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COUNCIL OF THE DISTRICT OF COLUMBIACOMMITTEE ON THE JUDICIARY AND PUBLIC SAFETYDRAFT COMMITTEE REPORT1350 Pennsylvania Avenue, NW, Washington, DC 20004

TO: All Councilmembers

FROM: Councilmember Tommy Wells, ChairpersonCommittee on the Judiciary and Public Safety

DATE: March 28, 2014

SUBJECT: Report on Bill 20-642, the “Fair Criminal Records Screening Amendment Act 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, reports favorably thereon with amendments, and recommends approval by the Council.

CONTENTS

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

I . B A C K G R O U N D A N D N E E D

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 prohibit employers from making any

Committee on the Judiciary and Public Safety May 28, 2014DRAFT Report on Bill 20-642 of 19

criminal history inquiry until after the first interview. The Committee made several amendments to the introduced bill, outlined in detail below.

BACKGROUND

Over the past few decades, there has been a significant increase in the number of Americans who have had contact with the criminal justice system.1 Between 1974 and 2001, the number of former prisoners living in the United States more than doubled, from 1,603,000 to 4,299,000. The United States now has the highest rate of incarceration in the world.2

There is no question that the “War on Drugs” is the single most significant factor contributing to these increases. Between 1985 and 2000, drug offenses alone accounted for two-thirds of the rise in the federal inmate population and more than half of the rise in state prisoners.3 There are more people in prisons and jails today for drug offenses than there were incarcerated for all reasons in 1980.4

In each year from 2009 through 2011, drug arrests accounted for just under 20 percent of all Metropolitan Police Department arrests – about one out of five arrests in the city.5 Over this same three-year period, 63 percent of drug arrests were for simple possession charges,6 and 46.9 percent of drug arrests were for marijuana.7 In 2010 alone, law enforcement 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 than tobacco and alcohol.8

Arrests in this city, however, have not been distributed evenly among all District residents. The central role that race plays in our criminal justice system cannot be ignored.9 In the District of Columbia, more than 80 percent of the 142,191 arrests that occurred between 2009 to 2011 were of African Americans.10 In 2010 alone, there were 40,353 arrests of adult African American Washingtonians, which is equivalent to 17 percent of the total number of adult African

1 See Thomas P. Bonczar, Bureau of Justice Statistics, U.S. Department of Justice, Prevalence of Imprisonment in the U.S. Population, 1974, 2001, p. 3 (2003). 2 In 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 in America 2008, PEW Charitable Trusts, 2008, p. 5; see also “Incarceration,” The Sentencing Project, 2012, available at http://www.sentencingproject.org/template/page.cfm?id=107.3 See Marc Mauer, Race to Incarcerate, The New Press, 2006, p. 33. 4 Testimony of Marc Mauer, Executive Director of the Sentencing Project, Prepared for the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, 11th Cong., Hearing on Unfairness in Federal Cocaine Sentencing: Is It Time to Crack the 100 to 1 Disparity? May 21, 2009, p. 2. 5 Washington Lawyers’ 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. Numbers: The War on Marijuana in Black and White,” p. 4.8 Id.; see also, Committee Report on Bill 20-409, the “Marijuana Possession Decriminalization Amendment Act of 2014,” available at http://lims.dccouncil.us/_layouts/15/uploader/Download.aspx?legislationid=29565&filename=B20-0409-CommitteeReport1.pdf.9 Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. Employment Justice Center, p. 2.10 Washington Lawyers’ Committee for Civil Rights and Urban Affairs, “Racial Disparities in Arrests in the District of Columbia, 2009-2011,” July 2013, p. 2.


American residents.11 Given the racial disparities in arrests, it should be no surprise that African Americans comprise approximately 90 percent of all inmates in the District’s corrections facilities.12

Increased Numbers of Individuals with Criminal Records

The harm to our city caused by arresting and incarcerating so many of our residents is compounded by the fact that every individual who is arrested or convicted of a crime will have a criminal record that persists long after a criminal sentence is served. It is estimated that approximately 92.3 million people in the United States have a state criminal record,13 with approximately 14 million additional arrests recorded each year.14 In the District of Columbia alone, it is estimated that approximately 60,000 people have a criminal record - about 10 percent of the current population.15 The number of District residents with a criminal record is increasing, as 8,000 people return to the District of Columbia each year after serving a sentence in prison or jail.16

A criminal record functions as a label that, once affixed, subjects an individual to a life-long stigma.17 While being labeled an “offender” or “felon” is itself a form of punishment, having a criminal record becomes particularly problematic when seeking employment, especially given the increased use of criminal background checks in employment.

