Ted Yamasaki, Managing Deputy Director Susan Gard, Chief of Policy

1. Establishing Justice and Promoting the General Welfare:How an Effective Conviction History Program Can Eliminate Hiring Bias and Promote Public Safety Ted Yamasaki, Managing Deputy Director Susan Gard, Chief of Policy City and County of San Francisco Department of Human Resources ipma-hr.org

2. Presentation Agenda Setting the Context Scope of Problem Societal Impacts City and County of San Francisco as an Employer History of Program Legal Parameters The San Francisco Experience Operational Challenges Case Study

3. Scope of Problem • States spend $52 billion a year on corrections costs • Number quadrupled over last 20 years due to changing law enforcement philosophies • 650,000 people released from nation’s prisons every year—nine million more released from jails • Two-thirds rearrested within three years of release • California has second highest rate of recidivism in country, according to Pew Center on the States

4. Societal Impacts • In 2011 United States Supreme Court ordered California to reduce severely overcrowded prisons • Released to neighborhoods where crimes were committed—entire communities destabilized • Few job prospects, internal and external pressures, re-offend and return to incarceration • Lifetime consequences

5. City and County of San Francisco • 60 Departments • Varied size • Range of services • Diverse workforce of 28,000 • City’s largest employer • Merit system with 1,100 job classifications • 37 unions represent employees

6. History of Program • October 2005: SF Board of Supervisors passed Resolution to “Ban the Box” • City established Conviction History Program • Finalists self-disclose conviction history to hiring manager prior to offer of employment • April 2012: EEOC issued enforcement guidance document • October 2013: CA Assembly Bill 218 banned the box for California public agencies • August 2014: City enacted Fair Chance Ordinance

7. Legal Parameters

8. EEOC Guidance • EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, national origin • Having criminal record NOT protected category • Employer’s liability for employment discrimination: • Disparate treatment • Disparate impact

9. EEOC Guidance • Majority of employers stated they used criminal background checks for all or some job candidates to: • Combat theft and fraud • Limit workplace violence • Limit liability for negligent hiring • Employer’s use of criminal history in employment decisions may violate Title VII

10. EEOC Guidance • Disparate treatment: • Plaintiff demonstrates he was rejected based on criminal record, but employer hired similarly situated applicant of different race with comparable criminal record • Disparate impact: • Plaintiff demonstrates employer’s neutral policy or practice disproportionately screens out Title VII-protected group and employer fails to demonstrate policy or practice is job related

11. GreenfactorsAnalysis • 1975 Green v. Missouri Pacific Railroad held it was discriminatory under Title VII for employer to “follow the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offence” • Eighth Circuit identified three factors relevant to assessing whether exclusion is job-related: • Nature and gravity of offense or conduct • Time passed since offense or conduct and or completion of sentence • Nature of job held or sought

12. Greenfactors Analysis • Institute policy and procedure that ensures City selects most qualified individuals for positions without unreasonably denying qualified individuals based solely on conviction history

13. The San Francisco Experience

14. Program Foundation • Centralized conviction history data collection and analysis • Pre-employment nexus determinations • Core principles of: • Recency • Relevance • Rehabilitation

15. The General Process

16. Position Specific Attributes (PSAs) • Operate vehicle • Work with vulnerable populations • Work with public • Work with animals • Sign official documents • Process cash, checks, credit cards • Access to confidential information • Access to electronic infrastructure • Keys to living spaces • Work with pharmaceuticals • Work with specific toxins • Handle weapons • Use valuable tools or equipment

17. Conviction Categories Vehicle Any criminal traffic offense(s) involving use of a vehicle such as driving under the influence (DUI), hit and run, evasion of police, reckless driving, or bodily injury or death. Violence Offenses involving force or threat of force, personal injury or death, including domestic or family violence, elder abuse, child abuse, neglect, endangerment, molestation, kidnapping, cruelty to animals, use of weapons, threats, harassment. Property Offenses in which objective is taking money or property, but there is no force or threat of force against victims. Includes burglary, larceny-theft, motor vehicle theft, arson, damage to or destruction of property, including vandalism, criminal mischief.

18. Conviction Categories Fraud Intentional deception for personal gain or to damage another individual or entity. Theft, fraud, or misappropriation of funds, including check forgery. Fraud or abuse involving a federal state or state agency program, including welfare fraud or workers’ compensation fraud. Sex offense Sex crimes including but not limited to: solicitation, prostitution, rape, spousal rape, statutory rape, child abuse, sexual battery, and lewd acts in public. Weapons Use of weapons, threats, harassment or use of force, illegal sale, use or possession of weapons or explosives. Controlled substance Transportation, use, possession or sale of drugs, drug paraphernalia and/or controlled substances in violation of state or federal law.

