U.S. Census

Over the last year or so, I've been seeing a steady flow of clients who are denied employment from the U.S. Census Bureau due to their criminal record. There's precious little I can help them with. (Judging by the widespread complaint among attorneys on various reentry listservs, I'm not alone in feeling frustrated by the Bureau's wall of silence.) Nowhere in their communication to the applicants does it show what criteria they're using to disqualify people, whether there's an appeal process to show rehabilitation or lack of nexus between the job and the conviction, or even what the disqualifying offense/arrest is! And all of this, based solely on the FBI background check, known to have over 50% error rate (e.g. mismatched names, records with no disposition, etc.)

Today's NY Times ran an editorial about this very issue (aptly-titled "We can't tell you why") reporting on a class action filed against the Bureau by the lead counsel, Outten & Golden, along with a group of community orgs, which alleges that the Bureau's actions violate Title VII of the 1964 Civil Rights Act. The NY Times editorial explains the concept of Title VII well enough.

The class action complaint alleges that, according to the Bureau's director, Robert Groves, its "concealed policy" is in fact to disqualify people with a prior conviction or pending charge for:

(1) Certain categories of crime, such as murder, sex offenses, robbery, voter fraud, or other crimes that suggest a threat to safety or the integrity of census data, or

(2) Crimes of dishonesty, burglary, theft, or vandalism

Except when the person conclusively demonstrates that he or she does not present a current threat.

Now, I first learned about this "policy" about a month ago from a listserv posting of an attorney who had corresponded successfully (unlike me and many other attorneys who ran into a bureaucratic goose-chase and gave up) with the Bureau. And I just laughed with disbelief. Like I said before, the Bureau does not make this information available to anyone or even hints at its existence in the dismissive termination letters sent to affected applicants. I have a lot of problem with this so-called "policy" itself, but actually following it would be an huge improvement over the present situation.

Anyway, upon learning of this "hidden" policy, I've been advising my clients to act as if it is in fact followed. I'm arguing nexus and negation in all my letters to the Bureau on behalf of my clients. And I'm asking for a hearing or some way to make the case that my clients do not pose any threat to "safety or the integrity of census data." So far, no luck. This is tilling at the windmills par excellence. FYI, this is what President Obama said about reentry and employment while campaigning for presidency.

America is facing an incarceration and post-incarceration crisis in urban communities. Today, nearly 2 million children have a parent in a correctional facility. In the U.S. Senate, Obama has worked to provide job training, substance abuse and mental health counseling, and employment opportunities to ex-offenders. In addition to signing these important programs into law, Barack Obama and Joe Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership to create ties with employers and third-party agencies that provide training and support services to ex-offenders, and to improve ex-offender employment and job retention rates. Obama and Biden will also work to reform correctional systems to break down barriers for ex-offenders to find employment.

I don't know how he's gonna do all that, if his administration denies even temporary employment to people with decades-old arrests.

Update II: Expansion of the LA County's background check

On Tuesday, by unanimous vote, the Los Angeles County Board of Supervisors passed a resolution authorizing the County to perform an FBI background check for employment purposes, potentially for everyone working for and through the County. (See my previous posts about the resolution here and here.) A couple of year ago, I did an extensive survey and found that Las Vegas, Indianapolis, and Jacksonville are the only cities among the U.S. cities with population over 500,000 that do this.

So what did the County decide to do? Immediately, they will start doing an FBI check for everyone in the top 3 level positions, including directors, deputy directors, and their assistants. And they will also start looking into how to expand this check for everyone, including current employees. According to what I heard from Supervisor Ridley-Thomas' office, the only hold-up there seems to be the union's consent. Judging by the union's lukewarm support for the King Drew employees that were disciplined post facto for their criminal past, I am not hopeful that the union will stick up for its members that have a criminal history this time around either.

Stay tuned. We lost a battle, but the war goes on. And the next battleground will be the actual implementation of this background check. My goal is to get the County to conduct a comprehensive overview of its hiring policy regarding people with criminal records to find whether the policy is reasonably implemented (it isn't, in case you're wondering) and whether it unduly deters people with criminal records from applying for a position at the County (it does).

