House File 192 - Introduced HOUSE FILE 192 BY HUNTER , T. TAYLOR , ABDUL-SAMAD , STECKMAN , BROWN-POWERS , McCONKEY , WINCKLER , STAED , MILLER , MASCHER , KACENA , and KEARNS A BILL FOR An Act prohibiting employers and employment agencies from 1 seeking the criminal record or criminal history from 2 applicants for employment under certain circumstances, 3 establishing a criminal history employment application task 4 force, providing penalties, and including effective date 5 provisions. 6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 7 TLSB 1930YH (3) 87 je/rj

H.F. 192 DIVISION I 1 PROHIBITED HIRING PRACTICES —— CRIMINAL RECORD OR CRIMINAL 2 HISTORY 3 Section 1. Section 84A.5, subsection 4, Code 2017, is 4 amended to read as follows: 5 4. The division of labor services is responsible for the 6 administration of the laws of this state under chapters 88 , 7 88A , 88B , 89 , 89A , 89B , 90A , 91 , 91A , 91C , 91D , 91E , 91F, 92 , 8 and 94A , and section 85.68 . The executive head of the division 9 is the labor commissioner, appointed pursuant to section 91.2 . 10 Sec. 2. Section 91.4, subsection 2, Code 2017, is amended 11 to read as follows: 12 2. The director of the department of workforce development, 13 in consultation with the labor commissioner, shall, at the 14 time provided by law, make an annual report to the governor 15 setting forth in appropriate form the business and expense of 16 the division of labor services for the preceding year, the 17 number of remedial actions taken under chapter 89A , the number 18 of disputes or violations processed by the division and the 19 disposition of the disputes or violations, and other matters 20 pertaining to the division which are of public interest, 21 together with recommendations for change or amendment of the 22 laws in this chapter and chapters 88 , 88A , 88B , 89 , 89A , 89B , 23 90A , 91A , 91C , 91D , 91E , 91F, 92 , and 94A , and section 85.68 , 24 and the recommendations, if any, shall be transmitted by the 25 governor to the first general assembly in session after the 26 report is filed. 27 Sec. 3. NEW SECTION . 91F.1 Declarations and purpose. 28 1. The general assembly declares that: 29 a. Removing obstacles to employment for individuals with 30 criminal records provides economic and social opportunities to 31 a large group of individuals in Iowa, as well as increasing the 32 productivity, health, and safety of Iowa communities. 33 b. Employment advertisements in Iowa frequently include 34 language regarding criminal records that is unrelated to the 35 -1- LSB 1930YH (3) 87 je/rj 1/ 10

H.F. 192 employment vacancy and that either explicitly precludes or 1 strongly dissuades individuals from applying for employment for 2 which they are otherwise qualified. 3 c. Individuals with criminal records represent a group of 4 job seekers ready and able to enlarge and contribute to the 5 workforce. 6 d. Securing employment significantly reduces the risk of 7 recidivism for individuals with criminal records. 8 e. The opportunity for individuals with criminal records 9 to secure employment or to pursue, practice, or engage in 10 a meaningful and profitable trade, occupation, vocation, 11 profession, or business is essential to rehabilitation and 12 their resumption of the responsibilities of citizenship. 13 2. It is the purpose of this chapter to improve the economic 14 viability, health, and security of Iowa communities and to 15 assist individuals with criminal records to reintegrate into 16 the community, become productive members of the workforce, and 17 provide for their families and themselves. 18 Sec. 4. NEW SECTION . 91F.2 Definitions. 19 1. “Applicant” means a person pursuing employment with an 20 employer or with or through an employment agency. 21 2. “Commissioner” means the labor commissioner, appointed 22 pursuant to section 91.2, or the labor commissioner’s designee. 23 3. “Criminal record or criminal history” means information 24 collected or possessed by any criminal justice agency or 25 judicial system in this state or in another jurisdiction, 26 including a federal, military, tribal, or foreign jurisdiction, 27 concerning individuals which information includes identifiable 28 descriptions and notations of arrests, detentions, indictments, 29 or other formal criminal charges, and any disposition arising 30 therefrom, including acquittal, deferred judgment, sentencing, 31 correctional supervision, release, or conviction, and any 32 sentence arising from a verdict or plea of guilty or nolo 33 contendere, including a sentence of incarceration, a suspended 34 sentence, a sentence of probation, or a sentence of conditional 35 -2- LSB 1930YH (3) 87 je/rj 2/ 10

