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‘Fair chance’ proponents deliver message

Tuesday, October 27, 2015 by Jo Clifton

About two weeks ago, City Council’s Economic Opportunity Committee took the first step toward mandating removal of the box on employment applications indicating whether the applicant has a criminal record. However, the rest of the package of proposals – all related to helping people with criminal records get jobs – was put on the back burner.

On Monday morning, about 15 people who say they cannot get jobs because they have served time in jail, even though they are otherwise qualified, showed up on the second floor of City Hall to try to get answers about when that committee might take up the fair chance hiring ordinance. They did not get many answers, but they did hold a news conference outside City Hall. On Oct. 12, the committee had directed staff to work on banning the box but had not taken action on the larger issue of fair chance hiring. “The problem is ‘ban the box’ is nothing without the fair chance hiring,” said Lauren Johnson, one of the group’s organizers.

Council Member Greg Casar, who sponsored the resolution, is a member of the committee. He is currently in Los Angeles attending a Local Progress National Convening meeting. Casar told the Austin Monitor on Monday that he had requested that the item be on the November committee agenda. He said staff from Council Member Ellen Troxclair’s office had indicated that fair chance would be on the agenda.

Casar pointed out that he had made a motion during last month’s meeting to direct staff to put the fair chance ordinance together “and I was outvoted, basically,” so there was a month-long delay. “But I hope this committee will be open, and we can deliberate on the details. … My hope and expectation is at the meeting, we direct staff to bring the draft (fair chance) ordinance to Council, as soon as they can.”

Even though proponents of the ordinance are pushing for a quick turnaround, Casar said, “I imagine it will take a few weeks,” noting that the process has already been several months in the making. “I don’t want to rush it,” he said. Casar added, “I hope this will help us with other issues with workers’ rights.”

Troxclair responded to a query about the ordinance via email, saying that although the committee approved moving forward with banning the box, “the committee had questions about some of the other aspects of fair chance hiring, which could include: not allowing questions about criminal background until an applicant is selected as the final candidate, determining which crimes would prohibit a person from employment based on the business and scope of the position, (and) potential criminal penalties for businesses not in compliance.”

She said there were also legal and cost questions, such as: “What are the legal ramifications for the city and/or businesses? How would these policies be applied to different businesses? How would compliance be enforced, and what is the administrative cost of enforcement?”

Troxclair also wanted to know: “How would this apply to small businesses that don’t have a formal written application? Who bears the legal liability in instances … where the business has access to secure buildings or financial information? How does this align with businesses like Uber and Lyft, which the Council has indicated they want to see (performing) more comprehensive background checks as early as possible.”

Finally, she said, “We also had very limited feedback from the business community, and wanted to give the HR staff the opportunity to collect input from a variety of those who would be affected. I look forward to continuing the discussion at our next meeting.”

Johnson pointed out that there were 20 to 30 people who spoke in favor of such an ordinance and just a handful who were opposed or did not understand what the ordinance would look like.

Johnson said, “A lot of the questions that arose were based on misinformation.” For example, one man asked about criminal penalties, and the Fair Chance Hiring group, whose members are well aware of the problems caused by criminal penalties, are not in favor of that.

Additionally, the city does not have the authority under state law to create a crime beyond the lowest misdemeanor, which is a Class C, carrying a maximum penalty of a $500 fine.

According to documents provided to the Council committee on Monday, “Removing the question about criminal history from employment applications and waiting until a conditional offer of employment to ask about criminal history or run a background check is a necessary element of a comprehensive Fair Chance Hiring policy.”

However, simply removing the box from the application does not prevent an employer from doing a background check before interviewing the applicant or right after. In addition to supporting a delay in checking on criminal history, advocates for fair chance policies say that employers should get education and technical assistance. They point out that certain job positions should be exempt from the ordinance. Examples include any position that includes interaction with vulnerable populations and positions exempted under federal or state law.

The advocates also want to require employers to give applicants a copy of their background check results and provide them with an opportunity to explain any mitigating factors. In addition, they would like enforcement policies that include progressive civil penalties, but they emphasize the importance of educating employers.

Fair chance advocates say that race is a big factor in determining who has a criminal history, and therefore the practice of checking criminal histories before an interview has a disproportionate impact on persons of color, especially African-Americans. “Even though African-American individuals make up only 12.5 percent of the population, they make up nearly 25 percent of those arrested,” according to the Equal Employment Opportunity Commission.

Photo of Reginald Smith and Jorge Renauf Renaud at City Hall rally, taken by Jo Clifton.

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