wal-Mart, but then was told that she could not have the job because of her crin1inal record. Ms. Moffitt stated that she was denied employment because of something that happe11ed a 1011g tiI11e ago, but is conti11ually holding her back. Ms. Moffitt encouraged tl1e Council to pass this bill, so that she can truly 11ave a second chance.

Michael Scott, Director, DC Catholic Conference, submitted testimony on Bill 20-642. Mr. Scott stated that the Conference supports tl1e goal of the bill, but the Conference believes that as written it would go beyond its intended effect of combating discrimi11ation and instead pose serious cl1allenges for employers who use criminal background cl1ecks in good faith and for good reasons. Mr. Scott suggested including m1 exemption for positions that place employees in substantial co11tact with minors and vulnerable adults.

Jessica Steinberg, Associate Professor of Clinical Law, The George Washington University Law School, sub1nitted testi1nony in support of Bill 20-642. Ms. Steinberg stated that the bill strikes tl1e appropriate balance of ensuring that e1nployers retain free exercise in hiring

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011ly those en1ployees wl10 are qualified and l1ave 111e requisite sl(ills and experience to perfor1n well on tl1e job, wl1ile at tl1e same time ensuri11g t11at employment applicants witl1 criminal records have a fair opportunity to obtain e1nployn1ent. Ms. Steinberg suggested an1ending tl1e bill to nlake it inandatory for an employer revoking a co11ditional offer of employn1ent to issue both a stateme11t of denial and a copy of all crin1inal records the employer procured in consideration of the applicant.

Robert A. Malson, President, District of Columbia 1-Iospital Associatio11, sub1nitted testimony on Bill 20-642. Jv1r. Malson suggested that the bill be an1ended to explicitly exen1pt e11tities licensed tmder the Healtl1-Care and Community Residence Facility, Hospice and I-lame Care Lice11sure Act of 1983, which prol1ibits hospitals a11d other l1ealth facilities from hiring individuals convicted of certai11 crin1cs.

Sally Kram, Director of Governmental and Public Affairs, Consortiun1 of Universities of tl1e Wasl1ington Metropolitan Area, sub1nitted testi1nony expressing the Consortium's concerns about how the bill would affect the hiring process and how it would be administered by the government. Ms. Krain wrote that the Consortium was unstrre why the bill varies so significantly fron1 the Jaw the District government applies to itself.

Solomon Keene, Jr., President, 1-Iotel Association of Washington, D.C., submitted testin1ony stating that the bill would be overly burdensome on employers. Mr. Keene suggested that the bill be amended to allow the en1ployer to ask about criminal convictions earlier in the hiring process. Mr. Keene stated tl1at hotels should i1ot be forced to make hiring decisions that may be detrime11tal to their business or put the well-being of b:ruests and employees at risk.

Andrew A. Porter, Chairn1m1, Alliance for Co11struction Excellence, submitted testi1nony expressing the Alliance's concerns witl1 the bill. Mr. Porter stated that it would be u11acceptable for individuals with criminal records to enter secured sites such as military or governn1ent i11stallations, or schools. Mr. Porter stated that background checks are an absolute in the construction business, m1d thus reqt1ested that tl1e construction industry be exe1npt fro1n the bill's coverage.

Barbara Lang, President, DC Chamber of Commerce, sub111itted testin1ony in opposition to Bill 20-642. Ms. Lang stated that tl1e Cou11cil should focus on improving the availability of skilled workers rather tl1an trying to assign blame on tl1e business con11nunity and constantly changing the law 011 11iring. Ms. Lang indicated tl1at sl1e was pleased that Bill 20~642 did not create a protected class for returning citizens under tl1e Human Rights Law, the Chamber could not support the legislation as written. Ms. Lang suggested a i1u1nber of an1endments to t11e bill, including allowing employers to ask about criminal convictions after the first interview.

Brendan Lynch, Staff Attor11ey, Co1nmunity Legal Services of Philadelphia, submitted testimony explaini11g his view of the experience that Philadelphia has had in i1nplementing a11d enforcing its ban the box legislatio11. Mr. Lyncl1 stated that one critical omission from Philadelphia's ordinance is the lack of any compe11sation to those whose reports of violations result it1 fines against businesses. Mr. Lynch believes that if job seekers could reasonably expect

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so1ue s1uall cornpensation when they file co1nplaints whicl1 tur11 out to be valid, the i1umber of co1nplaints would increase, thus allowing the law to do its job.

VL IMPACT ON EXISTING LAW

Bill 20-642 amends the Returni11g Citize11 Public En1ployment Inclt1sio11 Amendment Act of 2010, effective June 15, 2013 (D.C. Law 19-319; codified in scattered cites in t11e D.C. Official Code), by adding a i1ew part that would ensure that criminal records are screened fairly. Specifically, Bill 20-642 would prohibit en1plO)'ers from inquiring about an applicru1t's criminal 11istory until after the first interview. Employers who violate t11is bill can be fined in an amo11nt based 011 the size of t11e employer. Bill20-642 also requires the Office of Human Rights to 1naintain data on the number of complaints filed and demographic information on the complainants.