Update: Expansion of the LA County's background check

I previously discussed the proposal to expand the LA County's background checks to include a search of the FBI national database. Today, at the request of Supervisor Ridley-Thomas, the item was continued until August 4th. A little more information about the motive behind the proposal came out today during our side-bar discussion with the Supervisor Ridley-Thomas' office. And (surprise!) it was in response to the fiasco that was the negligent medical care provided at the MLK Hospital, as reported extensively by the LA Times.

In short, the proposed expansion of checking into the criminal history of current county employees and 3rd-party contractors working for the County is a response to the issue of preventing negligent medical care at a county hospital. How?

It only makes sense if we assume that the negligent medical care was delivered by people with criminal records. But you know it's just not true if you followed the story since 2004. What happened, however, is that the LA Times did another expose last year accusing the County of endangering public safety by hiring people with criminal history. Ever since, the blame for the negligence of the hospital has been retroactively shifted to County employees with criminal history. It's an old story, isn't it? If there's a problem that's too complicated for us to fix, find a scapegoat.

By the way, in 2007, the City of Los Angeles did a preliminary study to find out how much it'd cost to do an FBI background check for all new hires. $353,268.24. (I can't find this online any more, but the cite is: Report from the Personnel Department, Council File 06-1187, dated 3/28/2007, page 2.) This cost includes both the cost of the checks themselves and the cost of hiring additional staffing necessary to interpret the reports and to ensure their accuracy.

What if the County doesn't spend this money to check the accuracy of the records they receive? Then, given the US Attorney-General's own admission that 50% of records in the FBI dabatase are either incomplete or out-of-date, we are looking at a substantial number of people being denied employment due to an error. Even if we spend the money and hire people to vet these reports, we're looking at the possibility of adding weeks, if not months, of additional processing time to the hiring of minority candidates, as recently discussed in a NYTimes editorial.

So what's the likely bottomline impact of this proposal that will end up costing hundreds of thousands of dollars? Well, the County will fail to address the underlying problem of negligent medical care at its hospitals. And it will further disproportionately disadvantages minority candidates applying for jobs and promotions either directly or through 3rd-party contractors.

Oh, and don't even get me started on the little addition they snuck in there over the weekend about denying employment to people convicted of crimes of "moral turpitude." WTH?

Expansion of the LA County's background check

At the end of the last month, the LA County CEO William Fujioka asked the Board of Supervisors to exercise the authority required to expand the County's check of its employees' criminal history and include the FBI national database. The request was placed on the agenda (Item 11) for this morning but was continued until next week.

Although the applicable law, California Penal Code § 11105(b), states that the provided FBI records must be vetted by the California DOJ to comply with the requirements of California Labor Code 432.7, several problems remain.

1. The FBI records are incomplete and inaccurate, as admitted by the US Attorney General's Office in its 2006 report to the Congress. See page 3.
2. The California DOJ has had a track record of releasing inaccurate reports, including those from the FBI, which is understandable, given the volume of requests they receive each day.
3. In the last 2 years or so, the California DOJ has been trying to comply with the requirements of the California Labor Code, but this too often results in a significant delay in the release of a report to the requesting agency, which in turn results in a negative consequence for the individual whose background is checked. For example, after waiting for a month or two, the agency would simply go ahead and hire the next person.

Obviously, my hope is that the County delay giving a go-ahead to this request by the CEO until and unless these problems are adequately addressed--either by the DOJ or the County. Meanwhile, though, one wonders why prompted the request in the first place?

It's hard to tell from the CEO's letter to the Board, but I infer that it's because the County is concerned about hiring people with criminal records through the South Bay WIB's ARRA implementation, because (initially, at least) the expanded background search will include only volunteers and non-union employees. If so, it wouldn't be surprising. The County is made of people, most of whom share an irrational fear and bias against people with criminal records. And why would it be surprising when their collective bias shows through at a time of change like this?