CITY OF SEATTLE

ORDINANCE __________________

COUNCIL BILL __________________

AN ORDINANCE seeking to increase public safety and job assistance through reducing criminal recidivism and enhancing positive reentries to society by prohibiting certain adverse employment actions against individuals who have been arrested, convicted, or charged with a crime; and adding Chapter 14.17 to the Seattle Municipal Code.

WHEREAS, the incarceration rate of the United States has tripled since 1980 and is nearly eight times its historic average; and

WHEREAS in 2011 there were 1,537,415 individuals serving sentences of more than one year in federal and state prisons; and

WHEREAS in addition to the increased incarceration rate, the PEW Center (PEW Center) on the States reports an increased number of individuals on probation and parole resulting in 1 in 31 or 3.2% of the nation's population under criminal justice supervision in 2007; and

WHEREAS, from 1982 to 2007 in Washington State there has been a 101% increase in the incarceration rate of adults in jail and prison rising from .32% of adults or one in every 312 adults to .64% or one in every 155 adults; and

WHEREAS in 2011 in Washington State there were over 17,000 individuals in the state's 12 prison facilities and approximately 16,000 offenders under supervision in the community by the Department of Corrections; and

WHEREAS, in 2011 over 680,000 people were released from state and federal prisons including 7,600 people released from Washington State prisons; and

WHEREAS, an estimated one in every three to four adults in the United States has a criminal record on file in state criminal history databases; and

WHEREAS, it is in the interest of the entire community that persons reentering society after incarceration become productive members of society, and the ability of these persons to obtain employment is a major factor contributing to their successful reentry; and

WHEREAS, persons reentering society after incarceration often find that their criminal records prevent them from obtaining or even applying for employment; and

WHEREAS, the hiring standards that some employers use bar the employment of ex-offenders who present no risk in the specific employment setting; and

WHEREAS, persons who have paid their debts to society deserve a fair chance at employment; and

WHEREAS, the continued unemployment of ex-offenders interferes with their rehabilitation and contributes to criminal recidivism, and thus jeopardizes the safety of the entire community and increases the cost of the criminal justice system; and

WHEREAS, while African Americans are 3.8% of Washington's population they account for nearly 19% of the state's prison population and Native Americans who are 1.8% of the state population are 4.3% of the state's prison population; and

WHEREAS, these examples of large racial disparities in incarceration rates mean that blanket exclusions from employment based on any criminal history may have a disparate impact on racial minorities and damage minority racial communities; and

WHEREAS, the City Council believes that reducing adverse employment actions against persons with criminal records will help these persons reenter society and become productive citizens, make the community safer from recidivism and victimization, reduce racial disparities in criminal justice and community well-being, and reduce the cost of criminal justice and save tax dollars; and

WHEREAS, the state of Massachusetts and other states, the cities of Jacksonville, Florida and Chicago, Illinois and dozens of other municipalities have provided various job application protections for people with arrest or conviction records; and

WHEREAS, this ordinance does not and is not intended to conflict with State or federal law, and is a valid exercise of the City's police power pursuant to Article XI, section 11 of the Washington State Constitution.

NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. A new Chapter 14.17 of the Seattle Municipal Code is added as follows:

14.17 The Use of Criminal History in Employment Decisions

14.17.010 Definitions

For the purposes of this chapter

"Agency" shall mean the Seattle Office for Civil Rights.

"Arrest record" shall mean information indicating that a person has been apprehended, detained, taken into custody, held for investigation, or restrained by a law enforcement agency or military authority due to an accusation or suspicion that the person committed a crime.

"City" shall mean the City of Seattle.

"Charging party" means a person who files an Agency charge claiming he was aggrieved by an alleged violation of this chapter.

"Commission" means the Seattle Human Rights Commission.

"Conviction Record" and "Criminal History Record Information" is meant to be consistent with RCW 10.97 and means information regarding a final criminal adjudication or other criminal disposition adverse to the subject, including a verdict of guilty, a finding of guilty, or a plea of guilty or nolo contendere. A criminal conviction record does not include any prior conviction that has been the subject of an expungement, vacation of conviction, sealing of the court file, pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or a prior conviction that has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. It does include convictions for offenses for which the defendant received a deferred or suspended sentence, unless the adverse disposition has been vacated or expunged.

