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.

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.

Spending ARRA money in LA County

Supervisor Knabe's motion to direct American Recovery and Reinvestment Act (ARRA) money into LA County in the form of an expanded CalWORKs program ("Plan") was just passed by the LA County Board of Supervisors. I am not opposed to the idea of adding 10,000 new jobs in the County, even if they last only until June 2010. Many LA residents can use the job and the money.

The problem is that CalWORKs is run through local WorkSource and One Stop agencies (under the Workforce Investment Board of that local jurisdiction), and most, if not all, of them suffer from a performance-based requirement that a certain percentage of their clients be employed each year. I don't know where this requirement comes from, but it is institutionalized in every single WorkSource I talked to.

This pressure from the performance mandate creates an incentive for intake specialists to avoid taking on difficult cases, e.g. people with recent and/or extensive criminal history. And it leads also to the agencies turning a blind eye to employers that flagrantly violate existing laws against criminal history discrimination. This is why One-Stop in Alameda County is one of the organizations against whom National Employment Law Project (NELP), along with its allies (including A New Way of Life Reentry Project), asked Equal Employment Opportunities Commission (EEOC) to investigate and file a commissioner's charge.

At today's LA County Board of Supervisors' meeting, I asked the Board to continue Supervisor Knabe's motion so that we can revise the language of the form contract between the County and employers participating in the program to reflect the Title VII requirement for finding a job-nexus to use an applican't criminal record. The Board declined to continue the motion, but the County has asked us to participate from now on in bringing the Plan in line with Title VII. This will most likely include staff and employer training, revised contracts, and additional tracking. Also important is that, through the hectic, last-minute negotiation with Supervisor Ridley-Thomas' office (via Richard Fajardo, a fellow UCLAW alum), we finally established a working relationship with the supervisor that replaced our erstwhile staunch ally, Supervisor Yvonne Burke.