On November 22, 2011, the Richmond City Council adopted a policy known as “ban the box,” which prohibits asking about a criminal background or convictions in an application for employment with the City of Richmond. See http://www.ci.richmond.ca.us/ArchiveCenter/ViewFile/Item/4013.
Only Bates voted against it.

The purpose of ban the box policies, which are being adopted by many cities nationwide, is to prohibit arbitrary discrimination against employment applicants who have been convicted of a crime. For a summary of the movement, see Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records.

On November 20, 2012, the City Council directed staff to draft an ordinance extending Ban the Box to private employers that do business with the City of Richmond. Here is the excerpt from the Minutes:

On motion of Councilmember Beckles, seconded by Councilmember Ritterman directed the city attorney to draft an ordinance to expand the "Ban the Box" policy to include contractors and vendors conducting business with the City of Richmond by the following vote: Ayes: Councilmembers Beckles, Butt, Ritterman, Vice Mayor Rogers, Mayor McLaughlin. Noes: Councilmember Boozé. Abstentions: Councilmember Bates. Absent: None. A motion was made by Vice Mayor Rogers, seconded by Councilmember Butt to include the business community in the process of drafting the ordinance. A motion to call for the question by Councilmember Bates, seconded by Council member Boozé failed with Councilmembers Butt, Ritterman, Vice Mayor Rogers, and Mayor McLaughlin voting Noe. Discussion continued. The motion to include the business community in the process of drafting the ordinance passed by the following vote: Ayes: Councilmembers Beckles, Boozé , Butt, Ritterman, Vice Mayor Rogers, and Mayor McLaughlin. Noes: None. Abstentions: None. Absent: Councilmember Bates

On the Richmond City Council agenda for July 23, 2013, is the Ban the Box ordinance that would extend the practice to private companies who provide goods or services to the City of Richmond. (see http://sireweb.ci.richmond.ca.us/sirepub/cache/2/rus2frffnu40mo2skjphwrgz/38038307202013075357473.PDF).  
What concerns me is that the proposed Richmond version pushes the envelope further than any other city that has adopted such an ordinance. It not only prohibits asking about prior convictions in the initial application and interview process but bans inquiries altogether unless the position is “sensitive” as determined by the Richmond Police Department or a background check is required by state or federal law, such as in the case of law enforcement or people working with young children. Presumably, sensitive positions may also include crime prevention, security, criminal justice, private investigation, unsupervised access to children under 16, developmentally disabled people, or vulnerable adults.
In the case of the proposed Richmond ordinance, the Police Department would compile a list of “sensitive” positions:

(h) “Sensitive Position” means that the Richmond Police Department has made the determination and recommendation that a job position is of such sensitivity that an exemption is warranted per Section 2.65.050. The City Manager, or designee, is hereby delegated the power and authority to develop the list of “Sensitive Positions”, to be submitted to the City Council for their approval by Resolution.

In all of the ordinances previously adopted by other cities, the employer retained reasonable discretion of determining the sensitivity of the position and whether or not the record of criminal conduct of a prospective employee may reasonably be linked to particular positions. The employer then exercised discretion in determining if the record was pertinent to the hiring decision based on:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

I believe that Richmond’s ordinance should be consistent with its predecessors and with the Enforcement Guidance of the U.S. Equal Employment Opportunity Commission’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. For example, Seattle’s ordinance is in line with the direction that the EEOC and federal policy:

• Employers can inquire about arrests, but are prevented from taking a negative action based solely on an arrest, as it is not proof of unlawful conduct.

Once an employer is to the point to legitimately inquire about an applicant’s criminal background, the other cities’ laws typically allow a decision not to employ if the employer has a “legitimate business reason” to take action based on a criminal history.
The employer must believe one of two things:

• That there will be a negative impact on the applicant’s or employee’s fitness or ability to perform the job due to their criminal background.
• That the conviction will harm or cause injury to people, property, the company’s reputation, or its business assets.