Criminal Background Checks in Employment

Hiring employees can be an arduous and often costly process for employers, who must identify and select the best candidate for each position. Employers use a range of methods in order to obtain information about job applicants, including requesting a resume, calling references, and conducting an interview. Even after taking these steps, many employers admit to basing hiring decisions on a “gut feeling” about candidates.18 With employers seeking more information about applicants, criminal background checks have become an attractive tool for screening and differentiating applicants.19 One common explanation for the increased use of background checks is that employers want to assess the risks to their assets and reputations posed

11 Id.12 DC Department of Corrections Facts and Figures, April 2014, available at http://doc.dc.gov/sites/default/files/dc/sites/doc/publication/attachments/DC%20Department%20of%20Corrections%20Facts%20n%20Figures%20April%202014.pdf.13 U.S. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2008 (Oct. 2009), at Table 1, available at https://www.ncjrs.gov/pdffiles1/bjs/grants/228661.pdf.14 Federal Bureau of Investigation, Crime in the United States, September 2008, available at www.fbi.gov/ucr/cius2007.15 Council for Court Excellence, Unlocking Employment Opportunity for Previously Incarcerated Persons in the District of Columbia, 2011, p. 7.16 Id.17 Megan C. Kurlychek, Robert Brame, and Shawn D. Bushway, Scarlet Letters and Recidivism: Does An Old Criminal Record Predict Future Offending? p. 3, available at http://www.reentrycoalition.ohio.gov/docs/Bushway-ScarletLetters&CrimRecs-06.pdf.18 Philip Moss and Chris Tilly, Stories Employers Tell: Race, Skill, and Hiring in America, 2001, p. 209.19 Employers can obtain criminal history records from a wide variety of sources, including court records, law enforcement records, registries, state criminal record repositories, and the Interstate Identification Index.


by placing individuals with criminal histories in certain positions. Another common explanation is that employers fear being held liable for failing to exercise due diligence in determining whether an applicant poses an unreasonable risk to other employees or the public. The Council has already addressed this fear, however, by passing legislation that limits the liability of employers who hire returning citizens, so long as the hiring decision was made in good faith in light of seven statutory factors.20

The use of background checks in employment is becoming more common,21 despite research indicating that criminal convictions are a poor predictor of counterproductive work behaviors.22 The use of background checks in hiring is also troubling given that these records are often times irrelevant to the position advertised. The possession of an arrest record, for example, does not necessarily indicate that someone has ever engaged in criminal conduct, as many individuals who are arrested are never charged and many others are acquitted of any wrongdoing at trial.23 Similarly, some convictions are so unrelated to the job being sought, whether due to the

20 Section two of the Returning Citizen Public Employment Inclusion Amendment Act of 2010, effective June 15, 2013 (D.C. Law 19-319; codified in scattered cites in the D.C. Official Code), provides:

“Information regarding a criminal history record of an employee or a former employee shall not be introduced as evidence in a civil action against an employer or its employees or agents if that information is based on the conduct of the employee or former employee, and if the employer has made a reasonable, good-faith determination that thefollowing 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 employee’s criminal background will have on the applicant’s or employee’s fitness or ability to perform one or more of the duties or responsibilities related to his or her employment;(3) The time that has elapsed since the occurrence of the criminal offense;(4) The age of the person at the time of the occurrence of the criminal offense;(5) The frequency and seriousness of the criminal offense;(6) Any information produced regarding the applicant’s or employee’s rehabilitation and good conduct since the occurrence of the criminal offense; and(7) The public policy that it is generally beneficial for persons with criminal records to obtain employment.

21 See Society for Human Resources Management, Background Checking: Conducting Criminal Background Checks (Jan. 22, 2010), p. 3 (noting that approximately 92% of members – which were mostly large employers – perform criminal background checks on some or all job candidates). 22 Researchers have suggested a number of possible explanations regarding why there seems to be no real connection between an applicant’s criminal history and the likelihood the applicant will misbehave 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 losing one’s job is greater for those with a criminal record, which leads these individuals to be more careful on the job to avoid getting fired. A third explanation is that criminal convictions are an inaccurate indicator of illegal behavior, given that many crimes go undetected. This could imply 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 are caught spend less time employed, and as a result have less opportunities to engage in counterproductive work behavior. Brent W. Roberts, Peter D. Harms, Avshalom Caspi, Terri E. Moffitt, “Predicting the Counterproductive Employee in a Child-to-Adult Prospective Study,” Management Department Faculty Publications (2007), paper 45, p. 1434, available at http://digitalcommons.unl.edu/managementfacpub/45.23 See Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. Employment Justice Center, p. 1 (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://www.bjs.gov/content/pub/pdf/fdluc04.pdf.


nature of the offense or the amount of time that has passed since the offense, that consideration of the conviction record can serve no legitimate business reason. In addition, criminal background checks are known to contain inaccuracies.24 Studies show that even when criminal records are sealed or expunged by court order, the court cannot guarantee that all private companies will also erase such information from their systems.25

Furthermore, the increased use of criminal background checks threatens the District’s public safety by discouraging the employment of returning citizens, thereby increasing recidivism rates. The use of background checks creates a Catch-22 for returning citizens, where finding employment is key to successfully reentering society,26 but finding employment is difficult, if not impossible, once one has a criminal record.27 Within three years of being released from jail or prison, about 50 percent of returning citizens will reenter the criminal justice system, and whether or not a returning citizen can find employment is one of the best predictors of recidivism.28

Criminal records create significant barriers to reentering society that can persist long after a criminal sentence has been served. Once an individual has a criminal record, they can be subjected to legal discrimination in employment, housing, credit, and education. As a result, approximately half of returning citizens in the District are unemployed.29

The Committee received testimony from a number of previously incarcerated individuals who had been denied employment automatically because of their criminal history. For example, Alisha Carrington, the Lead Violence Prevention Outreach Facilitator at Free Minds Book Club and Writing Workshop, stated “I also soon learned that securing even the most entry level retail and food service positions would be all but impossible. Once Free Minds members check the felony box we check off hope because we quickly find out no one wants us. Feeling shut out from employment makes the pain and stigma of mistakes made when we were so young feel like a ‘life sentence.’” Similarly, Sherman Justice, a public witness, noted that even though he served his time, he basically has to keep re-serving each time he checks the box on a job application.