H.F. 192 discharge. 1 4. “Employer” means a person who has four or more employees 2 in the current or preceding calendar year and includes an agent 3 of such a person. For purposes of this chapter, individuals 4 who are members of the employer’s family shall not be counted 5 as employees. 6 5. “Employment agency” means a person who, with or without 7 compensation, regularly brings together those desiring to 8 employ and those desiring employment and includes an agent of 9 such a person. 10 Sec. 5. NEW SECTION . 91F.3 Prohibited hiring practices —— 11 exceptions. 12 1. An employer or employment agency shall not inquire 13 about or require disclosure of the criminal record or criminal 14 history of an applicant until the applicant’s interview is 15 being conducted or, if an interview will not be conducted, 16 until after a conditional offer of employment is made to the 17 applicant by the employer or employment agency. 18 2. Subsection 1 does not apply to the following positions 19 if an employer or employment agency establishes a separate 20 application form for such positions that includes the title and 21 job description of the position, the specific state or federal 22 law or bonding requirement that applies to the position, and 23 the types of criminal offenses that would preclude an applicant 24 from being hired for the position: 25 a. Positions where employers are required to exclude 26 applicants with certain criminal convictions from employment 27 due to federal or state law. 28 b. Positions where a fidelity bond or an equivalent bond is 29 required and an applicant’s conviction of one or more specified 30 criminal offenses would disqualify the applicant from obtaining 31 such bond, in which case an employer may include a question or 32 otherwise inquire whether the applicant has ever been convicted 33 of such specified criminal offenses. 34 3. Subsection 1 does not prohibit an employer or employment 35 -3- LSB 1930YH (3) 87 je/rj 3/ 10

H.F. 192 agency from notifying applicants in writing of specific 1 offenses that will disqualify an applicant from employment in a 2 particular position as permitted by subsection 2. 3 4. Subsection 1 does not apply to the following positions: 4 a. Positions where an employee will work within the 5 residence of the employer if the employer or members of the 6 employer’s family reside therein during such employment. 7 b. Positions where an employee will have entry access to a 8 personal residence or an occupied unit in a multiple housing 9 structure. 10 c. Positions where an employee will render personal service 11 to the person of the employer or members of the employer’s 12 family. 13 5. An employment agency shall not be liable for a violation 14 of subsection 1 if the employment agency can demonstrate by 15 clear and convincing evidence that such violation was caused by 16 the employment agency’s good-faith reliance on an affirmative 17 representation by an employer that one of the exceptions listed 18 in subsection 2 or 4 applied to the position in question. The 19 employer shall be liable for any such violations. 20 Sec. 6. NEW SECTION . 91F.4 Powers and duties of the 21 commissioner. 22 1. The commissioner may hold hearings and investigate 23 alleged violations of this chapter by an employer or employment 24 agency. 25 2. The commissioner may assess and recover civil penalties 26 in accordance with sections 91F.5 and 91F.6. 27 3. The commissioner shall adopt rules pursuant to chapter 28 17A to administer this chapter. 29 Sec. 7. NEW SECTION . 91F.5 Civil penalties —— amount. 30 An employer or employment agency who violates the provisions 31 of this chapter shall be subject to a penalty as follows: 32 1. For a first violation, the commissioner shall issue 33 a written warning to the employer or employment agency that 34 includes notice regarding penalties for subsequent violations 35 -4- LSB 1930YH (3) 87 je/rj 4/ 10

