1. Working with a Record: Legal Strategies To Address a Job Seeker’s Criminal History Vanessa Torres Hernandez Staff Attorney, Equal Justice Works Fellow Email: vhernandez@aclu-wa.org

4. Background Checks  Increasingly mandated by law for licensed industries  92% of employers conduct background checks on some or all applicants, up from 50% in 1996. Source: Society of Human Resources Management, Background Checking: Conducting Criminal Background Checks (Jan. 2012); National Employment Law Project  Applicants with records half as likely to receive follow up interviews. African American applicants two-thirds less likely. Source: Devah Pager, Bruce Western and Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records (2009)

5. Long Term Impact  Economic Inequality  People with criminal convictions work fewer hours, make less money, and demonstrate less economic mobility, even decades after conviction.  Impact on children with incarcerated parents Source: Western, B., and Pettit, B, “Collateral Costs: Incarceration’s Effect on Economic Mobility” (2010)  Increased Recidivism  Lack of housing and employment strongly correlated with re-offending. Source: Visher, C. and Courtney, S., “One Year Out: Experiences of Prisoners Returning to Cleveland”, Urban Institute (2007)

6. First Steps Step 1: Learn info on record. Step 2: Minimize if possible and correct mistakes Step 3: Pick jobs strategically Step 4: Gather material for an individualized assessment. Step 5: Apply and protect procedural rights

7. STEP 1: WHAT’S ON YOUR RECORD?

8. What is a “criminal record”?  No single record  Two original sources of information repackaged in infinite combinations:  Law enforcement (Washington State Patrol)  Court records  Juvenile records public in WA  No conviction “washes out” or erases itself from court or law enforcement records.

9. How do I get a state criminal history report?  Washington State Patrol maintains all state records  You can purchase the reports online for $10 at http://watch.wsp.wa.gov http://watch.wsp.wa.gov  You have a right under state law to review your record in person  Call 360-634-2000 to review and copy the record at the Washington State Patrol office in Olympia  You can also review the record at your local police office, but it will take longer  You may be charged a small fingerprint fee.

10. Getting Court Records  www.courts.wa.gov www.courts.wa.gov  JIS-Link  Go to district or superior court and ask for a “Defendant’s Criminal History” (DCH)  Indicates all cases and outcomes  You can get specific records for each case at clerk’s office in the court

11. What if I have out of state convictions?  The FBI maintains records from all 50 states  To get a copy of your FBI record, you must submit :  Fingerprints (available at Seattle police department for $7)  $18 payment (money order or credit card)  Application form (http://www.fbi.gov/about-us/cjis/background- checks/applicant-information-form)http://www.fbi.gov/about-us/cjis/background- checks/applicant-information-form  Send to: FBI CJIS Division – Record Request 1000 Custer Hollow Road Clarksburg, WV 26306

12. STEP 2: MINIMIZING RECORDS

13. What can I do to minimize my record?  Correct Errors  “Vacate” adult convictions  Seal adult convictions  Seal juvenile records  “Expunge” non-conviction data  Other possible remedies  Certificates of Rehabilitation  Pardons

14. Correct Errors  Common errors on WSP and FBI reports  No disposition reported  “Classification unknown”  Mistaken charge  How to correct  Send written request for modification to WSP  Include supporting documents  If in FBI report, WSP will transmit information

15. Vacating Adult Convictions  No Federal Vacate  What doesn’t it do?  Seal court records  Prevent employer from ever finding out about the case  What does it do?  Removes guilty verdict, substitutes not-guilty and dismisses the case  Gives you the legal right to say you’ve never been convicted of the crime

16. Eligibility to Vacate  Felony  Crime was not “crime against persons,” DUI, violent offense or Class A felony or attempt to commit Class A felony  Completed terms of sentence and received certificate of discharge, or eligible to get one.  Been 5 years (for class C felony) or 10 years (for class B felony) since eligible for discharge  No convictions since discharge  No pending charges

17. Eligibility to Vacate (cont.)  Misdemeanors  No DUI offense, violent offenses, sex- offenses  Completed terms of sentence  3 years since completing terms of sentence (5 years if DV crime)  No convictions since conviction in this case  No pending cases  No protection orders in past 5 years  Never vacated another conviction.