Another witness, James White testified that when he tried to get a job in maintenance at a local university, the hiring agent “watched [him] as [he] filled out the application” and “[w]hen

24 The United States Department of Justice, The Attorney General’s Report on Criminal History Background Checks, June 2006, p. 40, available at http://www.justice.gov/olp/ag_bgchecks_report.pdf.25 SEARCH: The National Consortium for Justice Information and Statistics, Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, 2005, p. 83, available at http://www.search.org/files/pdf/RNTFCSCJRI.pdf.26 Written Testimony of Marina Streznewski, DC Jobs Council, p. 1 (“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 2001 survey of 600 employers in Los Angeles County found that 40 percent of these employers would not be willing to hire an applicant with a criminal record, and that only 20 percent of these employers had hired at least one applicant with a criminal record. Hozer, Harry J., Raphael, Steven, and Stoll, Michael, “How Willing Are Employers to Hire Ex-Offenders,” Vol. 23, No. 2 (Summer 2004). 28 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 unemployment rate of 46 percent. Council for Court Excellence, Unlocking Employment Opportunity for Previously Incarcerated Persons in the District of Columbia, 2011, p. 9.


[he] checked the box that indicated that [he] had a criminal record, she immediately took the application and said that [he] would not be hired.”30 Despite Mr. White’s strong recommendations from a former employer, Mr. White was “somehow too dangerous to clean floors.”31 Mr. White’s testimony clarifies that high unemployment rates of returning citizens is, in large part, a result of unfair hiring practices that automatically disqualifies individuals with criminal records. This problem is not unique to Mr. White or the District of Columbia, and cities and states around the country have developed innovative solutions to address these problems.

A Solution: Ban the Box

Over the past decade, jurisdictions across the country have joined 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 that asks applicants to indicate whether they have a criminal record. “The box” commonly appears on applications and is often used to disqualify applicants with criminal records – as happened with Mr. White – because it offers a quick tool for employers to screen and differentiate applicants. Realizing the harm caused by automatically disqualifying applicants with criminal records, more than 60 jurisdictions across the country have enacted legislation to prohibit employers from asking about an applicant’s criminal history on the application, or even during the initial stages of the hiring process.

Hawaii was the first state to ban the box in 1998, starting a movement that has grown significantly in the past few years. There are now 10 states and more than 50 cities and counties, nationwide, that have passed some form of “ban the box” legislation. Ban the box legislation varies greatly between different jurisdictions, but all share the goal of removing barriers to employment for individuals with criminal records. To date, the majority of these ban the box laws apply only to public or government employers.

In 2010, the Council passed the “Returning Citizen Public Employment Inclusion Amendment Act of 2010,”32 which established procedures governing how and when the District government may investigate the criminal background of applicants seeking employment with the government. Specifically, this law prohibits, for certain “non-covered positions,” public employers from investigating an applicant’s criminal history until after the initial screening of applications.33 Since passing the Returning Citizens Public Employment Inclusion Act of 2010, the Office of Human Resources found that 76 percent of applicants with a criminal record were still suitable for government employment. Without ban the box legislation in place, these applicants would likely have been disqualified.

Based on the success of banning the box for public employers, some jurisdictions have expanded ban the box legislation to apply to all employers, including those in the private sector.

30 Oral Testimony of James White. 31 Tommy Wells’ “Ban the Box” Bill Gets Strong Support, Washington Examiner, February 10, 2014, available at http://washingtoninformer.com/news/2014/feb/10/tommy-wells-ban-the-box-bill-gets-strong-support/.32 The Returning Citizen Public Employment Inclusion Amendment Act of 2010, 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 of 2010, effective June 15, 2013 (D.C. Law 19-319; 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.


So far, 10 jurisdictions have banned the box for private employers,34 with additional jurisdictions expected to pass similar legislation this year.

Although the Committee received some testimony in opposition to Bill 20-642, the Committee received no testimony indicating that ban the box legislation in other jurisdictions has been unsuccessful or otherwise harmful to businesses. Given that the ban the box movement started more than fifteen years ago, the total absence of evidence indicating 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.

The vast majority of witnesses at the public hearing on Bill 20-642 testified in support of the legislation. These witnesses noted the many benefits of adopting policies, such as those contained in Bill 20-642, that encourage the hiring 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 returning citizens promotes public safety by reducing recidivism.35 Studies have shown that employment increases the amount of time that previously incarcerated persons spend crime-free before returning to prison,36 and that reducing the period of unemployment of returning citizens by three months would decrease recidivism rates by 5 percent.37 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 of this legislation, “arrest” means “being apprehended, detained, taken into custody, held for investigation, or restrained by a law enforcement agency due to an accusation or suspicion that the person committed a crime.” The committee print, like the introduced version of the bill, prohibits employers from making any inquiry about an applicant’s prior arrests. As discussed above, the consideration of an applicant’s arrest record is prohibited because the mere fact that an individual was arrested is not proof that he or she engaged in criminal conduct. Furthermore, such a prohibition appropriately reflects our society’s strong belief that people are innocent until proven guilty. The Committee did not receive testimony opposed to the bill’s provisions relating to arrests, and even organizations that testified in opposition to Bill 20-642 indicated support for these provisions.38