VIL FISCAL IMPACT

The Committee adopts the Fiscal Impact Staten1ent prepared by the Chief Financial Officer.

Section 1

Section 2

VIII. SECTION-BY-SECTION ANALYSIS

States the short title of Bill 20-642.

(a) Provides definitio11s for ter1ns used in Bill 20-642. Defines "employer" as any perso11, company, corporatio11, firm, labor orgru1ization, or association, including the District governn1e11t, b11t not i11cluding the Courts, that employs more tl1an 10 employees i11 the District of Colu1nbia.

(b) Prol1ibits covered employers from asking job applicants if they have ever bee11 arrested for a crime. Provides that such employers may not ask about an applicant's criminal convictions until after the first interview. The prohibitions contained in this sectio11 do not apply where any federal or District law requires t11e co11sideration of a11 applicant's cri1ninal history or where the position has been desig11ated by the employer as part of a federal or District govern1nent program designed to encourage the e1nploy1nent of those witl1 criminal records.

(c) Provides that persons claiming to be aggrieved by a violation of this bill may file an administrative complaint with tl1e Office of I-luman Rights.

(d) E1nployer will be fined in an amou11t based on the size oftl1e employer: (1) for e1nployers tl1at employ 11 to 30 employees, the Commission shall in1pose up to a $1,000 fine; (2) for e1nployers that employ 31 to 99 employees, the Commission shall impose up to a $2,500 fine; and (3) for employers t11at employ 100 or more

Co1n111ittee on the Judiciary and Public Safety Report on Bill 20-642

May 28. 2014 Page 19 of20

Sectio11 3

Section 4

employees, the Co1nmission shall in1pose ttp to a $5,000 fine. levied will be given to the eomplaina11t.

I-lalf of all fines

(e) Requires tl1e Office of Htunan Rigl1ts to i11aintain data 011 the number of co1nplaints filed under this bill, de1nographic infor1nation on the co1nplainants, the nun1bcr of investigations it condttcts, and tl1c disposition of every complaint and investigation.

Adopts the fiscal impact statc1nent.

Provides tl1e effective date.

IX. COMMITTEE ACTION

On May 28, 2014, the Con11nittee niet to consider Bill 20-642. ]'he 111eeting \Vas called to order at 9: 10 AM. After ascertaining a qt1oru111 (Chairperson Wells and Councilme111bers Cheh and Evans present), Chairperson Wells n1ade opening re1narks. I-Ie shared statistics abot1t the large nu1nber of District residents who have a crin1inal records and stressed the unfairness and arbitrariness of auto1natically disqualifying individuals with criminal records. Cl1airperson Wells stated the bill •vou!d cncot1ragc employers to inake hiring decisions based on n1orc infor1nation than just the applicant's crin1i11al record. 1-Ie then described the niajor clen1ents of the bill and stated that the con11nittcc print balances tl1e concerns raised in tl1e hearing with the clear poliC)' goal of removing ba1Tiers to e1nploy1nent for returni11g citizens. Chairperson Wells then moved the print, wit11 leave for staff and the General Cottnsel to i11ake technical cl1anges a11d conforn1i11g changes.

Councilmen1ber Cheh began the discussion, thanking Chairperso11 Wells for his \.VOrk on this issue a11d stating the i1nportance of helpi11g returning citizens find employtnent. Councihnembcr Cheh raised several questions rcgardi11g tl1e reac11 of the bill, including whether employers would be allowed to advertise wl1ich convictions would be job-disqualifying for a particular position and wl1en a11 employer would be permitted to ask about ru1 applicant's cri1ninal history (Chairperson Wells responded thal /he bill does not prol1ibit e1nployers ji·o1n advertising that certain convictions it'ill be job-disqualijj;in~r.z;: and e1nployers n1ay ask abo111 an GJJp!icant 's cti111i11al convictions qfter the.first intervie\v).

I-Iea1ing no further discussio11, tl1e vote to approve the pri11t was una11imous.

Chairperson Wells tl1en n1oved the repo11, with leave for staff to n1ake technical, editorial, and confor1ning changes. After an opportunity for discussion, tl1e vote to approve the report was unan11nous.

The 1neeting adjourned at 9;22 AM.

Con11nittee on the Judiciary and Public Safety Report on Bill 20-642

X. ATTACHMENTS

1. Bill 20-642 as introduced.

2. Witness list.

3. Fiscal impact state111ent.

4. Legal sufficie11cy determination by tl1e General Coru1sel.

5. Committee Print for Bill 20-642.

May 28, 2014 Page 20 of20

Memorandum

To:

From:

Date:

Subject:

COUNCIL OF THE DISTRICT OF COLOMBIA 1350 Pennsylvania Avenue, N.W.

