Speaking of politicians with a conviction history...

I know nothing about Jackson City, Tennessee or the laws of that state regarding political rights of people with conviction history.  According to an article in The Jackson Sun, however, "a state law [requires] felons to petition a circuit court for their citizenship rights to be restored before they can hold elected office."  A former Jackson City Councilman Johnny Dodd, who also worked as a substitute teacher with the Jackson-Madison County school system until very recently, is in trouble for giving what seems to be a false answer on his applications for the substitute teacher job, as well as for not having his citizenship rights restored before running for his City Councilman position.

In response to these revelations, the school district terminated Mr. Dodd's employment and changed their policy to "prohibit[] people with felony records from working in the district."

There are 2 separate issues here.  One is that of his "dishonest" answer.  Again, I know nothing about Tennessee laws, but I note that, if it were in California, Mr. Dodd would've been entitled to answer "no" to those questions regarding his convictions if he had set aside and dismissed under Cal. Pen. Code § 1203.4 or 1203.4a.  The other is the matter of his convictions themselves.  The articles linked to above refer to a 1987 felony conviction for grand larceny and a 1999 misdemeanor conviction for disorderly conduct.

The 1987 grand larceny conviction, according to one of the articles, stems from an accusation that he stole various items from the store he was working at, including "a basketball goal, a television, a VCR, and two radar detectors."  The 1999 disorderly conduct conviction involves an incident where he "told a crowd of 100 to 150 people to ignore police orders to disperse" at a night club where he was the disc jockey.

After this lengthy description of the facts as reported in the articles, I have a couple of thought.  The first is that the school district's policy change likely runs afoul of Title VII of the Civil Rights Act of 1964, which, according to EEOC, makes "an absolute bar to employment based on the mere fact that an individual has a conviction record... unlawful."  This particular jurisprudence on Title VII disparate impact theory mandates that an employer show "business necessity" for using a conviction record before making an adverse employment decision based on it.

The second point is more of a general observation--something I've noted before but bears repeating here--that a long history of rehabilitation seems to count for naught.  Granted, we have what appears to be an act of dishonesty on Mr. Dodd's part, if in fact it turns out that he really lied on his applications.  Even so, it is understandable why he would feel it necessary to deny his past convictions.  As Mr. Dodd himself put, "What do I have to do to put this behind me?"  The answer that the Jackson-Madison School District gave him is: there's nothing you can do.

I'll end this post with a statement from a former superintendent of the school district, Roy Weaver: "Weaver said Dodd's community activism, his work with the Boys and Girls Club, serving as a city councilman and his support of education made him a good role model for students. Dodd had served on the council since 1999."

SHRM survey & presentation on "Background Checking: Conducting Criminal Background Checks"

I was alerted by a listserv email to a recent study of background check practices among employers, conducted by Society for Human Resource Management (SHRM).  An informative read.  This being a self-reported survey, I'm skeptical how accurately it reflects the reality of employer policy vis-a-vis criminal background check; however, this is the first time I've ever seen any survey of this type, so I'm very much interested in its findings.  Among them are:

1. 73% of all responding ERs conduct background check for everyone, while only 19% do so for selected job candidates;
2. The perceived severity of a crime is highly relevant to whether it will materially impact an applicant's employment prospect (81% finding that it's "very influential" in their decision NOT to extend a job offer);
3. Employee safety (61%) and concern for negligent hiring (55%) are the 2 most important reasons for conducting a background check; and
4. The vast majority of ERs (63%) claim to allow job candidates to explain the results of criminal background check prior to making an adverse decision.

Right away, I notice that, perhaps because of the framing of the survey question, ERs consider the severity of the crime more relevant (81%) than the crime's relevance to the position applied for (73%).  Well, a simple narcotics possession under California Health & Safety § 11360 is a non-reducible straight felony, whereas battery under California Penal Code § 242-243 is most often a misdemeanor.  Well, you tell me who's less likely to be violent just based on the type and "severity" of crime.  To be fair, the existing EEOC guideline on Title VII does mention both the nature and gravity of an offense as a factor to consider.  Still, there's no reason why the increasingly arbitrary felony/misdemeanor distinction in criminal law should dictate employment policies of a private organization.

IHSS background check

A client of mine came out of prison about a year ago and is well on her way to sobriety and rehabilitation. She currently part-time works as an assistant at a sober living house and has supplemental income from another part-time gig as a caretaker for a couple of old people as a provider of in-home supportive services (IHSS). She's not making a whole lot of money, but she can make do without any government assistance because of these part-time jobs.

She contacted me last week to ask about a letter she received from the California Department of Social Services. It's called IHSS Program Provider Enrollment Form. It asks her, among other things, about her criminal history, stating that any conviction for elder abuse, fraud against a public benefit program, and/or child abuse will disqualify her from continuing her work as an IHSS provider. This is a problematic policy, mandated by California Welfare & Institute Code § 12305.81, because it disregards the potential negation of the seeming nexus created by the above-listed crimes. More problematic is that the Form goes one step beyond what the law mandates and states, in addition, that:

If you have EVER been convicted of a felony crime OR certain serious misdemeanor crimes, you are NOT eligible to be enrolled as a provider or to receive payment from the IHSS program for providing supportive services.