H.F. 192 and the employer or employment agency shall have thirty days 1 to remedy the violation. 2 2. For a second violation, or if a previous violation is not 3 remedied within thirty days of notice by the commissioner, the 4 commissioner may impose a civil penalty of up to five hundred 5 dollars. 6 3. For a third violation, or if a previous violation is not 7 remedied within sixty days of notice by the commissioner, the 8 commissioner may impose a civil penalty of up to one thousand 9 five hundred dollars. 10 4. For subsequent violations, or if a previous violation is 11 not remedied within ninety days of notice by the commissioner, 12 the commissioner may impose a civil penalty of up to one 13 thousand five hundred dollars for every thirty days that pass 14 thereafter without compliance. 15 Sec. 8. NEW SECTION . 91F.6 Civil penalties —— recovery. 16 1. The commissioner may propose that an employer be assessed 17 a civil penalty as provided in section 91F.4 by serving the 18 employer with notice of such proposal in the same manner as an 19 original notice is served under the rules of civil procedure. 20 Upon service of such notice, the proposed assessment shall be 21 treated as a contested case under chapter 17A. However, an 22 employer or employment agency must request a hearing within 23 thirty days of being served. 24 2. If an employer or employment agency does not request 25 a hearing pursuant to subsection 1 or if the commissioner 26 determines, after an appropriate hearing, that an employer 27 or employment agency is in violation of this chapter, the 28 commissioner shall assess a civil penalty in accordance with 29 section 91F.5. 30 3. An employer or employment agency may seek judicial 31 review of any assessment made under subsection 2 by instituting 32 proceedings for judicial review pursuant to chapter 17A. 33 However, such proceedings must be instituted in the district 34 court of the county in which the violation or one of the 35 -5- LSB 1930YH (3) 87 je/rj 5/ 10

H.F. 192 violations occurred and within thirty days of the day on which 1 the employer was notified that an assessment has been made. 2 4. After the time for seeking judicial review has expired 3 or after all judicial review has been exhausted and the 4 commissioner’s assessment has been upheld, the commissioner 5 shall request the attorney general to recover the assessed 6 penalties in a civil action. 7 5. Civil penalties recovered pursuant to this section shall 8 be remitted by the commissioner to the treasurer of state for 9 deposit in the general fund of the state. 10 Sec. 9. NEW SECTION . 91F.7 Construction. 11 This chapter shall not be construed to require an employer to 12 employ an individual with a criminal record. 13 Sec. 10. EFFECTIVE DATE. This division of this Act takes 14 effect January 1, 2018. 15 DIVISION II 16 CRIMINAL HISTORY EMPLOYMENT APPLICATION TASK FORCE 17 Sec. 11. CRIMINAL HISTORY EMPLOYMENT APPLICATION TASK FORCE 18 AND REPORT. 19 1. A criminal history employment application task force 20 is created. The task force shall consist of the following 21 members: 22 a. The labor commissioner or the labor commissioner’s 23 designee, who shall represent public sector employers. 24 b. Two representatives of established civil rights 25 and civil liberties organizations appointed by the labor 26 commissioner. 27 c. Two representatives of private sector employers 28 appointed by the labor commissioner. 29 d. One representative of a private sector labor 30 organization appointed by the labor commissioner. 31 e. One representative of a statewide public sector labor 32 organization appointed by the labor commissioner. 33 2. The task force shall study appropriate voluntary 34 standards and procedures for evaluating employment applications 35 -6- LSB 1930YH (3) 87 je/rj 6/ 10

H.F. 192 from an individual with a criminal history, including but not 1 limited to the nature of the crime, the age at which the crime 2 was committed, the nature of the duties of the position applied 3 for, and relevant evidence of the individual’s rehabilitation. 4 3. The labor services division of the department of 5 workforce development shall provide staffing services for the 6 task force. The labor commissioner or the labor commissioner’s 7 designee shall serve as the chairperson of the task force. 8 4. The members of the task force shall serve without 9 compensation and shall not be reimbursed for their expenses. 10 5. The task force shall submit a report regarding its 11 findings and recommendations to the governor and the general 12 assembly no later than January 1, 2018. The report shall 13 include a model pamphlet or other publication in both printed 14 and electronic form on evaluating employment applications 15 from individuals with criminal histories to be distributed to 16 employers in Iowa in a manner similar to other information 17 distributed by the labor commissioner. 18 Sec. 12. EFFECTIVE UPON ENACTMENT. This division of this 19 Act, being deemed of immediate importance, takes effect upon 20 enactment. 21 EXPLANATION 22 The inclusion of this explanation does not constitute agreement with 23 the explanation’s substance by the members of the general assembly. 24 DIVISION I —— PROHIBITED HIRING PRACTICES —— CRIMINAL 25 RECORD OR CRIMINAL HISTORY. This bill prohibits an employer 26 or employment agency from inquiring about or requiring 27 disclosure of the criminal record or criminal history of an 28 applicant until the applicant’s interview is being conducted. 29 If an interview for the position will not be conducted, 30 the prohibition applies until after a conditional offer 31 of employment is made to the applicant by the employer or 32 employment agency. 33 The prohibition does not apply to certain positions listed 34 in the bill if an employer or employment agency establishes 35 -7- LSB 1930YH (3) 87 je/rj 7/ 10