34 4 states (Massachusetts, Minnesota, Hawaii, and Rhode Island) and 6 cities (Seattle, Buffalo, Philadelphia, San Francisco, Baltimore, and Newark). 35 Council for Court Excellence, Unlocking Employment Opportunity for Previously Incarcerated Persons in the District of Columbia, 2011, p. 8.36 John Schmitt and Kris Warner, Ex-Offenders and the Labor Market, Center for Economic and Policy Research, November 2010, available at http://www.cepr.net/documents/publications/ex-offenders-2010-11.pdf.37 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry, Urban Institute Press, 2005.38 Written Testimony of Kathy E. Hollinger, President and CEO, Restaurant Association Metropolitan Washington (RAMW), p. 1 (“RAMW unequivocally agrees with the provision of the bill, which prohibit the use of arrest records in making employment decisions. The presumption of innocence, so important in our society and culture, should certainly extend to employment matters.”).


Conviction Records

For purposes of this legislation, “conviction” means “any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation or a sentence of unconditional discharge.” Bill 20-642 would not prohibit employers from asking applicants about prior criminal convictions, which are more probative of criminal behavior than arrest records. Rather, the committee print prohibits employers from asking about criminal convictions until after the first interview. Discussions regarding an applicant’s criminal convictions should be delayed in this manner for a number of reasons.

Delaying such questions is necessary to ensure that applicants are not automatically disqualified based solely on a checkmark, and instead are considered on an individual basis. Banning the box for the District government demonstrated that most individuals with criminal records are determined to be suitable for employment once the employer learns more about the applicant. Delaying questions about criminal convictions also gives the applicant the chance to correct an inaccurate criminal record or to explain the circumstances that led to his or her arrest. Research confirms that personal contact plays an important role in mediating the effects of a criminal record on the hiring process.39 Applicants who have the opportunity to interact with the employer were between four and six times more likely to receive a callback or job offer than those who do not.40

While criminal records have negative impacts on employment prospects, some employers are willing to look beyond the record, or to downplay its significant in the context of other information acquired during the interview. Employment prospects improve significantly for applicants who have a chance to interact with the hiring manager, and more so among those who are able to elicit sympathetic responses in the course of those interactions.41 “The box” misguides employers by not letting employees with talent address their criminal history. Only by delaying questions about criminal convictions will this legislation achieve its purpose of allowing applicants to get a “foot in the door” so that they can make their case to the hiring manager.

As introduced, Bill 20-642 delayed inquiry into an applicant’s conviction record until after the applicant has received a conditional offer of employment, which isolates the consideration of the criminal record, allowing an applicant to know with certainty why he or she was not hired. Of the nine jurisdictions that have “banned the box” for private employers, three of those jurisdictions prohibit criminal record inquiries before the applicant is given a conditional offer of employment.42 During and after the public hearing on Bill 20-642, the Committee received testimony suggesting that the bill be amended to allow employers to ask about an applicant’s criminal record earlier in the hiring process.43 A number of organizations expressed

39 Devah Pager, Bruce Western, Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Record, May 2009, p. 5.40 Id.41 Id. at p. 7-9.42 Baltimore, Newark, and Hawaii.43 Written Testimony of Kathy E. Hollinger, President and CEO, RAMW, p. 3 (“RAMW and its members favor an approach that provides protection to applicants, but allows employers the ability to make an inquiry earlier, at the interview stage . . .”); Submitted Written Testimony of Barbara Lang, DC Chamber of Commerce, p. 2-3 (“The current legislation goes to the furthest end of the spectrum (conditional offer of employment) with relation to the


concern that requiring employers to wait until a conditional offer of employment is extended was too burdensome on employers, who would be required to go through the entire hiring process before learning of the applicant’s conviction record.44 Employers would then need to restart the hiring process at a time when previous applicants may no longer be interested in the position. In addition, requiring employers to wait until a conditional offer would also be unfair to applicants, who may receive a job offer, only to have it taken away once the employer learned about their criminal conviction.45

The Committee agrees with this testimony and concludes that employers should be able to ask about a job applicant’s criminal convictions after the first interview. This amendment strikes the right balance between protecting job applicants from automatic disqualification and asking employers to go through the entire hiring process before asking about 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 complaint with the Office of Human Rights.46 This administrative remedy is exclusive and no person shall have a private cause of action based on a violation of this legislation.47 At the public hearing on Bill 20-642, a number of witnesses suggested that the bill be amended to provide a private right of action, so that applicants can defend their rights in court.48 A private right of action was included in the last ban the box bill considered by the Council, but this provision was strongly criticized and ultimately removed, by a unanimous vote, at mark-up.49 By providing administrative remedies, the committee print holds employers accountable for unfair hiring practices, while not encouraging litigation that can be costly and difficult for non-lawyers to navigate.

