by Joe Campos Ashbaugh Beal
At some point in our lives we’ve all filled out job applications that ask whether we’ve ever been convicted of a crime. To most of us it seems quite normal that an employer would want to know whether an applicant has a criminal conviction in their background. There is a growing movement however that believes employers should be prohibited from asking such questions in job applications. The “Ban the Box” movement as it is commonly called believes when job seekers admit on job applications that they have conviction records they are likely to be automatically disqualified by the employer and are therefore unfairly discriminated against. Consequently “Ban the Box” supporters argue large numbers of ex-cons are permanently unemployable despite having paid their debt to society. As the argument goes such permanent unemployment increases recidivism and creates public safety risks.
To date approximately 48 municipalities have passed laws prohibiting employers from using job applications that ask about criminal conviction history. Last fall Seattle Councilmember Bruce Harrell proposed his own version of a “Ban the Box” ordinance blandly named the “Job Assistance Legislation” (JAL). The original proposal has been revised and will soon be introduced in the Public Safety Civil Rights and Technology (PSCRT) Committee. All indications are that Seattle may soon be the next city to prohibit employers from using job applications that ask about criminal convictions.
As currently proposed JAL applies to employees who physically work “in whole or in substantial part (generally at least 50%)” within Seattle’s city limits. There are some exceptions for individuals whose job duties include law enforcement policing crime prevention security criminal justice or private investigation services. There is also an exception for individuals whose job duties would allow unsupervised access to children under the age of 16 developmentally disabled persons or vulnerable adults. Employers are subject to JAL if they have at least one employee.
If JAL becomes law application forms or processes that automatically exclude all individuals with arrest or conviction records will be prohibited. This is the “Ban the Box” portion of the proposed ordinance but JAL goes much further. As supporters are fond of saying “Ban the Box” does not mean a ban on background checks. As with many things it’s all about timing. Employers will be required to conduct an initial screening of all applicants to eliminate unqualified applicants. At that point employers can ask about arrest or criminal conviction history and conduct background checks. Regardless of the results of the background check JAL will prohibit an employer from deciding not to hire someone based solely on their criminal conviction record unless it has a “legitimate business reason” to do so. A “legitimate business reason” will exist only if the employer in good faith believes (1) the conviction or the criminal conduct leading to the conviction has a negative impact on the applicant fitness or ability to perform the job or (2) poses a potential risk of harm or injury to people property or business assets. Employer’s will need to consider a variety of factors such as the number and types of convictions how long ago the conviction occurred information relating to the applicant’s rehabilitation or good conduct and the type of job being sought.
JAL does not create a private right of action. In other words disgruntled applicants will not be able to file lawsuits against employers for alleged violations of the ordinance. The Seattle Office for Civil Rights (SOCR) will enforce the ordinance and can initiate investigations and enforcement procedures on its own or in response to a charge filed by a disgruntled applicant. For a first violation employers will likely see a Notice of Infraction and an offer of assistance from the SOCR to ensure future compliance. A second violation carries a penalty of $750 and each subsequent violation carries a penalty of $1000 in each case payable to the charging party. In addition to the monetary penalty employers found to have violated JAL can also be required to pay SOCR’s legal fees.
Another important feature of JAL is that its limitations on the use of criminal arrest and conviction information is not limited to job applicants but also to current employees. If an employer performs a background check on a current employee no adverse employment action can be taken against the employee if it is based solely on their arrest or conviction record.
In a somewhat unbalanced attempt to encourage employers to hire ex-cons Seattle is also considering a companion tax incentive ordinance. Subject to certain requirements the proposed ordinance allows employers to receive a $150 B&O tax credit if they hire someone previously convicted of a felony. The principal requirements are that the employee must have been hired within two years of their conviction or release from incarceration and must have worked at least 1044 hours for the employer during a one-year period.
If JAL is approved in its current form it would take effect on July 1 2013.
Joe Campos is the Chair of Ashbaugh Beal’s Corporate/Securities group and works with many AGC member companies on various issues including; entity formation corporate governance issues contract formation and acting as outside general counsel. He presented this issue at a recent AGC Seattle District membership breakfast.