"Criminal background check" shall mean requesting or attempting to obtain, directly or through an agent, an individual's Conviction Record or Criminal History Record Information from the Washington State Patrol or any other source that compiles and maintains such records or information.

"Director" means the Director of the Office for Civil Rights.

"Employee" shall mean any individual who performs any services for an employer, when the physical location of such services is in whole or in substantial part (at least 50% of the time) within the City. For purposes of this chapter, "employee" does not include an individual whose job duties or prospective job duties include law enforcement, policing, crime prevention, security, criminal justice, or private investigation services. In addition, "employee" does not include an individual who will or may have unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment.

"Employer" shall mean any person who has one or more employees, or the employer's designee or any person acting in the interest of such employer. For purposes of this chapter, "employer" includes job placement, referral, and employment agencies. "Employer" does not include any of the following:

1. The United States government;

2. The State of Washington, including any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary;

3. Any county or local government other than the City.

"Job applicant" shall mean any individual who applies or is otherwise a candidate to become an employee, as defined in this Chapter.

A "legitimate business reason" shall exist where, based on information known to the employer at the time the employment decision is made, the employer believes in good faith that the nature of the criminal conduct underlying the conviction or the pending criminal charge either:

1. Will have a negative impact on the employee's or applicant's fitness or ability to perform the position sought or held, or

2. Will harm or cause injury to people, property, business reputation, or business assets,

and the employer has considered the following factors:

a. the seriousness of the underlying criminal conviction or pending criminal charge, and;

b. the number and types of convictions or pending criminal charges, and;

c. the time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration, and;

d. any verifiable information related to the individual's rehabilitation or good conduct, provided by the individual, and;

e. the specific duties and responsibilities of the position sought or held, and;

f. the place and manner in which the position will be performed.

"Pending criminal charge" means an existing accusation that an individual has committed a crime, lodged by a law enforcement agency or military authority through an indictment, information, complaint, or other formal charge, where the accusation has not yet resulted in a final judgment, acquittal, conviction, plea, dismissal, or withdrawal.

"Respondent" means any employer who is alleged or found to have committed a violation of this chapter.

"Tangible adverse employment action" means a decision by an employer to reject an otherwise qualified job applicant, or to discharge, suspend, discipline, demote, or deny a promotion to an employee.

14.17.020 Prohibited Use of Arrest and Conviction Records

A. No employer shall advertise, publicize, or implement any policy or practice that automatically or categorically excludes all individuals with any arrest or conviction record from any employment position that will be performed in whole or in substantial part (at least 50% of the time) within the City.

B. An employer may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after the employer has completed an initial screening of applications or resumes to eliminate unqualified applicants.

C. An arrest is not proof that a person has engaged in unlawful conduct. Employers shall not carry out a tangible adverse employment action solely based on an employee's or applicant's arrest record.

D. Employers may inquire about the conduct related to an arrest record. Employers shall not carry out a tangible adverse employment action solely based on the conduct relating to an arrest unless the employer has a legitimate business reason for taking such action.

E. Employers shall not carry out a tangible adverse employment action solely based on an employee's or applicant's criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such action.

F. Before taking any tangible adverse employment action solely based on an applicant's or employee's criminal conviction record, the conduct relating to an arrest record, or pending criminal charge, the employer shall identify to the applicant or employee the record(s) or information on which they are relying and give the applicant or employee a reasonable opportunity to explain or correct that information.

G. Employers shall hold open a position for a minimum of two business days after notifying an applicant or employee that they will be making an adverse employment decision solely based on their criminal conviction record, the conduct relating to an arrest record, or pending charge in order to provide an applicant or employee a reasonable opportunity to respond, correct or explain that information. After two business days, employers may, but are not required, to hold open a position until a pending charge is resolved or adjudicated or questions about an applicant's criminal conviction history or conduct relating to an arrest are resolved.