phase of the hiring process that an employer may conduct a background investigation. We prefer the more common approach, which allows the employer to conduct a check after the first interview of initial screening process instead of after a conditional offer.”). 44 Submitted Written Testimony of Solomon Keene, Jr., President, Hotel Association of Washington, D.C., p. 2 (“It would be truly burdensome to have staff interview these applicants and offer employment, only to find out after an offer of employment is made, and a background check is paid for, that the applicant cannot be hired due to his or her prior conviction that may pose a risk of harm to guests or the hotel. The staff must now repost the position and start the application process all over again to find a qualified candidate.”). 45 Submitted Written Testimony of Solomon 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 would 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 Complaints filed under this legislation will be adjudicated pursuant to the powers and procedures set forth in sections 301-312, 314-315, and 317 of the Human Rights Act of 1977.47 Of the ten jurisdictions that have “banned the box” for private employers, only Buffalo, New York has provided a private cause of action. 48 Written Testimony of Marina 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 employer documents and the opportunity to cross-examine witnesses”). 49 Committee Report 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 0.”).


This bill authorizes the Commission on Human Rights to penalize employers who violate its provisions. The Commission can fine the employer in an amount based on the size of the employer: (1) for employers that employ 11 to 30 employees, the Commission shall impose up to a $1,000 fine; (2) for employers that employ 31 to 99 employees, the Commission shall impose up to a $2,500 fine; and (3) for employers that employ 100 or more employees, the Commission shall impose up to a $5,000 fine. Under this tiered-fine system, larger fines are reserved for the largest employers, whereas smaller employers will not be penalized as much.50

Fee Sharing

As introduced, Bill 20-642 would have deposited all fines levied against employers into the General Fund. The Committee received testimony, however, suggesting that Bill 20-642 did not provide encouragement for job applicants to file complaints, given the time and resources required to adjudicate such complaints.51 At the public hearing on Bill 20-642, Ari Weisbard, Esq., Deputy Director, Employment Justice Center, suggested that “the bill can give job applicants who successfully demonstrate violations a set amount of ‘statutory damages’ in order to encourage them to report violations, rather than merely including penalties that will be paid to the District.”52

The Committee also received a letter from Community Legal Services of Philadelphia (CLS) - an organization that worked for passage of Philadelphia’s ban the box ordinance in 2011 - stating that the lack of any compensation to those whose reports of violations result in fines against businesses is one critical omission from the Philadelphia ordinance.53 CLS believes that the lack of a monetary incentive “has had a direct impact on the number of complaints being filed, which in turn has hurt the city’s ability to enforce the law.”54 Because “job seekers have much higher priorities than going out of their way to complain about an illegal job application form,” providing an incentive for job applicants to file a complaint would increase the number of complaints filed.55

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

Exceptions

As an initial matter, employers with fewer than 11 employees are exempted from this legislation. This exemption reflects the bill’s desire to balance the importance of ban the box

50 The smallest businesses, those with less than 11 employees, are completely exempt from this bill.51 Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. Employment Justice Center, p. 4 (“[W]e also cannot ask job applicants who are already experiencing difficulty making a living to file a claim and work for months to pursue the claim without any hope of any compensation.”). 52 Written Testimony of Ari Weisbard, Esq., Deputy Director, D.C. Employment Justice Center, p. 4.53 Letter from Brendan Lynch, Community Legal Services of Philadelphia, March 10, 2014. 54 Id.55 Id.


legislation with the burden any such legislation may impose on small businesses. Such an exemption is similar to that provided by other jurisdictions.56

Bill 20-642 contains two additional exemptions. First, this legislation does not apply where any federal or local law or regulation requires the consideration of an applicant’s criminal history. Second, this legislation shall not apply to any positions designated by the employer to participate in a federal or local government program or obligation that is designed to encourage the employment of those with criminal records. In such instances, the goals of the employer are presumed to be consistent with the goals of this legislation: to give returning citizens employment opportunities.

For the reasons explained above, the Committee recommends passage of the bill as amended.

I I . L E G I S L A T I V E C H R O N O L O G Y

January 7, 2014 Bill 20-642, “Fair Criminal Record Screening Act of 2014,” is introduced by Wells, Barry, Bowser, Bonds, Orange, McDuffie, Graham, and Chairman Mendelson, and co-sponsored by Councilmembers Grosso, Alexander, and Evans, and is referred to the Committee on the Judiciary and Public Safety.

January 10, 2014 Notice of Intent to act on Bill 20-642 is published in the District of Columbia Register.

January 24, 2014 Notice of a Public Hearing is published in the District of Columbia Register.

February 10, 2014 The Committee on the Judiciary and Public Safety holds a public hearing on Bill 20-642.

March 28, 2014 The Committee on the Judiciary and Public Safety marks-up Bill 20-642.

I I I . P O S I T I O N O F T H E E X E C U T I V E

Mόnica Palacio, Acting Director, Office of Human Rights (OHR), testified that the Executive supported Bill 20-642 in principle, but she raised a number of concerns about how the bill would be enforced by the OHR and what tools and resources OHR would need to successfully implement the bill if enacted. Ms. Palacio noted that Bill 20-642 includes some provisions adopted in other jurisdictions, but she stated that it goes further than any other law that OHR reviewed in its prohibition against employer inquiries and research into an applicant’s criminal background.

56 Of the ten jurisdictions that have applied ban the box legislation to private employers, four of the jurisdictions exempt employers with less than ten employees: Baltimore, Philadelphia, Buffalo, and San Francisco.