Washington D.C. 20004

Members of the Council

Nyasha mith, Secretary to the Council

January 09, 2014

Referral of Proposed Legislation

Notice is given that the attached proposed legislation was introduced in the Legislative Meeting on Tuesday, January 7, 2014. Copies are available in Room 10, the Legislative Services Division.

TITLE: "Fair Criminal Record Screening Act of 2014", 620-0642

INTRODUCED BY: Chairman Mendelson, Councilmembers Wells, Barry, McDuffie, Orange, Graham, Bowser and Bonds

CO-SPONSORED BY: Councilmembers Evans, Grosso and Alexander

The Chairman is referring this legislation to the Judiciary and Public Safety with comments from the Business, Consumer, and Regulatory Affairs.

Attachment

cc: General Counsel Budget Director Legislative Services

1 2 3 4

5 6

7

8 9

10 11 12 13 14 15 16 17

I/ .

~~c~ft(__.}

18 19 20 21 22 23 24 25 26

-­cilmem er(; arry ~

~,&::; t B. Orange

~wser Councilmember Anita D. Bonds

A BILL

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

27 Councilmember Tommy Wells introduced the following bill, which was referred to the

28 Committee on--------------· 29 30 1'o amend the Re-entry Facilitation Amendment Act of2012 to assist the successful reintegration 31 of formerly incarcerated people into the community by removing barriers to gainful 32 employment; to prohibit the consideration of a job applicant's arrest record during the 33 hiring process; to restrict an employer's inquiry into a job applicant's prior convictions 34 before a conditional offer of employment; to establish fines for violations of this act; and 35 to give authority for enforcement to the Of!ice of Human Rights. 36 37 38 BE lT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this 39 act may be cited as the "Fair Criminal Record Screening Act of2014". 40 41 Sec. 2. The Re-entry Facilitation Amendment Act of2012, effective June 15, 2013 (D.C.

42 Law 19-319; codified i11 scattered cites in the D.C. Official Code), is amended by adding a new

43 section 2a to read as follows:

1

•

44 "Sec. 2a. Fair Criminal Record Screening.

"(a) Definitions. 45 46 47 48

"For the purposes of this section, the term:

49 "(I) "Adverse action" means a decision by an employer to reject an otherwise

SO qualified job applicant, or to discharge, suspend, discipline, demote, or deny a promotion to an

51 employee.

52 "(2) "Applicant" means any person considered or who requests to be considered

53 for employment by an employer.

54 "(3) "Arrest" means being apprehended, detained, taken into custody, held for

55 investigation, or restrained by a law enforcement agency due to an accusation or suspicion that

56 the person committed a crime.

57 "( 4) "Conviction" means any sentence arising from a verdict or plea of guilty

58 or no lo contendere, including a sentence of incarceration, a suspended sentence, a sentence of

59 probation or a sentence of unconditional discharge.

60 "(5) "Employer" means any person, company, corporation, finn, labor

61 organization, or association that employs more than 10 employees in the District of Columbia.

62 "(6) "Employment" means any occupation, vocation, job, or work for pay,

63 including temporary or seasonal work, contracted work, contingent work

64 and \Vork through the services of a temporary or other employment agency; or any fonn

65 of vocational or educational training with or without pay, where the physical location of the

66 prospective employment is in whole or substantial part, within the District of Columbia.

67 "{7) "Inquiry" means any direct or indirect conduct intended to gather

2

68 information from or about the applicant, candidate or employee, u.<>ing any mode of

69 comn1unication, including application forms, interviews, and criminal history checks.

70 '"(&)"Offer of employment" means an expression of readiness to employ an

71 applicant.

72 "(b) Prohibition of unfair discrimination against persons arrested for one or more criminal

73 offenses.

74 "In connection •vi th employment of any person, it shall be an unlawful discriminatory

75 practice for a private employer to at any time:

76 "(1) Make any inquiry about any person on the basis of any arrest or criminal

77 accusation made against such person, •vhich is not tl1en pending against that person and which

78 did not result in a conviction;

79 "(2) Require any person to disclose or reveal any arrest or criminal accusation

80 n1ade against such person, which is not then pending against that person and which did not result

81 in a conviction; or

82 "(3) Take any adverse action against any person on the basis of any arrest or

83 criminal accusation made against such person, which is not then pending against that person and

84 which did not result in a conviction.

85 "(c) Prohibition of unfair discrimination against persons previously convicted of one or

86 more criminal offenses.

87 "In connection with the employment of any person, it shall be an unlawful discriminatory

88 practice for a private employer to:

89 "(I) Make any inquiry about a person regarding any criminal conviction prior to

90 making a conditional offer of employment;

3

91 "(2) Require any person to reveal or disclose any criminal conviction prior to

92 making a conditional offer of employment; or

93 "(3) Take any adverse action against the applicant on the basis of any criminal

94 conviction prior to making a conditional offer of employment

95 "(d) Determination of a Legitimate Business Reason.