H.F. 192 a separate application form for such positions that includes 1 certain information listed in the bill. The bill does not 2 prohibit an employer or employment agency from notifying 3 applicants in writing of specific offenses that will disqualify 4 an applicant from employment in a particular position as 5 permitted by these exceptions. 6 The prohibition does not apply to certain additional 7 positions listed in the bill. 8 An employment agency shall not be liable for a violation of 9 the prohibition if the employment agency can demonstrate by 10 clear and convincing evidence that such violation was caused by 11 the employment agency’s good-faith reliance on an affirmative 12 representation by an employer that one of the exceptions listed 13 in the bill applied to the position in question. The employer 14 shall be liable for any such violations. 15 The bill defines “applicant” as a person pursuing employment 16 with an employer or with or through an employment agency. 17 The bill defines “employer” as a person who has four or more 18 employees in the current or preceding calendar year and an 19 agent of such a person, excluding family members. The bill 20 defines “employment agency” as a person who, with or without 21 compensation, regularly brings together those desiring to 22 employ and those desiring employment and an agent of such a 23 person. 24 The bill defines “criminal record or criminal history” as 25 information collected or possessed by any criminal justice 26 agency or judicial system in this state or in another 27 jurisdiction, including a federal, military, tribal, or 28 foreign jurisdiction, concerning individuals which information 29 includes identifiable descriptions and notations of arrests, 30 detentions, indictments, or other formal criminal charges, 31 and any disposition arising therefrom, including acquittal, 32 deferred judgment, sentencing, correctional supervision, 33 release, or conviction, and any sentence arising from a verdict 34 or plea of guilty or nolo contendere, including a sentence of 35 -8- LSB 1930YH (3) 87 je/rj 8/ 10

H.F. 192 incarceration, a suspended sentence, a sentence of probation, 1 or a sentence of conditional discharge. 2 An employer or employment agency that violates the 3 provisions of the bill is subject to civil penalties ranging 4 from a written warning for a first violation to up to $1,500 5 every 30 days for a fourth or subsequent violation not remedied 6 within 90 days. 7 The labor commissioner may hold hearings and investigate 8 alleged violations of the bill by an employer or employment 9 agency, may assess and recover civil penalties and seek 10 attorney general assistance in such recovery according to the 11 procedural provisions of the bill, and shall adopt rules to 12 administer the bill. 13 Division I of the bill shall not be construed to require an 14 employer to employ an individual with a criminal record. 15 Division I of the bill takes effect January 1, 2018. 16 DIVISION II —— CRIMINAL HISTORY EMPLOYMENT APPLICATION TASK 17 FORCE. Division II of the bill creates a criminal history 18 employment application task force. The task force shall study 19 appropriate voluntary standards and procedures for evaluating 20 employment applications from an individual with a criminal 21 history, including but not limited to the nature of the crime, 22 the age at which the crime was committed, the nature of the 23 duties of the position applied for, and relevant evidence of 24 the individual’s rehabilitation. 25 The bill lists the membership of the task force. The labor 26 commissioner shall be the chairperson of the task force and 27 the labor services division of the department of workforce 28 development shall provide staffing services for the task force. 29 The task force shall submit a report regarding its findings 30 and recommendations to the governor and the general assembly no 31 later than January 1, 2018. The report shall include a model 32 pamphlet or other publication in both printed and electronic 33 form on evaluating employment applications from individuals 34 with criminal histories to be distributed to employers in Iowa 35 -9- LSB 1930YH (3) 87 je/rj 9/ 10