Washington View: Criminal history plan chock-full of holes, risks

By Don Brunell, Columbian business commentator

Published:

 

Seattle City Councilman Bruce Harrell is proposing a new law that would prohibit employers from "discriminating" against convicted felons. The law would prevent any employer, whether they are a hospital, school or merchant, from looking at an applicant's criminal record until late in the hiring process and, with few exceptions, would not allow them to reject applicants solely on their criminal history.

Harrell says that convicted felons are less likely to reoffend if they have more employment opportunities. He recently told a TV reporter, "Recidivism is so high because they can't get jobs."

In one sense, Harrell is correct. If a person with a criminal record is committed to changing his or her life, having a job helps pay the rent and put food on the table.

But there are other problems to consider.

First, we have to assume Harrell's proposal does not cover people locked away for violent crimes or as sexual predators.

Second, the information about someone's criminal background should be available from the beginning. On a practical level, employers invest considerable time and money in the hiring process, including costly drug testing. Addressing criminal history early in the process makes more sense.

In addition, employers and the people working for them must have a trusting relationship. Understanding someone's background and skills upfront is paramount.

When Gov. Gary Locke took office, First Lady Mona Locke asked the Association of Washington Business and others to join her in developing a program called Computers for Kids. The program collected and shipped used computers to the Airway Heights Correctional Facility near Spokane, where they were refurbished by inmates and distributed to schools.

Airway Heights was a medium-security prison. Being inside the facility felt safe, and talking with the inmates doing the work was instructive. These folks were put in jail for nonviolent crimes and, by and large, were being trained to get a job. As an employer, it is good to know upfront about this person's background, rehabilitation and training for a job.

Adding to uncertainty

Today, employers struggle with uncertainty, taxes, a morass of federal, state and local regulations, and the difficulty of staying afloat in our anemic economy. If Harrell's proposal establishes convicted felons as a protected class, it will create a new layer of uncertainty and risk.

Rejected applicants could file complaints with the Seattle Office of Civil Rights. Even if they lose, they will have cost the employer untold thousands of dollars in time and legal fees in fighting the case.

The law would exempt jobs involving working with seniors or other vulnerable populations, along with those in which public safety is a factor. But what if a convicted burglar wants a job in your locksmith shop? What if a convicted sex offender wants a job installing home carpet? What if a person convicted of vehicular manslaughter wants a job driving one of your trucks?

What happens if a felon hired pursuant to this law commits a crime, either on the job or with information gained through employment? Will the city of Seattle grant employers immunity from liability?

As Angela Bosworth writes at employeescreen.com: "At what stage in the process are (employers) allowed to ask about a candidate's record? Do they follow state or local laws, or do they follow the federal guidelines? How do they follow up with candidates, and how far must they go to keep a job open if criminal history is disclosed? And if they get sued for negligent hiring because they followed the rules and get burned, who is going to pay for their defense?"

Harrell must definitively answer all of those questions before his proposal moves forward.

Don Brunell is president of the Association of Washington Business, Washington state's chamber of commerce. Visit http://www.awb.org.