Know Your Rights Under the San Francisco Fair Chance Ordinance

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1 Know Your Rights Under the San Francisco Fair Chance Ordinance February 26, 2014 Michelle Natividad Rodriguez Staff Attorney

2 About 1 in 4 U.S. Adults Has an Arrest or Conviction Record Total of Million Adults in the United States 70 Million Adults with a Criminal Record (U.S. Bureau of Justice Statistics 2012 and Census estimates 2012) 2

3 People with Criminal Records are Shut Out from Jobs Over 60% of Los Angeles employers surveyed said that they would probably not or definitely not be willing to hire an individual with a criminal record. (Harry Holzer, et al., Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers. April 2005) Recently released parolees face unemployment levels between 70-80%. (Little Hoover Commission, Back to the Community: Safe and Sound Parole Policies. Nov. 2003) 3

4 Collateral Costs of Incarceration on Individuals & Communities Negative Economic Impacts 11% reduction in hourly wages Reduces annual employment by 9 weeks 40% reduction in annual earnings (PEW, Collateral Costs: Incarceration s Effect on Economic Mobility (2010)) Reduces income earned up to age 48 by $179,000 4

5 Employment Significantly Reduces Recidivism (Results of Chicago s Safer Foundation Job Placement for 1,600 People Recently Released from Prison) 5

6 Federal Civil Rights Law & Guidance U.S. Equal Employment Opportunity Commission The Guidance affirms that private or public employers that have automatic exclusions of people with criminal records from all employment opportunities violate federal civil rights laws. Employers may deny employment based on a criminal history if it is job related and consistent with business necessity, and should consider: (1) The nature and gravity of the offense or conduct; (2) The time that has passed; and (3) The nature of the job held or sought. The key is an individualized assessment with appeal & waiver processes EEOC Guidance on Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, released April 25,

7 Ban the Box Restoring Hope and Opportunity to Workers with Criminal Records Benefits to worker: remove chilling effect, decrease stigma, demonstrate qualifications Benefits to employers: maximize applicant pool and can reduce resource expenditure 7

8 Ban the Box Around the Country States with Ban the Box California Colorado Connecticut Hawaii* Illinois Maryland Massachusetts* Minnesota* New Mexico Rhode Island* * Applies to public & private employers 8

9 San Francisco Fair Chance Ordinance 9

10 To whom does the Fair Chance Ordinance apply? 1. Employers in San Francisco that employ 20 or more have obligations under the ordinance. Includes city contractors. The city is not included as an employer. 2. Affordable housing providers in San Francisco have obligations under the ordinance. 3. Job applicants and employees have rights under the ordinance. 4. Applicants for affordable housing have rights under the ordinance. 10

11 When will the Fair Chance Ordinance be in effect? The ordinance will be in effect 180 days after the Mayor signs it. Likely that will mean it s the law in early September of However, violators for the first year will be given warnings and employers and housing providers will not be financially penalized. 11

12 Who are the agencies in charge? For employment, Office of Labor Standards Enforcement. For housing, Human Rights Commission. Their phone numbers and addresses will be provided on notices about the ordinance. 12

13 STEP 1: Applying for Jobs or Housing 13

14 Employers and Housing Providers Must 1. Take conviction question off application. 2. Not have blanket ban ads like No Felons Apply. 3. In ads, state that they will consider qualified applicants with criminal histories. 4. Have notice posted about the Ordinance. 14

15 Employers and Housing Providers Must Not Ask About 1. Arrests not leading to convictions. 2. Diversion or deferral programs. 3. Dismissed convictions. 4. Juvenile convictions. 5. Convictions older than 7 years. 6. Infractions. 15

16 Before an Employer or Housing Provider Asks about Convictions or Runs a Background Check 1. Provide notice about the Fair Chance Ordinance. 2. Provide notice about state and federal laws about background checks. 16

17 STEP 2: After a Live Interview (Job) or After You re Found Qualified (Housing) 17

18 After a live interview (jobs) or you re found qualified (housing), they Can Ask About 1.Open arrests. 2.Convictions 1-7 yrs old. 18

19 STEP 3: Employer or Housing Provider Considers Your Record 19

20 An Employer or Housing Provider Considering Conviction History Must 1. Conduct individualized assessment. 2. Consider only directly-related convictions. 3. Time passed since conviction. 4. Any evidence of rehabilitation or mitigating information you share. 20

21 What is evidence of rehabilitation or providing mitigating factors? 1. Completion of parole or probation. 2. Recommendations from employers or others. 3. Education or training. 4. Completion of rehabilitation programs. 5. Provide context for conviction. 21

22 STEP 4: An Initial Decision to Deny You Because of Your Record 22

23 Before a final negative decision, employer or housing provider must 1. Provide you a copy of your background report. 2. Notify you of the issue in your conviction history. 3. Give you 7 days (job) or 14 days (housing) to provide information about rehabilitation or errors. 23

24 STEP 5: Final Decision 24

25 If a Final Negative Decision then 1. The employer or housing provider must give you a final notice. 2. Consider if you should appeal to the Office of Labor Standards Enforcement (job) or Human Rights Commission (housing). 25

26 STEP 6: Report a suspected violation 26

27 What are clear violations? 1. Asked about your record on a job application. 2. Blanket ban. We don t accept felons. Didn t consider you on a case-bycase basis. 3. No notice of your rights. 4. Your conviction was older than 7 years but you re denied because of it. 27

28 If you decide to report a violation Report to Office Labor Standards Enforcement (jobs) or Human Rights Commission (housing) within 60 days. 28

29 Why would you report a violation? 1. Help enforce the law. Help others in your community. 2. OLSE or HRC can find out more information than you can. 3. You could get relief. 4. Employer or housing provider practices could be penalized. 29

30 Violation is found. What then? 1. OLSE can provide appropriate relief e.g., you could get the job. 2. HRC could get you the housing denied or get you housing like it. 3. Penalties: First violation is a warning. $50 per violation to city. $100 after. 4. OLSE can refer to City Attorney for a lawsuit. 30

31 Resources National Employment Law Project ployment/ Contact: Michelle Natividad Rodriguez, Promotes policies to support low-income workers and provides technical assistance to advocates and policymakers at the federal, state, and local level to reduce barriers to employment for people with records. Second Chance Legal Clinic of the Lawyers Committee for Civil Rights Intake hotline: The Clinic assists those who are working to overcome barriers to employment and housing due to past arrest and conviction records. Including assistance with criminal record remedies ("expungement"), occupational licensing, criminal background reports, public and private housing applications and denials, employment, and driver's license suspensions. Legal Services for Prisoners with Children and All of Us or None Contact: Jesse Stout, LSPC organizes communities impacted by the criminal justice system and advocates to release incarcerated people, to restore human and civil rights and to reunify families and communities. All of Us or None is a grassroots civil rights organization fighting for the rights of formerly- and currently- incarcerated people and our families. 31

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