96 "(I) Following the extension of a conditional offer of employment, an employer

97 may only withdraw the conditional offer for a legitimate business reason.

98 "(2) The employer's determination of a legitimate business reason must be

99 reasonable in light of the following factors:

100 "(A) The specific duties and responsibilities necessarily related to the

101 employment sought or held by the person;

102 "'(B) The bearing, if any, the criminal offense or offenses for which the

103 person was previously co11victed will have on his or her fitness or ability to perform one or n1ore

104 such duties or responsibilities;

105 "(C) The time which has elapsed since the occurrence of the criminal

106 offense or offenses;

107 "(D) The age of the person at the time of the occurrence of the criminal

108 offense;

109 "(E) The frequency and seriousness of the criminal offense;

110 "'(F) Any information produced by the person, or produced on his behalf,

111 in regard to his rehabilitation and good conduct since the occurrence of the criminal offense; and

112 "(G) The public policy that it is beneficial generally for exwoffenders to

113 obtain employment.

4

114 "(3) For the purposes of this section, an arrest can never serve as the basis for an

115 adverse action or withdrawing an offer of employment, and arrest records are to be given no

116 weight in the determination of whether a legitimate business reason exists to withdraw the offer.

117 "(e) Statement of Denial.

118 "If an applicant's conditional offer is terminated, the applicant may request that the

119 employer provide the applicant within 30 days:

120 "(1) A copy of any and all records procured by the employer in consideration of

121 the applicant, including criminal records; and

122 "(2) A written Statement of Denial, which:

123 "(A) Articulates a legitimate business reason;

124 "(B) Specifically demonstrates consideration of each of the factors set

125 forth in subsection (b) of this section;

126 "(C) Advises the applicant ofl1is or her opportunity to file an

127 administrative complaint with the Office of Human Rights.

128 "(f) Exemptions.

129 "'(I) The prohibitions of this section shall not apply:

130 "(A) Where any federal or District of Columbia law or regulation requires

131 the consideration of applicant's criminal history for the purposes of employment;

132 «(B) To any positions designated by the employer to participate in a

133 federal or District of Columbia government program or obligation that is designed to encourage

134 the employment of those with criminal histories;

135 "(C) If the candidate voluntarily discloses any information regarding his or

136 her criminal history by unsolicited voluntary written or oral disclosure.

s

137 "(2) Nothing in this section shall be construed to affect any right an employer may

138 have with respect to an intentional misrepresentation in connection with an application for

139 employment made by a prospective employee or previously made by a current employee.

140 "(g) Retaliation.

141 "(1) It shall be unlawful for an employer to:

142 "(A) Interfere with, restrain, or deny the exercise of, or the attempt to

143 exercise, any right conferred under this section.

144 "(B) Retaliate against a job applicant or employee because the applicant or

145 employee has exercised in good faith.the right to file a complaint with the Office of Human

146 Rights about any employer's alleged violations of this statute, the right to cooperate in the Office

147 of Human Rights' investigation1 or the right to oppose any policy, practice, or act that is

148 unla\vful under this section.

149 "(2) The protections afforded under this section shall apply to any person who

150 mistakenly but in good faith alleges violations of this chapter.

151 "(h) Enforcement; Remedies.

152 "(l)(A) A person claiming to be aggrieved by an unlawful discriminatory practice

153 prohibited by this section may elect to file an administrative complaint with the Office of Hwnan

154 Rights, pursuant to the powers and procedures set forth in sections 301 -312, 314-315, and 317 of

155 the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official

156 Code §§ 2-1403.01 - 2-1403.12, 2-1403.14 - 2-1403.15, and 2-1403-17 l-

157 "(B) The administrative remedies outlined in subsection (a) of this section

158 are exclusive. A person claiming to be aggrieved by an unlawful discriminatory practice shall

159 have no private cause of action in any court based on a violation of this section.

6

160 "(2) If the Commission of H1rman Rights fmds that a violation of subsections (b)

161 or (c) has occurred, the Commission may impose the following penalties:

162 "(A) For violations that occur before January 1, 2015, the penalties are as

163 follows;

164

165 "(i) For the first violation, the Commission shall issue a written

166 warning to the employer that includes a notice regarding the penalties for subsequent violations;

167 "(ii) If a first violation is not remedied within 30 days of the

168 issuance of a warning, the Commission may impose up to a $500 fine; and

169 "(iii) Subsequent violations before January 1, 2015, are subject to a

170 fine of up to $500 per violation.