Ms. Palacio’s testimony consisted of a number of hypotheticals, which highlighted areas of concern. For example, Ms. Palacio wondered how OHR could prevent employers from conducting internet searches on applicants’ criminal records and whether an employer would be allowed to retrieve a criminal background earlier in the hiring process if the employer agreed not to review it until after making a conditional offer. Similarly, Ms. Palacio wondered whether an employer could exclude from employment those convicted of certain criminal offenses (such as sex offenses, manslaughter, or murder).

Ms. Palacio stated that OHR would require additional resources to enforce the bill. Specifically, Ms. Palacio stated that the legislation would require a minimum of 2 to 4 full time employees. Ms. Palacio also suggested a technical correction that OHR believed to be a drafting error. Finally, Ms. Palacio stated that OHR looks forward to working with the Council to address the concerns raised in her testimony.

I V . C O M M E N T S O F A D V I S O R Y N E I G H B O R H O O D C O M M I S S I O N S

The Committee received no testimony or comments from Advisory Neighborhood Commissions.

V . S U M M A R Y O F T E S T I M O N Y A N D S T A T E M E N T S

The Committee on the Judiciary and Public Safety held a public hearing on Bill 20-642 on Monday, February 10, 2014. The testimony summarized below is from that hearing. A copy of all written testimony received is attached to this report; the video recording of the hearings (available online at http://oct.dc.gov/services/on_demand_video/channel_13.asp) is incorporated by reference. The Hearing Record is on file with the Office of the Secretary of the Council.

The following witnesses testified at the hearing or submitted statements outside of the hearings:

Courtney Stewart, Chairman, The Reentry Network for Returning Citizens, Inc., testified in support of B20-642. Mr. Stewart stated that the bill will help restore confidence and get people back on their feet enthusiastically looking for work. Mr. Stewart also stated that the bill will send a firm message that discriminatory screening practices will not be tolerated and the city will not do business with companies who discriminate against people who are otherwise qualified for the job.

Marina Streznewski, Executive Director, DC Jobs Council, testified in support of Bill 20-642. Ms. Streznewski stated that the penalties in the bill must be high enough to change employer behavior, but not so high as to be excessively burdensome. Ms. Streznewski also suggested a number of amendments to the bill, including expanding the bill’s definition of “employer” to include all employers and adding a limited private right of action so complainants can have the opportunity for a full hearing in court.


Ari Weisbard, Deputy Director, Employment Justice Center, testified in support of Bill 20-642 in principle, but he had some concerns to ensure that the final bill is comprehensive in scope and contains effective enforcement measures. Mr. Weisbard expressed concerns about the Office of Human Rights’ role as the enforcing agency for the bill because OHR investigations do not provide employees 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 that the bill provide “statutory damages” to aggrieved applicants, in order to provide an incentive for an aggrieved applicant to take the time and resources required to file a complaint.

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

Kathy Hollinger, President, Restaurant Association Metropolitan Washington, testified in support of the provisions of the bill that prohibit the use of arrest records in making employment decisions and those that prohibit the use of the box on job applications, but in opposition to the remaining provisions of the bill. Ms. Hollinger stated the Council should consider the potentially burdensome and expensive hiring process that would be required by the bill. Ms. Hollinger stated she favors an approach that provides protection to applicants, but allows employers the ability to make an inquiry earlier, at the interview stage, and abort the applicant’s candidacy if there exists a legitimate business reason to do so.

Nikki Lewis (no written statement), Executive Director, DC Jobs with Justice, testified in support of Bill 20-642, stating that banning the box is a quick and easy first step to address the problems faced by individuals with criminal records. Ms. Lewis testified that banning the box in the public sector was successful, and that similar prohibitions should be extended to the private sector and housing.

Matthew Handley, Director, Equal Employment Opportunity Project, Washington Lawyers’ Committee for Civil Rights & Urban Affairs, testified in support of Bill 20-642. Mr. Handley urged the Committee to include a private right of action in the legislation. Mr. Handley believes that the adversarial process is an important part of civil rights legislation. Mr. Handley also suggested that the bill include housing.

Aja G. Taylor, Community Organizer, Bread for the City, testified in support of Bill 20-642. Ms. Taylor noted a correlation between stable employment and reduced recidivism. Ms. Taylor explained that she has met countless people who are unfairly excluded from employment because of their criminal record. Ms. Taylor suggested that the bill be amended to provide a timeline, so that the adjudication of complaints occurs in a timely manner. Ms. Taylor also suggested that the bill should be expanded to include housing.

Phylisa Carter, Senior Staff Attorney, Community Lawyering Project, Bread for the City, testified in support of Bill 20-642. Ms. Carter noted that a large segment of District


residents are excluded from sharing in the city’s prosperity because of their criminal record. Ms. Carter also suggested that the bill be expanded to include housing because many returning citizens are barred from subsidized housing or shelters.

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

Alisha Carrington, Community Outreach Assistant, Free Minds Book Club & Writing Workshop, testified in support of Bill 20-642. Ms. Carrington stated that the box on applications makes the pain and stigma of mistakes made when she was younger feel like a “life sentence.” Ms. Carrington stated that individuals with criminal records look ahead and know that they will face workplace discrimination for years and years to come, all because of a mistake made 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 citizen and be an advocate for all the voiceless people he knows behind bars. Since his release, Mr. Justice works two part-time jobs and has an internship, yet he has been unable 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 he couldn’t start because of his criminal record. Mr. Justice noted that even though he served his time, he basically has to keep re-serving each time he checks the box on a job application.

