Working with a Record: Legal Strategies To Address a Job Seeker’s Criminal History

1. Working with a Record:Legal Strategies To Address a Job Seeker’s Criminal History Vanessa Torres Hernandez Staff Attorney, Equal Justice Works Fellow Email: vhernandez@aclu-wa.org

2. Overview • Impact of Criminal History on Employment • The Background Check Process • Advocating for Applicants with Criminal History • Relief Mechanisms

3. The Impact of a Criminal History

7. No Criminal Background

8. Long Term Impact • Loss of Employment Opportunity • People with criminal history ½ as likely to receive a follow up call • Impact stronger for African American men • Long Term Economic Inequality • People with criminal convictions work fewer hours, make less money, and demonstrate less economic mobility, even decades after conviction. • Impact on children with incarcerated parents Source: Western, B., and Pettit, B, “Collateral Costs: Incarceration’s Effect on Economic Mobility” (2010) • Increased Recidivism • Lack of housing and employment strongly correlated with re-offending. Source: Visher, C. and Courtney, S., “One Year Out: Experiences of Prisoners Returning to Cleveland”, Urban Institute (2007)

9. Background CheckS

10. What is a “Criminal Record”? • No single record • Two original sources of information repackaged in infinite combinations: • Law enforcement (Washington State Patrol) • Court records • Juvenile records public in WA • No conviction “washes out” or erases itself from court or law enforcement records.

11. What Information May Employers Have? • Application • State or federal law enforcement histories • Court records • Consumer reports

12. Applications • Pay attention to the question • Have you ever been arrested? Convicted? • Entered into a deferral? Pled Guilty • Answer accurately – failure to answer is a legal basis for denial • Problem: information beyond the scope of the question • Note: Seattle Jobs Assistance Ordinance (effective Nov. 2013) prohibits asking about criminal history on initial application

13. Law Enforcement Reports WATCH Reports (RCW • RCW 10.97.000 et. seq. • Include any disposition adverse to the subject • Do not include non-conviction data (pending arrests are included) • Available to anyone with $10 and an internet connection • Note: FBI records not generally available

14. Court Records

17. CRAs . . . And hundreds of other companies just like them.

18. Growth in the Background Check Industry • Since 2001, major player revenue grown at 34% annually • Increasingly mandated for licensed industries • 92% of employers conduct background checks on some or all applicants, up from 50% in 1996.

19. How Are Consumer Reports Prepared?

20. Problems in Consumer Reports • Approximately 20% of credit reports contain material errors • Misleading • Same charge reported multiple times • No disposition reported • Incorrect • Mismatch • Mischaracterization of charge • Incorrect/non current status • Incorrect disposition

21. What can a CRA report? • Convictions • For life • Unless the job pays less than $20,000 a year. Then, only for 7 years • Unless applying for rental housing in WA, then only for 7 years. • Juvenile Adjudications • For life • Unless job pays less than $20,000, and then only until the subject of records is 21. • Unless applying for a rental apartment in Washington – then only for 7 years • Arrests not resulting in conviction • Only for 7 years from date of arrest • Unless job pays more than $75,000, then for life

22. Your rights • Right to authorize: employers need written permission to get a report from CRA • Right to fair information: CRAs must comply with time limits in state and federal law • Right to reasonable procedures to ensure “maximum possible accuracy” of information in report • Right to notice: employer must give you notice and copy of the report BEFORE they take any adverse action • Right to dispute and correct

23. Employer Use of Background CheckS

24. How should an employer use your record? “[Arrest] records alone cannot be used to routinely exclude persons from employment.” Employers should consider conviction records only if they are “job related and consistent with business necessity.” -- The Equal Employment Opportunity Commission

25. “Business Necessity” At a minimum, employer must develop a “targeted screen” that takes into account 1) nature of job, 2) nature of conviction, 3) age of conviction. Employer can also avoid liability by providing an opportunity for “individualized assessment” of applicant.”

26. Individualized Assessment • The facts or circumstances surrounding the offense or conduct; • The number of offenses for which the individual was convicted; • Older age at the time of conviction, or release from prison; • •Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; • •The length and consistency of employment history before and after the offense or conduct; • •Rehabilitation efforts, e.g., education/training; • •Employment or character references and any other information regarding fitness for the particular position; and • •Whether the individual is bonded under a federal, state, or local bonding program

27. Documents: Individualized Assessment • Copies of court records • Proof of education/volunteer work • Proof of treatment/counseling • Information re: bonding (www.wa.gov/esd/oes/bond) • Recommendation letters • Probation, employers, clergy, community leaders, teachers, co-workers

28. Jobs with additional complications • Licensed professions: • Health care • Working with children and vulnerable adults, • Financial professions (mortgage, banking) • Security • www.abacollateralconsequences.org

29. Seattle Jobs Assistance Ordinance • Employer must • Consider individual evidence, including rehabilitation • Hold position open for 48 hours to consider evidence • Have legitimate business reason for decision • Employer cannot • Consider arrest alone • Obtain criminal history until after initial screen of qualified applicant • Advertise blanket ban

30. The Way the Process Should Work • Bob applies for a job • Bob is asked to authorize a background check • The background check is returned with adverse information • Bobisgiven a pre-adverse action notice, with a copy of the background check • Bob has a reasonable opportunity to disputewith the CRA • Joe has a reasonable opportunity to provide employer additional information about the offense, rehabilitation, past work experience • Employer weighs accurate and complete information to determine business necessity.

31. If the process breaks down • Ask for adverse action notice • Dispute promptly with CRA and request dissemination of corrected report • Provide individual assessment information • Document interactions with employer

32. Legal Remedies for Non-Compliance • Individual suit under Fair Credit Reporting Act • Administrative complaint under Title VII/ EEOC Guidance • Administrative complaint under Seattle Jobs Assistance Ordinance

33. Fair Tenant Screening • Before charging a screening fee, landlord must provide name of screening company and criteria used to screen applicants • Landlord must give written reason for denial • Screening reports cannot include convictions older than 7 years • Potential “disparate impact” charge

34. Relief Mechanisms

35. Vacating: Impact • Withdraws plea/adjudication and substitutes not guilty • Legally entitled to say never convicted • Prevents dissemination in WSP reports • FBI report updated to say “vacated”

36. Vacating: Eligibility (RCW 9.94a.640, RCW 9.96.060) • Complete all terms of sentence (including LFOS) • Waiting period starts at completion/certificate of discharge • 3-10 years waiting • No new convictions • No pending charges • No previous vacates (misdemeanors only)

37. Delete Non-Conviction Data (RCW 10.97.060) • 2 years since disposition • No new charges • No previous felony or gross-misdemeanor convictions • Discretion to deny for deferrals • Delete only law enforcement data: no impact on court data

38. Sealing Court Records Article I, s. 10 and GR 15 • Serious and imminent threat • To compelling interest • Outweighs public interest • Opportunity to object • Least restrictive sealing and limited duration • Note: Current GR 15, charge is public if a non-conviction is sealed.

39. Questions? Comments? THANK YOU!