171 "(B) For violations that occur on or after January 1, 2015, the penalties are as

172 follows:

173 "(i) For employers that employ 11 to 30 employees, the

174 Commission may impose up to a $1,000 fine;

175 "(ii) For employers that employ 31 to 99 employees, the

176 Commission may impose up to a $2,500 fine;

177 "(iii) For employers that employ more than 100 employees, the

178 Commission may impose up to a $5,000 fine.

179 "(3) If the Commission of Human Rights :finds that a violation of subsection (g) of

180 this section has occurred:

181 "(A) The Commission may impose penalties as provided in paragraph (2)

182 of this subsection, and

183 "(B) The Commission may award the aggrieved person:

7

184 1'(i) Back pay for lost wages caused by the violation of subsection

185 (g);

186 "(ii) Reinstatement;

187 "(iii) Compensatory damages; and

188 "(IV) Reasonable attorney's fees.

189 "(i) Data Collection.

190 "The Office of Human Rights shall maintain data on the number of complaints filed

191 pursuant to this section, demographic information on the complainants, the number of

192 investigations it conducts, and the disposition of every complaint and investigation. This data

193 shall be sub1nitted to the Council of the District of Columbia annually beginning 1 year from the

194 effective date of the Fair Criminal Record Screening Act of2014, as introduced on January 7,

195 2014 (Bill 20-X).".

196 Sec. 3. Public outreach.

197 (a) Section 4(c) of the Office on Ex-Offender Affairs and Commission on Re-Entry and

198 Ex-Offender Affairs Establishment Act of2006, effective March 8, 2007 (D.C. Law 16-243;

199 D.C. Official Code§ 24-1303), is amended as follows:

200 (1) Paragraph (6) is amended by striking the word "and" at the end.

201 (2) Paragraph (7) is amended by striking the phrase "responsibilities." and

202 inserting the phrase "responsibilities; and" in its place.

203 (3) A new paragraph (8) is added to read as follows:

204 "(8) Develop and produce materials to inform returning citizens of their rights

205 under the Fair Criminal Record Screening Act of 2014, as introduced on January 7, 2014 (Bill

206 20-X).

8

207 Sec. 4. Fiscal impact statement.

208 The Council adopts the fiscal impact statement in the committee report as the fiscal

209 impact statement required by section 602(c)(3) of the District of Columbia I-Jome Rule Act,

210 approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02 (c)(3)).

211 Sec. 5. Effective date.

212 This act shall take effect following approval by the Mayor (or in the event of veto by the

213 Mayor, action by Council to override the veto), a 30-day period of Congressional review as

214 provided in section 602(c)(I) of the District of Columbia Home Rule Act, approved December

215 24, 1973 (87 Stat. 813; D.C. Official Code§ 1-206.02 (c)(l)), and publication in the District of

216 Columbia Register.

9

COUNCIL OF THE DISTRICT OF COLUMBIA COMMITTEE ON THE JUDICIARY AND PUBLIC SAFETY 1350 Pennsylvania Avenue, NW, Washington, D.C. 20004 AGENDA AND WITNESS LIST

COMMITTEE ON TIIE JUDICIARY AND PUBLIC SAFETY

COUNCILMEMBER TOMMY WELLS, CHAIRPERSON

ANNOUNCES A PUBLIC HEARING ON

BILL 20-642, THE "FAIR CRIMINAL RECORD SCREENING ACT OF 2014"

A. CALL TO ORDER

B. OPENING REMARKS

C. PUBLIC WITNESSES

1. Courtney Stewart 2. Marina Strcznc\vski 3. Ari Weisbard

Monday, February 10, 2014 11 am

Room 120 John A. Wilson Building

1350 Pennsylvania Avenue, NW Washington, DC 20004

Agenda and Witness List

Chainnan, 'fhe Reentry Network for Returning Citizens Executive Director, DC Jobs Council Deputy Director, Employment Justice Center

4. Debra G. Rowe, M.H.S., C.C.l,l.P. Acting Executive Director, Returning Citizens United, Inc. President, Restaurant Association Metropolitan Washington (RAMW)

5. Kathy Hollinger

6. Nikki Lewis (No Written Statement)

7. Matthew Handley

8. Aja G. Taylor 9. Phylisa Carter

10. Shae Harris 11. Alisha Carrington

12. Sherman Justice (No Written Statement)

Executive Director, DC Jobs with Justice (DC JwJ)

Director, Equal Employ1nent Opportunity Project, Washington Lawyers' Committee for Civil Rights & Urban Affairs Com1nunity Organizer, Bread for the City Co1nmunity Lawyering Project, Senior Staff Attorney, Bread for the City REc!aim the Vote DC Community Outreach Assistant, Free Minds Book Club & Writing Workshop Free Minds Book Club & Writing Workshop

13. Ja1nes White (No Written Statement)

14. Brenda Burnett 15. Jeremiah Lowery

16. Catherine Bryant 17. Carrie 1-lathem 18. Chinh Q. Le 19. Nassin1 Moshiree 20. Patricia Fletcher 21. Yvonne Johnson (Absent) 22. James Reese (Absent) 23. Eugene Puryear 24. Perry Redd 25. Michael Sindram 26. D\vaye Jordan 27. Demarco Wright 28. Kenya Massie 29. G. Lee Aikin