I have no idea where this "no-felony" rule comes from, and I'm trying to track it down. But I have this suspicion that it's made up by the Department of Social Services. And, now that it's in their official Form, I fear that this is and will continue to be their policy. Once again, the supposed "need" for criminal background check outweighs a rational and reasonable consideration of nexus and negation.

UPDATE (10/28/2009): I can't yet disclose where, but a reliable source informed me that the State's argument appears to be that W&I 12305.81 must be construed as simply adding additional grounds for disqualification to W&I 14123, which grants the Department of Social Services (through its director) the authority to suspend payment to people convicted of felony and/or misdemeanor related to duties, functions, and qualifications of the applicable Medi-Cal program.

One of the most obvious problems with this argument is that IHSS is not Medi-Cal. In addition, the source also referred me to W&I 12301.6(e)(5)(B)(ii), which allows a recipient of either IHSS or Medi-Cal benefits to hire a person with criminal history, as long as the history doesn't include any disqualifying offense under (yes, we're now back to) W&I 12305.81.

I am sitting this one out, because I learned that it's already in the hands of a very capable attorney. Good to have good peeps.

Sensible obervation

The Delphi Community School Board in Carroll County, Indiana apparently met in August to discuss checking school volunteers' criminal history. Predictably, we see the prevailing fear of child molestation coloring the whole debate. ("We're afraid that our children might get molested by sexual deviants. That's why we can't let drunk drivers work with them!")

Out of this fear-mongering, however, comes a voice of reason. Upon hearing that "no child should have unlimited contact with that person, which would include sitting next to them at a lunch table," a school board member by the name of Melinda Rossetter responded: "[A] convicted child molester sitting next to a child at a lunch table [is] no different than one standing behind a child in line at Walmart."

Reading it totally made my day. Let's try and curb our collective fear, shall we?

Fear over reason, every time...?

Let's say that an employer kept in check her bias against people with criminal history and purposefully considered the 3-N's to make a reasonable decision whether to hire an applicant with an extensive criminal history. After careful consideration, the employer finds that, although a particular need justifies background check (say, because the position would require interaction with young children), the applicant's criminal history lacks the nexus to warrant denial of his employment.

For 15 years, the employee with a criminal history does a good job, obeys all laws, and is fully "rehabilitated" by any definition of that word. Not even a traffic ticket, as they say. One could even say that the employer's careful consideration 15 years ago has been proven right by the passage of time.

But what if someone else finds that the employee has a criminal history? The fifteen years of no recidivism is thrown out the window, and there is a public outcry of "We were so lucky that the criminal didn't hurt our children!"

It happened earlier this year in Los Angeles, when the LA Times' fear-mongering articles resulted in the massive firing of people with criminal records from the county hospital for no other reason than that they had decades-old convictions.

Today, St. Petersburg Times reports that a 60-year old man may lose his position on the board of a girls softball team because of the revelation that he had been convicted of crimes more than 15 years ago.

Les Miserables anyone?

The 3 N's of the reentry law

In an ideal world, we would not consider a person's criminal record for employment purpose unless (1) a particular need exists, such as vulnerable population and/or sensitive information; (2) the criminal record indicates unfitness for the position; and (3) the finding of unfitness is not negated by evidence of rehabilitation. I call these 3 N's: need, nexus, and negation, respectively.

My argument is simple. If no particular need exists to consider a person's criminal record, why should we even ask that the person disclose his record? And, even if such a need exists because of the particular nature of the job, why do we want to know about the person's criminal history if it has nothing to do with the job? Finally, if the person can show that he is fully rehabilitated, why should we allow his past convictions to get in the way of his new life?

Over the past week in New York, Governor Paterson's reform of the Rockerfeller-era drug laws stirred up a fair amount of controversy for its impact on the nexus part of the equation. In short, the reform allows a judge to seal certain drug-related convictions and prevent an employer from even learning about them--no nexus, no check.

A recent op-ed piece in Daily News strongly criticized this aspect of Governor Paterson's reform, rhetorically asking:

How would you like a four-time convicted drug dealer to care for your grandmother in a nursing home?

Or an extortionist to handle your savings at the bank?

Or a burglar to teach your kids in school?

Or a car thief to watch your baby in day care?

You will notice that these scenarios all invoke the need factor--vulnerable populations such as the elderly and children, and sensitive information such as financial records. But you will also notice that these examples all lack the nexus factor.

What does drug dealing have to do with caring for the elderly in a nursing home? What does extortion have to with working at a bank? What does burglary have to do with teaching kids? And what does theft of automobile have to do with child care?

Nothing.

Unless you think that people with criminal records, no matter what their records, are likely to prey on the vulnerable population, whenever an opportunity for exploitation presents itself. But this is irrational fear, isn't it?