Criminal Background Checks and Job Searches

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By Jay Peterson, CILS Sacramento office Senior Staff Attorney

Communities of color experience disproportionate contact with the law. (Read: racial profiling.) This excessive law enforcement contact results in a similarly disproportionate number of criminal records in the form of arrests, custodial detentions, and convictions. Employers use these records to deny people of color jobs. This means criminal records are used to deny a disproportionate number of Native people jobs. Any Native person can attest to this collective experience in the job market. Today, however, criminal records should not deter anybody from applying for a job in California.

Social science research makes it abundantly clear that criminal records present a considerable barrier to gainful employment. Criminal records provide easily accessible but arbitrary screening mechanisms for employers when they are evaluating potential hires. More often than not, disclosure of a criminal record prompts the prospective employer to disqualify a job applicant automatically and to discard an employment application altogether.

As a screening mechanism, criminal records artificially limit individual job prospects and earnings potential but are often justified on the assumption these records predict future job performance. Criminal records are not reliable predictors of future job performance. An extensive study of United States military hiring practices shows that there are no measurable differences in attrition rates based upon poor work performance between military enlistees with and without criminal records. (1)

Race only compounds this bias. The “race effect” in the job market is maybe even more powerful than the impact of criminal records in suppressing employment in communities of color. In one study, for example, white job applicants with criminal records were more likely to receive job offers than black applicants without criminal records. (2)

Taken together, race and criminal records create a nearly insurmountable barrier against finding work. Fortunately, California law provides some ways to clear this hurdle.

Conviction dismissal (expungement) and arrest sealing are both legal options in California that generally insulate conviction records from consideration in work-related decisions—hiring, firing, and promotion. The Fair Chance Act of 2018 provides additional legal protections to job seekers with criminal records. (3) This California law includes some key features:

  • Eliminates the use of criminal records as a screening mechanism
  • Applies to employers with more than five employees
  • Prohibits employers from asking about job applicant criminal records before making a job offer, and employers need your consent to check your records
  • Prohibits job applications from containing questions about criminal records
  • Prevents employers from considering arrests that did not result in convictions, diversion program participation, and convictions that have been sealed or expunged
  • Allows challenges to adverse decisions based on your record within one year

CILS believes that Native job seekers with criminal records should review a copy of their criminal conviction abstract (RAP sheet) before they begin the job interviewing process. (4)

We also believe that credit reports should be reviewed before the job interview process begins. These reports can contain criminal record histories in addition to credit histories and can be obtained once per year without affecting credit ratings. (5)

Natives with questions about criminal histories and employment can contact CILS’ Native American Record Clearing (NARC) Project through our Sacramento Field Office by calling toll free (800)-829-0284 before they begin their job searches.

  1. “Does a Criminal Record Predict Worker Performance? Evidence from One of America’s Largest Employers,” Lindquist, J. H., Pager, D., Strader, E., Social Forces Volume 96 Issue 3, (March 2018): 1039-1068.
  2. The Mark of a Criminal Record”, Pager, D., American Journal of Sociology 108 Number 5 (March 2003): 937-975.
  3. For more information, see “Criminal History in Employment” at https://www.dfeh.ca.gov.
  4. RAP sheets can be obtained from the California Department of Justice at https://oag.ca.gov/fingerprints/record-review.
  5. com or 877-322-8228.

 

 

 

 

Tribal Child Support: The Tribe is Not an Arm of the State’s Child Support Enforcement Unit

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By Denise Hurchanik Bareilles, CILS Eureka office Acting Directing Attorney

You have probably seen in the media various groups painting a picture that tribal governments make it difficult to collect child support for custodial parents. However, this is not the case. It is important to understand the significance of a Tribe administering its own child support agency instead of acting as an arm of the state’s child support enforcement unit. Tribes have the inherent sovereign authority to regulate the domestic relations matters of its members, which includes establishing and enforcing child support orders. Tribes may develop this program unique to its customs, traditions and laws by setting up their own agency through tribal dollars or applying for funds from the federal agency Administration of Children & Families, Office of Child Support Enforcement (ACF, OCSE).

There are currently 60 tribal Title IV-D child support agencies nationwide that are funded by the OCSE.  However, additional tribal child support agencies exist that that rely primarily on tribal dollars.