D. GOVERNMENT WITNESS

I. Afonica Palacio

E. SUBMITTED STATEMENTS

I. Rhonda Moffitt 2. l'vtichael Scott 3. Jessica Steinbberg

4. Robe11 A. Malson 5. Sally Kram

Public Witness

Public Witness Research and Policy Coordinator. Restaurant Opportunities Center of DC (ROC) Waitress, Restaurant Opportunities Center of DC (ROC) Restaurant Opportunities Center of DC (ROC) Legal Director, Legal Aid Society of the District of Columbia Staff Attorney, Washington Legal Clinic for the I-iomeless Public Witness Public Witness Public Witness Public Witness Executive Director. Sincere Seven DC Justice for All Public Witness Public Witness Youth Organizer, Sasha Bruce Youth\vork Public Witness

Acting Director, Office of flu111a11 Rights

Public Witness Director, DC Catholic Conference Associate Director of Clinical Law, The George Washington University Law School President, District of Columbia 1-fospita! Association Director of Governmental ad Public Affairs, Consortiu1n of Universities of the Washington Metropolitan Area

Jeff DeWitt Chief Financial Officer

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

REFERENCE:

Conclusion

Government of the District of Columbia Office of the Chief Financial Officer

* * * *"***

The Honorable Phil Mendelson Chairn1an, Council of( e is ict ofnoi~-\~a1 ;tl/J Jeff DeWitt <CJ'/ _J' (),.,b)IUlf Chief Financial Officer- U May27, 2014

Fiscal Impact Staten1ent - Fair Crin1inal Record Screening Act of 2014

Bill 20-642, Draft Committee Print as Shared witl1 the Office of Revenue Analysis on May 21, 2014

Funds are not sufficient in the proposed FY 2014 supplemental budget and the proposed FY 2015 through FY 2018 budget and financial plan to implement the bill. Implementation of the bill will increase personnel costs at the Office of Human Rights by approximately $438,000 in FY 2015 and by approxi1nately $1.8 million over the four-year financial plan period.

During their May 14, 2014 budget mark-up, the Council of the District of Columbia's Committee on the judiciary and Public Safety identified funding to implement this bill. Upon the Comn1ittee's recommendation being included in the final FY 2015 through FY 2018 budget and financial plan, funds will be sufficient to implement the bill.

Background

The bill prohibits a potential employer from inquiring about a person's past criminal convictions until after a first interview unless Federal or District Jaw requires criminal history to be considered for a particular type of employmentl or when the position is part of a Federal or District progran1 designed to employ individuals with criminal histories. The bill also prohibits any inquiries into prior arrests or criminal accusations.

An individual aggrieved under the provisions of the bill has as his or her only remedy, the ability to file a complaint with the District's Office of Huinan Rights (OHR). 01-IR will receive, mediate, investigate, and adjudicate complaints and, when applicable, will take proper enforcement action, including 1nonetary penalties. The penalties range from $1,000 to up to $5,000 based on the size of

t Such as employment with the Metropolitan Police Department or other law enforcement agencies.

1350 Pennsylvania Avenue, NW, Suite 203, Washington, DC 20004 (202)727-2476 W\Vw.cfo.dc.gov

The Honorable Phil Mendelson FIS: Bill 20-642, "Fair Criminal Record Screening Act of 2014," Draft Comn1ittee Print as shared with the Office of Revenue Analysis on May 21, 2014

the potential employer.2 OHR is required to pay half the fine assessed on the potential employer to the aggrieved person.

The bill also requires orIR to maintain data and report annually on data on complaints filed with OHR, and its efforts to administer the bill's provisions and report annually to Council.

Financial Plan Impact

Funds are not sufficient in the proposed FY 2014 supplemental budget and the proposed FY 2015 through FY 2018 budget and financial plan to implement the bill.

The limited protections provided by the bill to persons with past convictions are expected to increase the number of cases filed with OHR. OHR would have to docket, investigate, and make a determination on each new case. The Office of Revenue Analysis estin1ates that OHR could receive over 400 additional intakes each year, resulting in approximately 140 new cases annually. To handle this additional <;vork OHR would require three additional equal employment opportunity specialists (EEO) (for reviewing cases), one attorney (to make findings and determinations, and imposing retnedies), and one intake specialist (to evaluate all claims when they are submitted to OHR and deter1nine whether or not the actions qualify for referral to an EEO specialist for investigation). The table below outlines the estimated cost.

Estimated Cost of the Fair Criminal Record Screening Act of 2014 Bill 20-642

FY 2015 through FY 2018

FY 20151 FY 2016 FY2017 FY 2018 Total

Three EEO Specialists2 $249,000 $251,000 $259,000 $261,000 $1,020,000 One Attorney /Hearings Officer2 $104,000 $105,000 $109,000 $110,000 $428,000

One Intake Soecialistz $65,000 $65,000 $68,000 $69,000 $267,000

Total Costs at OHR $418,000 $421,000 $436,000 $440,000 $1,715,000 Table Notes; 1 It is assumed the legislation would be impleinented on October l, 2014. 2 Total personnel costs include the salary and fringe benefits.