18. Expungement of Non-Conviction Data  If two years from disposition or three years from arrest  Only impacts law enforcement records, not court records  Only when no adverse finding – deferrals and suspended sentence doesn’t count  Can be denied if subsequent convictions

19. Sealing Adult Records  Makes court records private, and means should not legally be reported.  Rare and disfavored under constitution  Hearing required, should work with attorney.  Must prove to court  Serious and imminent harm to compelling interest  Your interest outweighs public interest  Sealing “least restrictive means” to protect your interest  Interested parties given notice and opportunity to object  Limited duration (and if anyone moves to unseal, you have to prove continuation of reason to seal)

20. Sealing juvenile records  www.sealyourjuvenilerecord.org www.sealyourjuvenilerecord.org  Requirements  2 years since release from last conviction or confinement on most offenses, 5 years for class A felony.  No pending charges  Paid full restitution on juvenile charge to be sealed  No sex offender registration.

21. Other possible remedies  Pardon  Rare, but possible with recommendation of pardon board.  Certificates of Rehabilitation  No clear mechanism to grant under WA law  Cases cast doubt on inherent authority of court to issue  Must file motion with court, should work with attorney

22. STEP 3: PICK JOBS STRATEGICALLY

23. How should an employer use your record? “[Arrest] records alone cannot be used to routinely exclude persons from employment.” Employers should consider conviction records only if they are “job related and consistent with business necessity.” -- The Equal Employment Opportunity Commission

24. “Business Necessity” At a minimum, employer must develop a “targeted screen” that takes into account 1) nature of job, 2) nature of conviction, 3) age of conviction. Employer can also avoid liability by providing an opportunity for “individualized assessment” of applicant.”

25. Jobs with additional complications  Licensed professions:  health care,  working with children and vulnerable adults,  financial professions  security  www.abacollateralconsequences.org

26. STEP 4: PREPARE FOR AN INDIVIDUALIZED ASSESSMENT

27. Individualized Assessment  The facts or circumstances surrounding the offense or conduct;  The number of offenses for which the individual was convicted;  Older age at the time of conviction, or release from prison;  Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;  The length and consistency of employment history before and after the offense or conduct;  Rehabilitation efforts, e.g., education/training;  Employment or character references and any other information regarding fitness for the particular position; and  Whether the individual is bonded under a federal, state, or local bonding program

28. Types of documents  Copies of court records  Proof of education/volunteer work  Proof of treatment/counseling  Information re: bonding (www.wa.gov/esd/oes/bond)  Recommendation letters  Probation, employers, clergy, community leaders, teachers, co-workers

29. STEP 5: APPLY AND PROTECT YOUR PROCEDURAL RIGHTS

30. Application Questions  Answer completely.  State regulation says employer shouldn’t ask about convictions older than 10 years  No legal responsibility to disclose additional information, but  Failure to accurately answer on applications is a legal basis for denial.

31. CRAs... And hundreds of other companies just like them.

32. Your rights  Right to authorize: employers need written permission to get a report from CRA  Right to notice: employer must give you notice and copy of the report BEFORE they take any adverse action  Right to fair information: CRAs must comply with time limits in state and federal law  Right to reasonable procedures to ensure “maximum possible accuracy” of information in report  Right to dispute and correct

33. What can a CRA report?  Convictions  For life  Unless the job pays less than $20,000 a year. Then, only for 7 years  Unless applying for rental housing in WA, then only for 7 years.  Juvenile Adjudications  For life  Unless job pays less than $20,000, and then only until the subject of records is 21.  Unless applying for a rental apartment in Washington – then only for 7 years  Arrests not resulting in conviction  Only for 7 years from date of arrest  Unless job pays more than $75,000, then for life

34. What if employer rejects application?  Ask for adverse action notice  Ask for individualized assessment and be prepared to discuss  Criminal history and its relationship to job  All efforts at rehabilitation  Document interactions with employer (names of people you spoke with, when, how)

35. Legal remedies to protect rights  Fair Credit Reporting Act claims  Complaint to FTC  Suit for actual damages  Employment Discrimination claims  Complaint to EEOC or local agency  Suit for actual damages and injunctive relief

36. Fair Tenant Screening  Before charging a screening fee, landlord must provide name of screening company and criteria used to screen applicants  Landlord must give written reason for denial  Screening reports cannot include convictions older than 7 years  Potential “disparate impact” charge

37. THANK YOU! Questions? Comments?