14.17.030 Effect on Collective Bargaining Rights And Other Laws

A. This chapter shall not be construed to interfere with, impede, or in any way diminish any provision in a collective bargaining agreement or the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages or standards or conditions of employment.

B. This chapter shall not be interpreted or applied to diminish or conflict with any requirements of state or federal law, including Title VII of the Civil Rights Act of 1964, the federal Fair Credit Reporting Act, 15 U.S.C. 1681, as amended, the Washington State Fair Credit Reporting Act, RCW 19.182, as amended, the Washington State Criminal Records Privacy Act, RCW 10.97, as amended, and state laws regarding criminal background checks, including those related to individuals with access to children or vulnerable persons, RCW 43.43.830, et seq., as amended. In the event of any conflict, state and federal requirements shall supersede the requirements of this chapter.

C. This chapter shall not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a conviction record or who is facing pending criminal charges.

D. Nothing in this chapter shall be construed to discourage or prohibit an employer from adopting employment policies that are more generous to employees and job applicants than the requirements of this chapter.

E. This chapter shall not be construed to create a private civil right of action to seek damages or remedies of any kind.

14.17.040 Regulations

A. The Agency shall be authorized to coordinate implementation and enforcement of this chapter and shall promulgate appropriate guidelines or regulations for such purposes. The Agency shall convene a panel of stakeholders with a balance of perspectives, including members of the employer, social service, legal community and the Seattle Human Rights Commission to help develop the appropriate guidelines and regulations to implement this ordinance, and to oversee and provide input and feedback to the Director on the implementation of this ordinance for at least the first six months after the ordinance's effective date. Upon the written request of an employer, the Director has the authority to extend the implementation date for that employer, for a reasonable amount of time, to provide the employer time to make the necessary changes to their employment systems or forms.

B. The Agency will maintain data on the number of complaints filed pursuant to this chapter, demographic information on the complainants, the number of investigations it conducts and the disposition of every complaint and investigation. This data shall be submitted to the City Council every six months for the two years following the date this ordinance takes effect.

14.17.050 Exercise of Rights Protected; Retaliation Prohibited

A. It shall be a violation for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.

B. It shall be a violation for an employer or any other person to retaliate against an employee or job applicant because the employee or applicant has exercised in good faith the right to file a complaint with the Agency about any employer's alleged violation of this chapter, the right to cooperate in the Agency's investigation, or the right to oppose any policy, practice, or act that is unlawful under this chapter.

C. The protections afforded under subsection 14.17.050.B shall apply to any person who mistakenly but in good faith alleges violations of this chapter.

14.17.060 Enforcement

A. The same complaint, investigation, and enforcement procedures set forth in SMC 14.16.080 apply under this chapter, except that when there is a determination that a respondent has violated this chapter, the exclusive remedy available under this chapter is a notice of infraction and offer of Agency assistance for the first violation; an order requiring the respondent to pay a monetary penalty of up to $750, payable to the charging party, for the second violation; and a monetary penalty of up to $1000, payable to the charging party, for each subsequent violation. In the event the Hearing Examiner (or panel majority) determines that a respondent has committed a violation of this chapter, the Hearing Examiner (or panel majority) may order the respondent to pay the Agency's attorney's fees in addition to a monetary penalty. No other remedies, damages, or affirmative action may be ordered by the Agency, Commission, or Hearing Examiner.

B. The Agency has the authority to initiate investigation procedures on its own, without a complaint from a Charging Party, and enforcement procedures after a complaint has been received either from an applicant who feels unjustly treated, or from the applicant's representative, or when the Agency has reasonable cause based on substantial and verifiable information to believe that an employer has violated subsection SMC 14.17.020.A of this chapter.

Section 2. Section 1 of this ordinance shall take effect on November 1, 2013.

Section 3. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________________, 2013, and signed by me in open session in authentication of its passage this

_____ day of ___________________, 2013.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2012.

_________________________________

Michael McGinn, Mayor

Filed by me this ____ day of __________________________, 2013.

____________________________________

Monica Martinez Simmons, City Clerk

(Seal)

Pml LEG Job Assistance Ordinance June 6, 2013 V.5 clean alternative