James White (no written statement), Public Witness, testified in support of Bill 20-642. Mr. White shared his personal experiences with unfair hiring practices because of his criminal records. Mr. White stated that he was automatically disqualified from jobs, despite his qualifications and recommendations from former employers. Mr. White indicated that having stable employment and housing is essential to successful reintegration.

Brenda Burnett (no written statement), Public Witness, testified in support of Bill 20-642. Ms. Burnett stated that she has seen how difficult it has been for women at her church to find employment because of their criminal history. Ms. Burnett described the unfairness of automatically disqualifying applicants because they check the box on the application.

Jeremiah Lowery, Research and Policy Coordinator, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Mr. Lowery noted that by delaying when employers can ask about criminal records actually saves businesses money because employers would then only be conducting background checks on qualified applicants. Mr. Lowery stated that ban the box legislation gives city-dwellers pride in their community and it shows that they trust their fellow residents to participate in the economy with them.


Catherine Bryant, Waitress, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Ms. Bryant stated that she has personally seen former drug addicts and sex-workers become excellent professional employees by changing the course of their lives. Ms. Bryant pointed out that having a criminal record is irrelevant because individuals without criminal records may have committed the same crimes, but they simply were not caught. Ms. Bryant stated that “the box” misguides employers by not letting employees with talent address their legal past.

Carrie Hathem, Restaurant Opportunities Center of DC, testified in support of Bill 20-642. Ms. Hathem stated that the District already bans the box on government employment applications and that this proves that banning the box does help eliminate hiring barriers for returning citizens and that successful integration into the workforce is possible. Ms. Hathem also stated that banning the box will add to the diversity of those currently in the 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 that the bill would be substantially strengthened by including provisions that would extend similar protections to individuals with criminal records in the housing context. Mr. Le noted that ensuring access to stable housing facilitates reintegration of individuals with criminal records.

Nassim Moshiree, Staff Attorney, Washington Legal Clinic for the Homeless, testified in support of Bill 20-642. Ms. Moshiree suggested extending the bill’s protections to housing. Ms. Moshiree stated that through her job, she encountered countless District residents who faced nearly insurmountable barriers to affordable housing because of past criminal histories. Ms. Moshiree stated that having a criminal history does not accurately predict whether someone will make a good tenant.

Patricia Fletcher, Public Witness, testified in support of Bill 20-642. Ms. Fletcher stated that she was terminated from a teaching position because of her criminal record after she had held the position for nearly a year. Ms. Fletcher stated that because of her criminal record, she lives in fear and uncertainty about her future and she wonder whether she will be able to use her skills to improve her quality of life.

Eugene Puryear, Public Witness, testified in support of Bill 20-642. Mr. Puryear stated that asking someone for their criminal record when they seek employment acts as a significant bar to successfully obtaining work. Mr. Puryear stated that individuals with criminal records are consigned to second-class citizenship by virtue of their criminal history. Mr. Puryear believed that discriminating against someone for a past crime after they have been to prison and duly released is an extrajudicial punishment with no real basis – either you get a second chance or you don’t.

Perry Redd, Executive Director, Sincere Seven, testified in support of Bill 20-642. Mr. Redd stated that since he was released from prison, he has applied to more than 200 jobs over the course of three years, yet he is still unemployed. Mr. Redd believes that this legislation should be more comprehensive, 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 who make mistakes should be given a second chance. Mr. Sindram stated that he considers this bill similar to Don’t Ask Don’t Tell. Mr. Sindram stated that the District is flush with cash and that the District should create a veterans court.

Dwayne Jordan, Public Witness, testified in support of Bill 20-642. Mr. Jordan stated that he has a felony drug charge from 2010, which will stay on his record until at least 2018. Mr. Jordan shared his personal experiences of being denied employment because of his criminal history. Mr. Jordan suggested that the legislation be extended to housing because he believes his sobriety and stability is a result of having stable housing.

Kenya Massie, Youth Organizer, Sasha Bruce Youthwork, testified in support of Bill 20-642. Ms. Massie stated that discriminatory hiring practices impact not just returning citizens, but children and family members of these citizens too. Ms. Massie believed that such hiring practices cause youth to start to doubt themselves.

G. Lee Aikin, Public Witness, testified in support of Bill 20-642. Mr. Aikin 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 simple problems. Mr. Aikin also suggested that criminal records should be automatically sealed.

Rhonda Moffitt, Public Witness, testified in support of Bill 20-642. Ms. Moffitt described her frustration when she was hired to work at Wal-Mart, but then was told that she could not have the job because of her criminal record. Ms. Moffitt stated that she was denied employment because of something that happened a long time ago, but is continually holding her back. Ms. Moffitt encouraged the Council to pass this bill, so that she can truly have a second chance.

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

Jessica Steinberg, Associate Professor of Clinical Law, The George Washington University Law School, submitted testimony in support of Bill 20-642. Ms. Steinberg stated that the bill strikes the appropriate balance of ensuring that employers retain free exercise in hiring only those employees who are qualified and have the requisite skills and experience to perform well on the job, while at the same time ensuring that employment applicants with criminal records have a fair opportunity to obtain employment. Ms. Steinberg suggested amending the bill to make it mandatory for an employer revoking a conditional offer of employment to issue both a statement of denial and a copy of all criminal records the employer procured in consideration of the applicant.


