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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
Presentation Agenda
Setting the Context
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o
Scope of Problem
o
Societal Impacts
o
City and County of San Francisco as an Employer
o
History of Program
Legal Parameters
The San Francisco Experience
Operational Challenges
Case Study
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
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, reoffend and return to incarceration
 Lifetime consequences
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
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
Legal Parameters
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:
o Disparate treatment
o Disparate impact
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
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
Greenfactors Analysis
•
•
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:
o Nature and gravity of offense or conduct
o Time passed since offense or conduct and
or completion of sentence
o Nature of job held or sought
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
The San Francisco Experience
Program Foundation
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Centralized conviction history data
collection and analysis
Pre-employment nexus
determinations
Core principles of:
o Recency
o Relevance
o Rehabilitation
The General Process
Position Specific Attributes (PSAs)
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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
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.
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.
The Matrix
Vehicle
Operate a Vehicle
Violence
Property
Fraud
Sex
Weapon
x
Drugs
x
Work with or Near Vulnerable Populations
x
Work with public
x
Work with animals
x
x
x
x
x
x
x
x
x
x
Sign Official Documents
x
x
Process Cash, Checks, Credit Cards, Etc…
x
x
Electronic Infrastructure
x
x
Confidential Information
x
x
x
x
x
x
x
x
x
x
Have Keys to living spaces
x
Work with or near Pharmaceuticals
Work with or near CDC Toxins
x
Handle Weapons
x
Use Tools over $100
Vote Tabulating Equipment
Other
x
x
x
x
x
Other
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
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
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
Nexus Determination Results
Total Fingerprinted: 6,800
Cleared (6,224)
92%
Conviction
History
(576)
8%
Conviction History - No Nexus
(427)
74% of total with conviction
history
Cleared Post Nexus Review
(134)
90% of total with conviction
history and nexus
Disqualified Post Nexus Review
(15)
10% of total with conviction
history and nexus
3% of total with conviction
history
August 2013-August 2014
Operational Challenges
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
Case Study
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
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
Case Chronology
 October 2013: Candidate fingerprinted
 November 2013: California Department of Justice (DOJ) response
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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
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?
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?
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?
Case Outcome
• Is there a position nexus?
• Should the candidate be disqualified from
position?
• How do recency, relevance, and rehabilitation
affect your decision?
Questions?
Contact: Kim Walden
[email protected]
(415) 557-4951
Contact: Janina Villanueva
[email protected]
(415) 557-4976
Contact: Susan Gard
[email protected]
(415) 551-8942