Seattle City Councilmember Bruce Harrell

I am proposing legislation to increase public safety and job assistance by reducing criminal recidivism and enhancing positive reentries to society by prohibiting certain adverse employment actions against individuals who have been arrested, convicted, or charged with a crime. We have over 114,000 people in our City with arrest records. Over 409,000 people in King County with criminal convictions. This legislation is consistent with our Race and Social Justice work, in that, for example, while African Americans are 3.6% of Washington’s population, they account for nearly 19% of the state’s prison population. Native Americans are 1.5% of the state population, but are 4.3% of the state’s prison population. The issue becomes whether we should implement policies designed to assist all members of our society, particularly when we see disparate impacts that affects a person’s ability to obtain gainful employment. States such as Hawaii and New York have examined this issue and taken state action because of the policy reasons stated above.

Link to legislation and fiscal note:
Job Assistance Ordinance
Job Assistance Fiscal Note

Why:

• A primary cause for criminal recidivism is the huge challenge people with criminal backgrounds face when trying to gain employment after they have paid their debt to society and are trying to gain employment in a field not related to their past offense. Public safety is increased when unreasonable job barriers can be reduced.
• 114,000 people in Seattle with arrest records; 409,000 people in King County with criminal convictions.
• Disparate impact on certain communities. For example, while African Americans are 3.6% of Washington’s population, they account for nearly 19% of the state’s prison population. Native Americans are 1.5% of the state population, but are 4.3% of the state’s prison population. This legislation allows applicants to be afforded an opportunity to explain criminal history. Research supports the fact that when unemployment is lowered, rates of property crimes are lowered.
• Employers also have a legitimate responsibility and interest in protecting their business operations, reputation, employees and customers as well as the public at large. This ordinance seeks to balance these two interests.

Other municipalities that have addressed the issue:

• Five states have addressed the use of criminal history in employment decisions by private employers: Hawaii, Kansas, Massachusetts, Pennsylvania, and New York

What the ordinance does:

• Prohibits employers from using criminal convictions against applicants as the basis for disqualification where there is no direct relationship between the conviction and the job.
  What Would the Law Require?

• Employers may still do criminal background checks, may request criminal history information from an applicant and consider it in making their hiring decision. What this law requires is that the inquiry and consideration be made only after the employer has made the applicant a conditional offer of employment.
• An employer can not discharge, refuse to hire or carry out a tangible adverse employment action because of an applicant’s arrest, pending charge or prior conviction unless is a direct relationship between the arrest, pending charge or prior conviction and the job in question.
• A direct relationship exists where:
  -the nature of the criminal conduct has a direct bearing or connection to the individual’s fitness or ability to perform the job;
  -or where it is reasonably foreseeable that employing the applicant or employee will result in harm or injury to persons or property.

In determining direct relationship, employers should consider factors such as

• the seriousness of the criminal conviction or pending criminal charge;
• the number and types of convictions or pending criminal charges;
• how much time has elapsed since the conviction or pending criminal charge;
• information related to the individual’s rehabilitation or good conduct;
• the specific duties and responsibilities of the position sought or held;
• the employer’s legitimate interest in protecting people, property, and its business reputation.

Employers are not required to change their job requirements.

Who Would the Law Apply To?:

Exceptions

• Employers who provide services, house, or have access to or cares for minors, juveniles in detention, vulnerable adults or persons
• Law enforcement, policing, crime prevention, security or private investigator services
• Employers required or permitted by federal or state law to consider or rely on an employee or applicant’s criminal conviction record for employment purposes

There is one other specific exemption.
Employers may disqualify an individual with a conviction or pending charge for embezzlement, theft, fraud or any other financial crime from employment in a position involving access to money, financial information, or personal identifying information of customers, employees or members of the public.