19. The Matrix

20. Individual Nexus Assessment (Relevance) • Relevance of conviction to position-specific attributes carries most weight • Example: If applicant convicted of a DUI and would be required to drive in City position, a nexus between the position and conviction exists

21. Individual Nexus Assessment (Recency) • Time elapsed since conviction and severity of conviction considered • Example: If individual convicted of misdemeanor DUI more than five years ago, time lapsed and lesser charge mitigate • Felonies: 10 years since end of sentence • Misdemeanors: 5 years since end of sentence • Forever look-back: • Murder • Attempted murder • Mayhem • Arson • Sex-related crimes

22. Individual Nexus Assessment (Rehabilitation) • If nexus established, is there evidence of rehabilitation? • Example: In that five years did the person attend alcohol counseling, work successfully, develop references, etc.? • Weigh in applicant’s favor and may be sufficient to break the nexus

23. Nexus Determination Results August 2013-August 2014

24. Operational Challenges

25. Operational Challenges • Nexus determination made by committee • Minimizing unintentional disparate impact through bias and stereotyping • Exercising sound, job-related judgment in nexus determination • Increased central agency risk in determining nexus for hiring departments

26. Case Study

27. The Position • Personnel Analyst with Department of Recreation and Parks (REC) • Duties: • Under direction, performs difficult and responsible professional and technical personnel work in areas of recruitment, examinations, classification and salary administration; may perform technical work in other phases of personnel administration and thereby serve in an important resource capacity • Major assignments may include: (1) serving as a team leader in the areas of recruitment, examinations and classification, or (2) serving as an assistant team leader, or (3) performing difficult and specialized personnel work and thereby serving as a resource individual for special problems • Applicant selected as finalist September 2013

28. Position Specific Attributes (PSAs) • PSA-1: Drive a personal or City vehicle, or operate heavy machinery in the performance of duties of the position • PSA-2: Work in a setting with or near vulnerable populations • PSA-7: Have access to confidential or privileged information • PSA-13: Have unsupervised responsibility for or access to tools, equipment, supplies, or other City property with a value in excess of $100 • REC routinely employs youth ages 14-18 through its “Workreation” Program • Position works with and around Workreation workers

29. Case Chronology • October 2013: Candidate fingerprinted • November 2013: California Department of Justice (DOJ) response contained seven felony convictions for sexually-related crimes against minors • November 2013: Candidate sent notice to provide evidence of rehabilitation • November 2013: Five letters and certificate of discharge submitted by candidate as evidence of rehabilitation • November 2013: DHR determined direct nexus to position existed and evidence of rehabilitation insufficient to mitigate determination • November 2013: DHR recommended disqualification of candidate eligibility and REC concurred • November 2013: Letter of disqualification sent to candidate • February 2014: Candidate appealed decision to Civil Service Commission

30. The Appeal • Recency: • Crimes fall under forever look-back standard • Sentenced to 12 years in prison June 2000 • Released December 2009 • Parole ended April 2013 • At the time of fingerprinting only seven months had passed since discharge from parole • Candidate argued crime was committed 14 years earlier • Should recency standard apply?

31. The Appeal • Relevance: • Works in a setting with or near vulnerable populations (children) • Candidate argued position did not actually supervise children and not responsible for interacting with children • Standard does not apply just because children might be present • Should relevance standard apply?

32. The Appeal • Rehabilitation: • Writer of one letter states “never knew any details of the criminal record” • Another states candidate ceased attending therapy treatments as soon as parole was over, did not complete curriculum or graduate • No evidence of current or ongoing rehabilitation or treatment provided • No plan against relapse or ability to work near or with children noted • Candidate provided further evidence of rehabilitation at time of appeal • Letters state low chance of re-offending • Should new letters be considered? Is new evidence of rehabilitation enough to mitigate nexus determination?

33. Case Outcome • Is there a position nexus? • Should the candidate be disqualified from position? • How do recency, relevance, and rehabilitation affect your decision?

34. Contact: Kim Walden kimberlee.walden@sfgov.org (415) 557-4951 Contact: Janina Villanueva janina.villanueva@sfgov.org (415) 557-4976   Contact: Susan Gard susan.gard@sfgov.org (415) 551-8942 Questions?