City of Gainesville moves forward on ordinance to prevent employers from doing background checks before making a job offer

BY JENNIFER CABRERA

At the February 24 General Policy Committee meeting, the Gainesville City Commission discussed a draft of their proposed “Fair Chance Hiring” ordinance and voted to ask the City Attorney to make some changes and bring it back within 90 days.

The draft ordinance, which applies to employers with 15 or more employees except specific businesses like day care facilities, prohibits employers from asking about the criminal history of job applicants or doing a background check unless the employer has first made a conditional employment offer to that person. An employer also may not take adverse action (refuse to hire, refuse to promote, or revoke a job offer) against a person because of their criminal history without determining that the person is unsuitable for the job based on an individualized assessment and then informing the person in writing that the adverse action was based on the person’s criminal history. 

The ordinance would be enforced by the City’s Office of Equity and Inclusion, which has the authority to issue civil penalties (fines) to the business.

Max Tipping, Policy Director of Community Spring, a non-profit that has recently focused on re-entry of people who have been incarcerated, said he was concerned that the draft ordinance didn’t reflect the input they had provided to the Office of Equity and Inclusion. He thought the ordinance should apply to employers with 5 or more employees, should not allow employers to consider arrests or criminal accusations (limit the consideration to convictions) in the background check, should consider the age at the time of the offense and evidence of rehabilitation or good conduct, should add a requirement to allow the potential employee to respond to anything found in the background check, should remove the opportunity for an employer to comply voluntarily before assessing penalties, and should allocate part of the fine to the person who reports the violation.

“I mean, yeah, I’ve been arrested, but they were looking for someone who also happens to be my color. That’s pretty likely in this world.” – Commissioner Reina Saco

Commissioner Reina Saco pointed out that the CEO of Nike (it’s actually Nike’s Jordan brand) murdered someone when he was 16, in 1965, but kept it a secret until recently. “So I think it’s very important to see how old… It’s very different to commit something when you’re 16 versus ‘I did this last year’… If it’s been 40 or 50 years, that should show I’m trying to be a good person. I’m trying to get a job. Let me.’” She agreed that employers shouldn’t be able to ask about arrests since people get arrested because “much more likely in this country, you look like the wrong person… I mean, yeah, I’ve been arrested, but they were looking for someone who also happens to be my color. That’s pretty likely in this world.”

Tipping said they wanted arrests to “be totally off the table,” even after the conditional offer is made. Saco said, “I’ll agree with that. I mean, if it didn’t lead to anything, it didn’t lead to anything.”

Tipping said acquittals should also not affect job offers; Saco agreed, “No one looks to the end of the docket; they just see the charge.”

Saco also wanted the fines to increase if subsequent complaints are made against the same employer. 

Commissioner Cynthia Chestnut supported all of Tipping’s recommendations, but she said she didn’t want to wait nine months to study it. She said businesses already have some familiarity with this because Gainesville was one of the first communities to pass “Ban the box” (an ordinance prohibiting a check box on a job application about criminal history); Mayor Lauren Poe later clarified that this is only a policy for hiring City of Gainesville employees. Chestnut supported having engagement through the Chamber of Commerce on the details of the ordinance, but she recommended doing that within three months.

Commissioner Adrian Hayes-Santos asked Interim City Attorney Daniel Nee to look at options for splitting the penalty with the complainant. Poe added, “This is that next logical step to take [‘Ban the Box’] community-wide.”

Take into account a “pattern” of accusations that were dropped?

Nee said he thought most of the suggestions could easily be accommodated, but, for example, a pattern of domestic battery accusations in which the victim doesn’t want to move forward could warrant further investigation. He also said a warning is built into the civil citation process in Florida statutes, and increasing penalties are also built into the statutes. He said he wasn’t aware of any process for directing part of a fine to the complainant. He said that doing that would change the ordinance “from a shield to a sword.”

A “new type of heavy regulation on businesses”

Commissioner Adrian Hayes-Santos acknowledged that this is a “new type of heavy regulation on businesses” in Gainesville. He supported a lower limit of 15 employees because companies smaller than that typically don’t have human resources departments that keep track of this type of regulation.

Chestnut made a motion to include the ten recommendations from Community Spring, work with Community Spring to bring this before the Chamber of Commerce, and return to the commission within three months with an ordinance. Saco seconded the motion. 

Nee said he was under the impression that some of the recommendations were already in the ordinance, as he had explained. Chestnut modified her motion to remove the change from 15 to 5 employees and to keep a warning for first violations. Nee said that the language about individual assessments included the desired goals of considering the age when the offense was committed and the length of time since the offense, but Poe said they wanted to add “more explicit language, as long as it’s not contradictory.” Saco agreed that she didn’t want to leave anything up to interpretation. 

After some discussion about the pros and cons of prohibiting any consideration of arrests that didn’t result in a conviction (even after the job has been offered), particularly because domestic abuse and child abuse charges can be difficult to prosecute, Chestnut proposed negotiating that with the Chamber and with Community Spring. Nee said the City Attorney’s office typically doesn’t negotiate: “We write what you tell us, as long as it’s legal and ethical.”

Poe said they needed to settle the question: “Do you want to stick with Community Spring’s recommendation, which is that we will not consider arrests, [nolo contendere pleas], or anything other thing unless it’s a conviction?” Chestnut said, “Yes,” so that went into the motion. 

The motion to bring back a draft ordinance within three months after working with Community Spring and the Chamber of Commerce passed unanimously.