A BRIEF HISTORY OF BAD CHOICES
I'm friends with some very thoughtful minority business owners who have made a conscious decision to hire ex-cons who’ve exhibited a willingness to bootstrap themselves up from where they used to be. One is Jailhouse Christian who has been blessed with financial success. His own faith took root while he was an inmate at Wasco State Prison. He now runs a very successful auto repossession business, but also suffers from the searing pain of having had to bury his own son, who he lost to the world of gangs and drugs. Another is an ex-con who runs an automotive service business in San Fernando. Both are outstanding human beings. But, unlike most business owners, they measure their success by the number of lives they can touch, not the number of dollars in their bank account. They each probably give away more money than they keep, but, as one of them puts it, “as long as he keeps blessing other people, the Lord keeps blessing him.” As much as I admire both of these men, it is clear that their business experience is not representative of the business community at large. The business community is risk-averse, and hiring people with a sordid past can be risky, especially if that past includes violence. When the City of Los Angeles enacted FCIHO, the Fair Chance
Initiative for Hiring Ordinance, city rule makers wanted to encourage employers
to give people with prior criminal histories a chance. Starting January 1,
2017, Los Angeles businesses that employ ten or more employees have been given
new mandates that are supposed to be more forgiving to those of us with a
sordid past.
BACKGROUND
Let’s clear the air about pre-employment screening. The City of Los Angeles bureaucrats meant well. The old “have you ever been arrested?” checkbox on a background questionnaire is long gone, and good riddance. With the original “box,” a current state prison parolee and a 60’s freedom rider were both considered equally worthless. The question made no distinction as to whether the accused was adjudicated innocent or guilty. With institutional bias in law enforcement, disparate sentencing in the court systems, and a host of other societal evils, this wording was a particularly bad choice.
While the old “been arrested” or the modern "been convicted" part of the question comes down
hard on Black and Latino males in particular, the front half of the question
“have you ever,” comes down hard on older applicants who had cleaned up their
lives and left their youthful indiscretions behind. “Have you ever,” has now
gone away too, even when followed by the phrase “been convicted of a
crime.”
The question an HR professional in California would likely
ask today, is “have you been convicted of a crime in the last seven
years.” While the “Ban the Box” or BTB concept is simple, keeping on top
of its recordkeeping requirements is not. BTB started in Hawaii in the late
90’s, and has since spread to 24 states and 150 cities and counties, each with
variations on the theme. The way it typically works is:
THE OLD MANDATE
1.
The
employer's not allowed to ask up front about criminal convictions.
2.
With a
signed release from the applicant, a criminal background check is done once a
conditional offer of employment is received.
3.
If the
background reveals an adverse finding, the applicant receives a
"pre-adverse action notice," and gets an opportunity to challenge
inaccuracies.
4.
If the
applicant doesn't respond in a timely manner, an "adverse action
notice" is sent telling them they've out of the running.
THE ROCK VS. THE HARD PLACE
Labor
and employment laws have changed tremendously over the years. Many of
these changes have turned out to be for the better, but hiring decisions are
still ventures into shark-infested waters. The small business owner can
find him or herself stuck between a rock and a hard place. The rock that
can hit small business owners is a negligent hiring or negligent retention
action. In a negligent retention action, the sword that Plaintiff’s
Counsel is looking for is proof that:
1.
Your
employee behaved badly.
2.
You should
have known about it.
Understanding the rock is comparitively
straightforward. It sticks out of the shark infested waters. As long as you do
a pre-employment background check, you’ll likely see what you
"reasonably should have known." Understanding the hard place of
“fair employment practices,” is more like sailing shark infested waters where
there are submerged reefs. Those submerged reefs are a rocky field of
federal, state, county, and municipal requirements. In a fair employment
practices action, the sword Plaintiff’s Counsel is looking for is proof that:
1.
The
employer made an adverse employment decision.
2.
The decision was made without
giving the employee a fair chance.
The first question out of a business owner’s mouth is
likely to be “that sounds kind of vague, define fair chance.”
THE NEW MANDATE
Under LA’s 2017
rules, you can no longer say that a criminal background must be “passed to be
considered for a position,” and you can’t inquire about an applicant’s criminal
history prior to extending a conditional employment offer, but it’s a lot more
complicated than that. Here’s the short version for employers hiring in the
VICINITY of Los Angeles:
NAVIGATING - the short version
1.
Make a
determination whether the applicant falls within the expanded definition of
“Employee” as defined in FCIHO.
a.
Is their
workplace within the City of Los Angeles?
b.