Some Benefits To Setting up a Tribal Title IV-D Child Support Program:

  • A maximum of $500,000.00 over a period of two (2) years to plan for the start-up of a Title IV-D tribal child support program in compliance with federal regulations found at 45 CFR Part 309.
  • After planning ends, the agency’s budget is funded 90% by the OCSE and 10% by the tribal government during the first three years of the program’s operation (i.e., direct services). Thereafter, the agency’s budget is funded 80% by the OCSE and 20% by the tribal government.
  • Development of tribal self-governance programs.
  • Providing employment for tribal members.
  • Development of tribal law addressing child support, including the tribe’s own child support guidelines.
  • Allowance for non-monetary forms of payment specific to tribe’s culture and tradition. Some Tribes have provided for support through fish and/or firewood upon agreement of the parties. The support order must describe the type of non-cash support that will be permitted to satisfy the underlying specific dollar amount of the support order.
  • Development of policy and law regarding income withholding orders, and attachment of other membership resources under the tribe’s jurisdiction.
  • Development of policy and law regarding intergovernmental case processing between the Tribe’s child support agency and agencies outside of the tribal government. Outside agencies must refer their foreign orders to the tribal agency for case processing consistent to the tribe’s policies and laws.
  • Development of policy and law regarding paternity establishment.
  • The tribal agency may design its program to transfer tribal child support cases from the state system to the tribal system for case management and legal court proceedings. California Rule of Court 5.372 specifies the case transfer procedure.
  • The tribal agency may develop a Memorandum of Understanding with the state child support agency to detail how cases are worked between governments.
  • The federal Full Faith and Credit for Child Support Orders Act (28 USC § 1738B) requires that courts give full faith and credit to another government’s child support court orders.

Applying for Title IV-D Funds:

Tribal governments that are interested in developing a child support agency in compliance with 45 CFR Part 309 may apply for start-up funds with the ACF, OCSE. Funds are available on an annual basis upon the grantor’s approval of the Tribe’s Title IV-D Plan. Interested tribes should have federal recognition, at least 100 minor children within its jurisdiction, and a Tribal Court (which may include a tribal consortium court). OCSE has a central office in Washington, DC and a regional office in San Francisco, CA (Region 9) that services the California Tribes. A start-up grant application may be submitted at any time of the year. There is no specific due date.

 

 

Hemp Update for California Tribes

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(Maja Dumat, Flickr/Creative Commons)

By Alexis Lindquist, CILS Escondido office Staff Attorney

Until recently, hemp was considered a Schedule I controlled substance under the federal Controlled Substances Act. Also included under the Schedule I list of controlled substances: heroin, LSD, ecstasy, and you guessed it… peyote. Even methamphetamine is a lower level Schedule II substance. To this day, marijuana remains a Schedule I controlled substance, and it wasn’t until recently that hemp was clearly defined and taken out of that same category.

If you aren’t familiar with the term “hemp,” it is technically non-psychoactive cannabis. “Non-psychoactive,” meaning cannabis with a less than .3% tetrahydrocannabinol (more commonly known as THC), concentration. Prior to the removal hemp from Schedule I, done under the 2018 Farm Bill, which requires promulgation of both state and federal regulations, hemp continued to live in a legal gray zone as federal and state law in California were conflicting.

The Farm Bill that was enacted in 2018 amended the Agricultural Marketing Act of 1946 and launched a growing national program. The bill legalized non-psychoactive hemp on December 20, 2018. Still, it wasn’t until October 31, 2019, that the US Department of Agriculture released its long-awaited interim rule for the domestic production of hemp. This rule gave much-needed clarity to the 2018 federal farm bill, giving growers and ancillary business more direction in how the crop will be regulated.

Under the new rule, the USDA can approve hemp production plans developed by Native American tribes. States may no longer prohibit the interstate transport of hemp that has been legally grown under the program, effectively making interstate commerce feasible with regards to hemp and hemp products.  In order to obtain USDA approval, an Indian tribe may submit a hemp production plan that includes, among other things, information about the land to be used for cultivation, procedures for testing THC levels, and methods for disposing of plants that exceed those levels.

Although more than six months have passed since the 2018 Farm Bill excluded hemp from the legal definition of marijuana, a regulatory framework for the lawful marketing of products derived from CBD has yet to emerge. As of now, the FDA has only approved a single drug derived from CBD — Epidiolex, a medicine used to treat seizures. The FDA’s view is that until further testing is performed on CBD products, the inclusion of CBD in foods, drugs, dietary supplements, and pet food… remains illegal.

To read the USDA Domestic Hemp Production Program and the rule governing the 2018 Farm Bill, click here.

To see the list of states and tribes which have applied for a hemp license and the current status of licensure, click here.

For information on how and where tribes may submit plans to the USDA for approval, click here.