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Working with a Record: Legal Strategies To Address a Job Seekers Criminal History Vanessa Torres Hernandez Staff Attorney, Second Chances Project Email: vhernandez@aclu-wa.org Slide 2 Overview Impact of Criminal History on Employment The Background Check Process Advocating for Applicants with Criminal History Other Issues: Housing and LFOs Relief Mechanisms Slide 3 THE IMPACT OF A CRIMINAL HISTORY Slide 4 Slide 5 Slide 6 Slide 7 No Criminal Background Slide 8 Long Term Impact Loss of Employment Opportunity People with criminal history 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: Incarcerations 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) Slide 9 BACKGROUND CHECKS Slide 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. Slide 11 What Information May Employers Have? Application State or federal law enforcement histories Court records Consumer reports Slide 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. Slide 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 charges are included) Available to anyone with $10 and an internet connection Note: FBI records not generally available Slide 14 Court Records Slide 15 Slide 16 Slide 17 CRAs... And hundreds of other companies just like them. Slide 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. Slide 19 How Are Consumer Reports Prepared? Slide 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 Slide 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 Slide 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 Slide 23 EMPLOYER USE OF BACKGROUND CHECKS Slide 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 Slide 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. Slide 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 Slide 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 Slide 28 Seattle Jobs Assistance Ordinance Employer must Notify individual if record reason for denial Hold position open for 48 hours after notice Consider evidence of rehabilitation provided Have legitimate business reason for decision Employer cannot Consider arrest alone Obtain criminal history until after initial screen of qualified applicant Advertise blanket ban Slide 29 Jobs with additional complications Licensed professions: Health care Working with children and vulnerable adults, Financial professions (mortgage, banking) Security www.abacollateralconsequences.org Slide 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 Bob is given a pre-adverse action notice, with a copy of the background check Bob has a reasonable opportunity to dispute with the CRA Bob 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. Slide 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 Slide 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 Slide 33 OTHER ISSUES: HOUSING AND LFOS Slide 34 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 Practices with disparate impact prohibited by HUD guidance Slide 35 LFOs Fines, fees, costs, restitution, surcharges, assessments assessed as a result of conviction Typically collect 12% interest Non-payment subjects individual to sanction including: Warrants Additional court hearings Incarceration for contempt Modification of sentence Slide 36 LFO: Relief Mechanisms Payment Plans Principal Relief: RCW 10.01.160(4) Interest Relief: RCW 10.82.090 Non-restitution Restitution Slide 37 RELIEF MECHANISMS Slide 38 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 Slide 39 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) Slide 40 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 Slide 41 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. Slide 42 THANK YOU! Questions? Comments?