If not,
during the last four weeks before the position was advertised, did the
individual performing the job perform two or more hours of work inside the City
of Los Angeles on an average week?
c.
Is the
applicant a “telecommuter” who works for an employer outside the city while
living inside the City of Los Angeles?
d.
If you
answered yes to any of the above, they’re subject to FCIHO.
2.
Collect
resumes, applications, etc., without touching on the issue of criminal history
at all.
3.
Conduct
interviews without touching on the issue of criminal history at all.
4.
Extend a
conditional offer of employment. Get the candidate’s written permission to
conduct a background investigation.
5.
Have a
criminal background investigation done, making sure the investigator redacts
any inadmissible findings.
6.
If a
history of criminal conduct is found, assess whether that history is deemed an
“unreasonable risk.”
7.
If the
answer is “yes,” prepare a written notice specifically articulating why that
conditional employee’s conviction constitutes an unreasonable risk to the
company. This notification should consider, at minimum, the nature and gravity
of the offense, the time that has passed since the offense and/or sentence, and
the nature of the job held or sought.
8.
Record the
date the conditional employee is notified, follow all document retention
requirements, and give the conditional employee at least five business days to
complete the Fair Chance Process.
9.
If the
conditional employee submits evidence or other information, do the whole
assessment process over again, considering what the conditional employee
provided.
They say the path to hell is paved with good intentions.
They also say that “in propria persona” means your lawyer has a fool for a
client. With FCIHO, Los Angeles has reached the point when employers need to
either write their own legal arguments explaining how their conditional
employee’s criminality precludes them from working, or hire a labor and
employment attorney to write custom responses every time a background gets a
“hit.”
CRIMINAL CONDUCT EXCLUSION
In some cases, “criminal conduct exclusion” is a fairly clear business necessity. A past crime shouldn’t be used to exclude a conditional employee unless it is in some way relevant to the job they are being asked to perform. Clearly pedophiles doing childcare and bank robbers driving armored cars are legitimate criminal conduct exclusions, but how does an employer handle a conviction related to domestic violence where both the alleged victim and the alleged perpetrator were criminally charged. There’s no way in the world a streetwise California business owner would make that call without involving a labor and employment lawyer.
The simple fact however, is that when business owners feel
legal pressure to give an up or down vote, things go sideways, and that’s where
the problem lies. Under the new L.A. system there are clear winners, and
clear losers.
WINNERS & LOSERS
The biggest winners are:
1.
Los
Angeles area Labor and Employment Attorneys
2.
LA City
Bureau of Contract Administration & Office of Finance Bureaucrats.
The biggest losers are:
1.
Low
skilled Black males without criminal records
2.
Low
skilled Latino males without criminal records.
Why? In the words of Yogi Berra “In theory,
things turn out the same in theory and in practice. In practice, they don’t.”
Call it subconscious avoidance, pernicious racism, or a reality check, but
given the litigious climate here in sunny Southern California, the simple fact
is that employers don’t want to hire people who’ve been convicted of crimes.
BTB was conceived as a way to combat racial prejudice, and while that’s a good
premise on the surface, when we look at actual employer behavior, it’s an ugly
game of connect the dots.
In the real world, employers know that some minority
populations, particularly young Black and Hispanic men, are disproportionally
represented in the criminal justice system. When Jennifer Doleac of the
University of Virginia and Benjamin Hansen of the University of Oregon did a
BTB study(1), they found that “removing information about job
applicants’ criminal histories could lead to employers who don’t want to hire
ex-offenders to try to guess who the ex-offenders are, and avoid interviewing
them. In particular, employers might avoid interviewing young, low-skilled,
black and Hispanic men when criminal records are not observable. This would
worsen employment outcomes for these already-disadvantaged groups. In this
paper, we use variation in the details and timing of state and local BTB
policies to test BTB's effects on employment for various demographic groups. We
find that BTB policies decrease the probability of being employed by 3.4
percentage points (5.1%) for young, low-skilled black men, and by 2.3
percentage points (2.9%) for young, low-skilled Hispanic men. These findings
support the hypothesis that when an applicant's criminal history is
unavailable, employers statistically discriminate against demographic groups
that are likely to have a criminal record.”
BOTTOM LINE
The City of Los Angeles, despite good intentions, has almost
certainly taken the single largest problem with BTB, and given it a dangerous injection of steroids with the implementation of FCIHO.
1. Doleac,
Jennifer L., Hansen, Benjamin. National Bureau of Economic Research Working
Paper No. 22469. NBER, July
2016. http://www.nber.org/papers/w22469