2 Specifically, the penalties can be up to $1,000 for en1ployers with 11 to 30 employees, up to $2,500 for employers with 31 to 99 employees, and up to $5,000 for e1nployers with 100 or more employees.

Page 2 of2

~~~"~ ((c;; d;;~~/ "-~~

OFFICE OF TI-IE GENERAL COUNSEL Council oflhl' D18lnct of Columbia

1350 P~nn~yh'm1rn AvPnuc N\V, Suite ·I \\'asl11n~to11_ DC 20004

(202) 72~-8026

MEMORANDUM

TO: Cot111cilmember Tommy Wells

FROM: V. David Zvenyacl1, Ge11eral Counsel

DATE: May 28, 2014

,.>''"""> }**·*·~ E-2 '-" -~ ~­' ,.,,,,,,,

Certified by V. David Zvenyach General Counsel Council of th~ District of Colunibia

RE: Legal sufficiency determi11atio11 for Bill 20-642, tl1e Fair Cri1ninal Record Screeni11g Ame11dn1ent Act of 2014

Tl1e measure is legally and technically sufficient iOr Council consideration.

Bill 20-G42 \vould p1·ohibit an employer from inquiring or requiring a job applicant to disclose a prior "arrest or cri1ninal acc11sation made against the applicant, \Vl1ich is not then pending against the applicant and which did not result in a conviction." Bill 20-642 further restricts a11 0111ployer from inquiring into the job applicant's prior convictions until after the first interview .1

The bill would altthorize the Office of Hun1an Rights to enforce these provisio11s, and sets forth penalties for violations.2 Finally, Bill 20-642 requires the Office ofHun1an Rights to maintain data regarding complaints and investigations and requires the Office of'Hu1nan Rights to sub1nit this data to tho Council on an an11ual basis.

I a1n available if yot1 have any questio11s.

VDZ

1 These prohibitions do not apply: (1) \1i1here federal or District law or regulation l'equircs the consideration of an applicant's cri1ninal history fol' the purposes of e1nploy1nent; or (2) To any positions designated by the en1ployer as part of a federal or District government program or obligation that is designed to encourage the employn1cnt of those \vi th crin1inal histories. ~ 'rhc penalties vary depending on the size of the c1nployer. A con1plainant \vould be entitled to half of the penalty. The bill, however, clarifies that the penalties sel forth in the statute vvould be exclusive of any other re1nedy for violations of the statute.

1 CO/'Vl!'.11TTEE PRINT

2 COMJ\11TTEE ON JUDICIARY AND PUBLIC SAFETY

3 MAY 28, 2014 4

5

6

7

ABILL

20- 642

8

9 IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

10 11 ·ro an1end the Re-e11try Facilitation A1nendn1ent Act of2012 to assist in the successful 12 reintegratio11 of previously incarcerated perso11s into the commu11ity by ren1ovi11g barriers 13 to gainful employment; to prohibit the consideration of a job applicant's arrest record 14 during tl1e l1iring process; to restrict an employer's inquiry into a job applicant's prior 15 convictions u11til after the first interview; to establish penalties; and to give autl1ority for 16 enforcement to the Office of Human Rigl1ts. 17 18 BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That tl1is

19 act n1ay be cited as the "Fair Criminal Record Screening Amendment Act of2014".

20 Sec. 2. The Re-entry Facilitation Amendme11t Act of 2012, effective June 15, 2013 (D.C.

21 Law 19-319; codified in scattered cites i11 the D.C. Official Code), is ame11ded as follows:

22 (a) Section 2 (D.C. Official Code§ 24-1351) is designated as Title I, Part A. Limited

23 Liability.

24 (b) Sections 3 througl1 7 (codified in scattered cites in the D.C. Official Code) are

25 designated as Title II.

26 (c) A new 1'itle I, Part Bis added to read as follows:

27 "Part B. Fair Cri1ninal Record Screening.

28 "Sec. 2a. Defi11itions.

29 "For the purposes of tl1is part, the term:

30 "(1) "Applicant" means any perso11 considered or who requests to be considered

31 for employment by an employer.

32 "(2) "Arrest" means bei11g apprel1ended, detained, taken into custody, held for

33 iI1vestigation, or restrained by a law enforceme11t agency due to an accusatio11 or suspicion that

34 the person con1mitted a criine.

35 "(3) "Conviction" means any sentence arising from a verdict or plea of guilty

1

1 or 11010 contendere, including a sentence of incarceration, a suspended sentc11ce, a sentence of

2 probatio11 or a sentence of unconditional discharge.

3 "(4) "Employer" means any person, company, corporation, firm, labor

4 organization, or association, i11cluding tl1e District govemn1e11t, but i1ot includi11g the Courts, that

5 employs more tl1a11 10 en1ployees in the District of Coltm1bia.