Robert A. Malson, President, District of Columbia Hospital Association, submitted testimony on Bill 20-642. Mr. Malson suggested that the bill be amended to explicitly exempt entities licensed under the Health-Care and Community Residence Facility, Hospice and Home Care Licensure Act of 1983, which prohibits hospitals and other health facilities from hiring individuals convicted of certain crimes.

Sally Kram, Director of Governmental and Public Affairs, Consortium of Universities of the Washington Metropolitan Area, submitted testimony expressing the Consortium’s concerns about how the bill would affect the hiring process and how it would be administered by the government. Ms. Kram wrote that the Consortium was unsure why the bill varies so significantly from the law the District government applies to itself.

Solomon Keene, Jr., President, Hotel Association of Washington, D.C., submitted testimony stating that the bill would be overly burdensome on employers. Mr. Keene suggested that the bill be amended to allow the employer to ask about criminal convictions earlier in the hiring process. Mr. Keene stated that hotels should not be forced to make hiring decisions that may be detrimental to their business or put the well-being of guests and employees at risk.

Andrew A. Porter, Chairman, Alliance for Construction Excellence, submitted testimony expressing the Alliance’s concerns with the bill. Mr. Porter stated that it would be unacceptable for individuals with criminal records to enter secured sites such as military or government installations, or schools. Mr. Porter stated that background checks are an absolute in the construction business, and thus requested that the construction industry be exempt from the bill’s coverage.

Barbara Lang, President, DC Chamber of Commerce, submitted testimony in opposition to Bill 20-642. Ms. Lang stated that the Council should focus on improving the availability of skilled workers rather than trying to assign blame on the business community and constantly changing the law on hiring. Ms. Lang indicated that she was pleased that Bill 20-642 did not create a protected class for returning citizens under the Human Rights Law, the Chamber could not support the legislation as written. Ms. Lang suggested a number of amendments to the bill, including allowing employers to ask about criminal convictions after the first interview.

Brendan Lynch, Staff Attorney, Community Legal Services of Philadelphia, submitted testimony explaining his view of the experience that Philadelphia has had in implementing and enforcing its ban the box legislation. Mr. Lynch stated that one critical omission from Philadelphia’s ordinance is the lack of any compensation to those whose reports of violations result in fines against businesses. Mr. Lynch believes that if job seekers could reasonably expect some small compensation when they file complaints which turn out to be valid, the number of complaints would increase, thus allowing the law to do its job.

V I . I M P A C T O N E X I S T I N G L A W

Bill 20-642 amends the Returning Citizen Public Employment Inclusion Amendment Act of 2010, effective June 15, 2013 (D.C. Law 19-319; codified in scattered cites in the D.C. Official Code), by adding a new part that would ensure that criminal records are screened fairly.


Specifically, Bill 20-642 would prohibit employers from inquiring about an applicant’s criminal history until after the first interview. Employers who violate this bill can be fined in an amount based on the size of the employer. Bill20-642 also requires the Office of Human Rights to maintain data on the number of complaints filed and demographic information on the complainants.

V I I . F I S C A L I M P A C T

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

V I I I . S E C T I O N - B Y - S E C T I O N A N A L Y S I S

Section 1 States the short title of Bill 20-642.

Section 2 (a) Provides definitions for terms used in Bill 20-642.

(b) Prohibits covered employers from asking job applicants if they have ever been 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 section do not apply where any federal or District law requires the consideration of an applicant’s criminal history or where the position has been designated by the employer as part of a federal or District government program designed to encourage the employment of those with criminal records.

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

(d) Employer will be fined in an amount based on the size of the employer: (1) for employers that employ 11 to 30 employees, the Commission shall impose up to a $1,000 fine; (2) for employers that employ 31 to 99 employees, the Commission shall impose up to a $2,500 fine; and (3) for employers that employ 100 or more employees, the Commission shall impose up to a $5,000 fine. Half of all fines levied will be given to the complainant.

(e) Requires the Office of Human Rights to maintain data on the number of complaints filed under this bill, demographic information on the complainants, the number of investigations it conducts, and the disposition of every complaint and investigation.

Section 3 Adopts the fiscal impact statement.

Section 4 Provides the effective date.


I X . C O M M I T T E E A C T I O N

On March 28, 2014, the Committee met to consider Bill 20-642. The meeting was called to order at __:__ _M,. After ascertaining a quorum (Chairperson Wells and Councilmembers __, __, and __), Chairperson Wells moved the report, with leave for staff to make technical, editorial, and conforming changes. After an opportunity for discussion, the vote to approve the report was _______ ( ). Chairperson Wells then moved the print, with leave for staff and the General Counsel to make technical changes and conforming changes.

Councilmember ______began the discussion . . .

After an opportunity for discussion, the vote to approve the print was _________ (__).The meeting adjourned at __:__ _M.

X . A T T A C H M E N T S

1. Bill 20-642 as introduced.

2. Written list.

3. Fiscal impact statement.

4. Legal sufficiency determination by the General Counsel.

5. Comparative Print.

6. Committee Print for Bill 20-642.

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