For each person the following must be contemplated:

• Seriousness of the conviction or pending charge
• Number and types of convictions
• Time that has elapsed since conviction, excluding periods of incarceration
• Verifiable information related to the applicant’s rehabilitation or good conduct, which the individual provides
• Specific job duties and responsibilities
• Place and manner in which the job will be performed

Here is what the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. says:

Detailed Discussion of the Green Factors and Criminal Conduct Screens

Absent a validation study that meets the Uniform Guidelines’ standards, the Green factors provide the starting point for analyzing how specific criminal conduct may be linked to particular positions. The three Green factors are:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

a. The Nature and Gravity of the Offense or Conduct
Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation.115 With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.
b. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence
Employer policies typically specify the duration of a criminal conduct exclusion. While the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard.116 Subsequently, in El, the court noted that the plaintiff might have survived summary judgment if he had presented evidence that “there is a time at which a former criminal is no longer any more likely to recidivate than the average person . . . .”117 Thus, the court recognized that the amount of time that had passed since the plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in question.
Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.118
c. The Nature of the Job Held or Sought
Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job’s duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”119
I am recommending that Section 2.65.040 of the proposed ordinance be amended to be consistent with practice in other cities that have adopted such policies and with U.S. Equal Employment Opportunity Commission’s guidance documents regarding the use of arrest or conviction records in employment decisions, as follows:
All contractors, lessees, recipients of City financial aid, and their respective subcontractors that employ the equivalent of ten or more full-time employees in their total workforce and who desire to obtain contracts with the City of Richmond, are subject to the following requirements as a condition precedent to the award of any contract or lease with the City as per Section 2.65.060:
(1) Remove any question regarding prior criminal convictions from printed and/or on-line employment application forms; and
(2) Do not make any inquiry into an applicant’s conviction history prior to conditional offer of employment.
(3) Only when required by law, when the position is sensitive as defined in Section 2.65.030 (h), or when the vendor has a legitimate business reason, may a background check be conducted or inquiries made about an applicant’s conviction history on otherwise qualified applicants for a position.  A background check may not be conducted until a conditional offer of employment has been made. An employer has a legitimate business reason to take action based on a criminal history when the employer believes:.

• That there will be a negative impact on the applicant’s or employee’s fitness or ability to perform the job due to their criminal background.
• That the conviction will harm or cause injury to people, property, the company’s reputation, or its business assets.

The factors that mustbe considered in the employment decision are:

• Seriousness of the conviction or pending charge
• Number and types of convictions
• Time that has elapsed since conviction, excluding periods of incarceration
• Verifiable information related to the applicant’s rehabilitation or good conduct, which the individual provides
• Specific job duties and responsibilities
• Place and manner in which the job will be performed

(3) If a criminal background investigation is required by State and/or Federal law for a position or the position is Sensitive as defined in Section 2.65.030 (h), the background screening will be conducted after the Employer has determined that the applicant is otherwise qualified, and the Employer has made a conditional offer of employment. The Employer’s consideration of a conviction record will be limited to a Substantially Job-Related Conviction and must involve an Employer’s individualized assessment including time elapsed since the offense and any evidence of rehabilitation or other mitigating circumstances. If the Employer makes an adverse hiring decision because of a Substantially Job-Related Conviction, the applicant must be provided with a written notice of rejection including how the conviction may be related to the job, and given the opportunity to correct any inaccuracies in the conviction record information and to offer any other evidence of rehabilitation or other mitigating circumstances.

The reasons for my recommendation are as follows:

• There is no compelling reason that employers of 10 or fewer persons should be exempt. Creating an arbitrary divide between those bound by the ordinance those not bound serves no constructive purpose.
• Only an employer has the detailed knowledge of its business and of its other employees to make the final decision about whether the criminal background history of a particular individual is pertinent to a hiring decision. The Richmond Police Department cannot anticipate every position in every employer’s organization that is “sensitive.” There is as much a chance of being overzealous as there is in not anticipating a critical potential sensitivity. There is vast number of job descriptions that changes daily. Making the City responsible for knowing all of them and keeping a sensitivity evaluation up to date would be tedious, time-consuming and impractical.