6 "(5) "Employment" n1eans ai1y occupation, vocation, job, or work for pay,

7 iI1cluding temporary or seasonal work, contracted work, contingent work, and work throtigh t11e

8 services of a te1nporary or other employ1nent agency; or a11y for1n of vocational or educational

9 training with or without pay, wl1ere the physical locatio11 of the employmc11t is in whole or

10 substantial part, within the District of Colun1bia.

11 "(6) "Inquiry" mem1s any direct or i11direct conduct intended to gather

12 it1for1natio11 fron1 or abotit the applicai1t, candidate or e1nployee, using any 1netl1od, incltiding

13 application forms, interviews, and criminal l1istory checks.

14 "(7) "Interview" 1neans a11y direct contact by t11e en1ploycr witl1 tl1e applica11t,

15 wl1cther in perso11 or by telephone, to discuss tl1e employment being sougl1t or the applicants'

16 qualifications.

17 "Sec. 2b. I11quiries into Certain Arrests, Accusations, m1d Convictions.

18 "(a) An en1ployer may 11ot 111ake any i11quiry about or require an applicant to disclose or

19 reveal any arrest or criminal accusation n1ade against the applicant, which is not then pending

20 against the applicant and which did 11ot result in a conviction.

21 "(b) An employer inay 1101 make any inqtiiry or require m1 applicant to disclose or reveal

22 any cri1ninal conviction until after the first interview.

23 "(c) The prohibitions of this pmi shall 11ot apply:

24 "(l) Wl1ere any federal or District law or regulation requires the consideration of

25 an applicant's criminal l1istory for t11e purposes of e1nployn1ent; or

26 "(2) To any positions designated by the employer as part of a federal or District

27 government progran1 or obligatio11 that is designed to encourage the employ1nent oftl1ose with

28 criminal histories.

29 "Sec. 2c. Filing a complaint with the Office of l-Itimm1 Rigl1ts; exclusive remedy.

30 "(a) A perso11 claiming to be aggrieved by a violation of this part may file an

31 admi11istrative complai11t witl1 the Office ofl-Iuman Rights, in accordance v-.1ith the procedures set

2

1 forth in Title III of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38;

2 D.C. Official Code§§ 2-1403.01 el seq.).

3 "(b) Not\vitl1standing section 316 of the Hlnnan Rigl1ts Act of 1977, effective December

4 13, 1977 (D.C. Law 2-38; D.C. Official Code§ 2-1403.16), the administrative remedies outlined

S in subsection (a) oftl1is section are exclusive. A person claiming to be aggrieved by a violation

6 of this part shall have no private cattse ofactio11 in any court based on a violation of this part.

7 "Sec. 2d. Penalties.

8 "If the Commission on 1Iu1nan Rights finds tl1at a violation of this part has occurred, the

9 Con11nission shall impose the following penalties, ofwl1ich half shall be awarded to tl1e

10 con1plainant:

11 "(a) For e1nployers that employ 11to30 en1ployees, a fi11e of up to $1,000;

12 "(b) i:-or employers tl1at en1ploy 31 to 99 employees, a fine of up to $2,500;

13 "(c) For employers that en1ploy 100 or n1ore en1ployees, a fine of up to a $5,000.

14 "Sec. 2e. Reporting require111ents.

15 "(a) The Office ofI-Iun1an Rights shall maintain data on tl1e number of complaints filed

16 p1irsum1t to this part, demograpl1ic i11formation on tl1e complainants, tl1e number of investigations

17 it co11ducts, and tl1e dispositio11 of every co111plai11t and investigation.

18 "(b) Data t11aintained by the Office of Human Rights pursuant to subsection (a) of this

19 section shall be sub111itted to the Co1tncil of the District of Columbia annually, beginning 1 year

20 fro111 the effective date of the Fair Criminal Record Scree11ing An1end111ent Act of2014, as

21 approved by the Con1mittee on the Judiciary and P11blic Safety on May 28, 2014 (Con1mittec

22 print ofBill 20-642).".

23 Sec. 3. Fiscal i1npact statement.

24 Tl1e Council adopts the fiscal in1pact staterne11t i11 the committee report as tl1e fiscal

25 i1npact statement required by section 602(c)(3) oftl1e District of Columbia l-Iorne Rule Act,

26 approved December24, 1973 (87 Stat. 813; D.C. Official Code§ 1-206.02 (c)(3)).

27 Sec. 4. Effective date.

28 This act shall take effect followi11g approval by tl1e Mayor (or in the event of veto by the

29 Mayor, action by Co1u1cil to override the veto), a 30-day period of Congressional review as

30 provided in section 602(c)(I) of the District of Col1unbia I-Iorne Rule Act, approved December

3

1 24, 1973 (87 Stat. 813; D.C. Official Code§ 1-206.02 (c)(l)), and publication in the District of

2 Colun1bia Register.

4