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Without final rules in place, Austin closes two fair chance hiring complaints

Thursday, April 19, 2018 by Audrey McGlinchy, KUT

When Lewis Conway Jr. was released from prison in 2000 after serving time for manslaughter, the state required him to wear an electronic monitoring device. But nothing fit his ankles.

“So they put the electronic monitor on my wrist,” said Conway, who works on criminal justice issues for the nonprofit Grassroots Leadership. “It was about the size of a baby car on my wrist.”

That “baby car” didn’t go unnoticed.

“I would go into these job interviews and the people would stare at my wrist and they would ask me, ‘What that is?’ So, obviously, after I told them what that was, I didn’t have access to those jobs,” said Conway, who filed this year to run for City Council. (It’s unclear whether he can actually run for local office with a felony record, though.)

“I spent 12 years of my life being denied job after job after job after job for no other reason than the worst day of my life,” he said.

In March, the Austin Monitor and KUT ran a story about how the city of Austin had not yet begun enforcing its two-year-old fair chance hiring ordinance. The law prohibits employers from checking an applicant’s criminal history until a job offer is on the table. The problem, in part, was that the city had not yet written administrative rules for how it would investigate complaints and penalize noncompliant companies.

But without those rules, the city decided to dismiss two of the five complaints it had received by the end of February. (The city said it has received one additional complaint since KUT ran its first story.)

“Do we have to have the rules in place in order to create the transparency and process that ensures we’re doing due diligence?” asked Joya Hayes, director of the city’s Human Resources Department, which oversees the Equal Employment and Fair Housing Office. The answer, she said, is no.

But, she said, “I think if you look at the two cases that we closed out, the staff did do due diligence.”

Conway, who worked on the campaign to get the first fair chance hiring law passed in Texas, said these dismissals do raise questions about transparency.

“What protocol was used to determine the investigative process had been completed and what protocol was followed to determine that these companies were not, in fact, guilty?” he said.

Cut-and-Dry Cases

Austin’s fair chance hiring ordinance went into effect in April 2016. The city received complaints against a moving company and an insurance company that August. According to documents obtained by KUT, however, the city did not tell the companies about the complaints until Feb. 15, 2018 – more than a year and a half later.

The city dismissed these complaints on March 2. (Hayes acknowledged the city had closed two cases in a memo to Assistant City Manager Mark Washington on March 14, although this memo was not posted publicly.)

Hayes said her staff and the city attorney’s office decided in February that they would go back and tackle complaints filed shortly after the ordinance took effect. Since the law established a one-year grace period during which companies would not be subject to fines, staff decided to investigate and close the more cut-and-dry cases.

“In both of these cases, we had the opportunity to evaluate what the issues were without penalty, and it was easy for us to determine whether or not we had the opportunity and the evidence necessary to dismiss the cases,” Hayes said.

When asked if two weeks between informing an employer about a complaint and closing a case was enough time to complete an investigation, Hayes said yes, in these cases.

“The investigation period in which we provide is on a case-by-case basis. So certainly, there are going to be cases in which we have the ability to look at it and do due diligence to the process in a shorter period of time,” she said.

KUT initially asked for public information about the ordinance on Feb. 1. Hayes acknowledged that the inquiry, in part, sparked the city’s communication with the companies Feb. 15.

“I think you were certainly a contribution,” she said.

‘It Just Seems Flawed From the Start’

In the case against the moving company, a complainant alleged it had asked applicants whether they had a criminal background on the initial job application. Hayes said city staff looked at the company’s current online job application, which does not include a question about criminal background, and dismissed the case.

The complainant had asked to remain anonymous, so the city could not ask that person for evidence. A representative from the moving company emailed a copy of the Craigslist posting the city had found on its own – but not until March 6, four days after the complaint had been dismissed.

While the cover letter of the investigation acknowledged that the company had violated the ordinance, the company had come into compliance since the complaint had been filed.

Council Member Greg Casar said the delay in investigating these complaints is worrisome, regardless of whether the city has a finalized process in place.

“How can we expect that there’s going to be a good investigative process that’s going to have fresh witness information?” said Casar. (KUT reached out to all eight Council members who voted for the hiring ordinance, but only Casar was available to comment before deadline.)

“They filed the complaint in 2016. … We’re getting information from the employer in 2018. It just seems flawed from the start,” he said.

Casar also questioned part of the city’s outreach attempts. In March, Hayes defended the number of complaints the city had received compared to other cities by implying Austin employers were well-educated about the ordinance and therefore knew not to violate it.

But according to attendance logs obtained by KUT, only 11 people total attended 10 in-person public information sessions on the ordinance. (The city did not keep a log for two online information sessions it hosted.) Hayes said the city had other, more successful parts of its education campaign, including online ads.

“I think that the city does in-person, public meetings on so many issues totally wrong,” Casar said. “I think the fair chance hiring public info sessions are an important example of that.”

‘It Literally Saves Lives’

The rules governing how the city will investigate complaints and penalize companies in violation of its fair chance hiring law are now in draft form and open for public comment.

The rules propose setting timelines for investigations, including letting no more than 10 business days pass between assigning an investigator to a complaint and reaching out to a complainant. (In the case dismissed against the insurance company, a written conversation between the city and the complainant didn’t begin until May 2017, nearly 10 months after the complaint was filed.)

The rules also lay out fines. A company with fewer than 50 employees found violating the ordinance will be fined $50, with larger companies subject to a fine of $100 for a first-time violation. The public has until May 4 to comment on the new rules.

Conway said ensuring that someone with a felony record gets a fair shot amounts to a civil right. A five-year study by the Indiana Department of Correction concluded that education and employment were “the most important predictors of recidivism.”

“At the basic root of why this law is important is because it literally saves lives,” he said. “When people are not allowed to be employed, they’re going to do what they have to do to feed their kids. They’re going to do what’s necessary to put a roof over their heads. When people go in and out of prison, that process can be interrupted with employment.”

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by Gabriel Cristóver Pérez/KUT News.

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