| August 23, 2013 |

Richmond, California Takes Ban-the-Box a Step Further

Richmond’s City Council voted on July 30, 2013 in favor of a “ban-the-box” ordinance.  Ordinance 14-13 amends Article II of the Municipal Code of the City of Richmond by adding Chapter 2.65.

Ordinance 14-13 applies to any employer who is a City financial assistance recipient, lessee, or a contractor or subcontractor, and who employs the equivalent of ten or more full-time employees in their total workforce. These employers will be required to remove any question about prior criminal convictions from all of their employment application forms.  This very restrictive ordinance goes a step further and prohibits employers from inquiring into an applicant’s conviction history. This ban on an employer’s ability to inquire into an applicant’s criminal history is one of the most restrictive ban-the-box ordinances we have seen.

There are only two exceptions to the prohibition against inquiring into an applicant’s conviction history. The exceptions are if a criminal background investigation is required by state or federal law, or if the position is considered “Sensitive.” A Sensitive position is one designated by the Richmond Police Department to be of such sensitivity that an exemption is warranted. In this case, the background screening can only be conducted after the employer has determined the applicant is otherwise qualified and has made a conditional offer of employment.  Employers are then limited to consider only “substantially job-related convictions.” This means the conviction record must be substantially related to the duties and qualifications of the position before the employer can consider it when making an employment decision. An individualized assessment must also be conducted to consider the time elapsed since the offense, any evidence of rehabilitation, or other mitigating circumstances.

Compliance with the ordinance will be required for an award of any contract or lease with the City of Richmond, and the City will make random reviews to assess compliance. If the City Manager believes an employer may not be in compliance, the following administrative procedure must be followed:

  1. The City will deliver a written “Notice of Noncompliance” to the employer. The notice will state the noncompliance and the specific action required to correct the violation. It will also state a time period in which to make the necessary correction. The correction period will not be more than 30 days after receipt of the notice.
  2. If the employer disagrees with the notice, it has the burden of proving compliance and submit evidence and argument to the City no more than 30 days after receipt of the notice.
  3. If the City Manager agrees that compliance has occurred it will deliver a written “Notice of Correction of Noncompliance.”
  4. If the City Manager does not agree that compliance has occurred, it will deliver a written “Notice of Failure to Correct Noncompliance.”
  5. Upon receipt of a Notice of Failure to Correct Noncompliance, the employer may request a hearing before the City Manager. The hearing will be held between 20 and 30 days. In the meeting, the employer may present evidence and argument to prove compliance. The City will issue its final determination within ten days of the hearing.
  6. The request for a hearing must be made within ten working days after receipt of the notice. If the employer does not timely request a hearing, the determination of failure to correct noncompliance will be final.

If a final determination of noncompliance is made, the employer is subject to the remedies provided in the ordinance. Noncompliance may result in the suspension or termination of the contract in whole or in part, and civil penalties. The civil penalties may be assessed up to $1,000 or 1% of the total contract, whichever is greater, for each instance of noncompliance. The employer’s history of violation will be a factor in the City’s decision to award future contracts. It may also form the basis for denying contract awards.

Richmond’s Ordinance 13-14 becomes effective August 29, 2013. The text of the ordinance is available on the City’s website: http://ci.richmond.ca.us

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