In this Edition:

• Parity Hill Day Indicates Strong Support for “Paul Wellstone Mental Health and Addiction Equity Act"
  
  
• Saving Kids from Dangerous Drugs Act of 2007” Introduced in Senate
  
  
• House Judiciary Subcommittee Conducts Hearing on Employer Access to Criminal Background Checks; Witnesses Cite Need for Greater Accuracy and Guidance to Employers on Hiring People with Criminal Records
  
  

Parity Hill Day Indicates Strong Support for “Paul Wellstone Mental Health and Addiction Equity Act"

At a Capitol Hill event on Wednesday, May 2, 2007, House Speaker Nancy Pelosi (D-CA), House Leaders and over a dozen House colleagues convened at a press conference to show their strong support for H.R. 1424, the “Paul Wellstone Mental Health and Addiction Equity Act.” The event highlighted the need for passage of the legislation as well as the presentation of a report of findings from 15 field hearings examining insurance coverage of addiction and mental illness entitled, "Ending Insurance Discrimination: Fairness and Equality for Americans with Mental Health and Addictive Disorders” to the Democratic leadership by Representatives Patrick Kennedy (D-RI) and Jim Ramstad (R-MN). Also in attendance at the press conference was David Wellstone, the son of the late Senator Paul Wellstone (D-MN), a parity advocate and the bill’s namesake, who expressed his hope that this legislation would be approved by Congress.

H.R. 1424 was introduced on March 9, 2007, has 264 bi-partisan co-sponsors and has been referred to the House Education and Labor, Energy and Commerce, and Ways and Means Committees for review. Speaker of the House Nancy Pelosi has said that committees with jurisdiction would take action on the bill this month. The Senate version of the bill, S. 558, has been approved by the Senate Health, Education, Labor and Pensions (HELP) Committee and is awaiting review by the full Senate.

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“Saving Kids from Dangerous Drugs Act of 2007” Introduced in Senate

On April 25, 2007, Senators Dianne Feinstein (D-CA) and Chuck Grassley (R-IA) introduced S.1211, legislation to amend the Controlled Substances Act to provide enhanced penalties for marketing controlled substances to minors. Senator Tim Johnson (D-SD) is also a co-sponsor. The “Saving Kids from Dangerous Drugs Act of 2007” would amend the section of the Controlled Substances Act that prohibits the distribution of a controlled substance by an individual who is eighteen to a person under twenty-one years of age to include a person who “manufactures, creates, distributes, or possesses with intent to distribute a controlled substance that is flavored, colored, packaged, or otherwise altered in a way that is designed to make that controlled substance more appealing to a person under twenty-one years of age, or who attempts or conspires to do so.” The bill was referred to the Committee on the Judiciary where it awaits review.

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House Judiciary Subcommittee Conducts Hearing on Employer Access to Criminal Background Checks; Witnesses Cite Need for Greater Accuracy and Guidance to Employers on Hiring People with Criminal Records

On April 26th, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing entitled, “Employer Access to Criminal Background Checks: The Need for Efficiency and Accuracy.” The hearing was led by Subcommittee Chairman Bobby Scott (D-VA) and Ranking Member Randy Forbes (R-VA). Subcommittee members participating in the hearing included: Representatives Howard Coble (R-NC), Dan Lungren (R-CA), Hank Johnson (D-GA), Steve Chabot (R-OH), Sheila Jackson Lee (D-TX) and Louie Gohmert (R-TX). Witnesses providing testimony to the Subcommittee were: Mr. Frank Campbell, Deputy Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice (DOJ); Mr. Floyd Clarke, Vice President of Corporate Compliance at Mac Andrews & Forbes Holdings, Inc. in Philadelphia; Mr. Robert Davis, International Vice President and National Legislative Director for the Transportation Communications International Union; Ms. Sharon Dietrich, Managing Attorney for Employment and Public Benefits at Community Legal Services in Philadelphia; Mr. Maurice Emsellem of the National Employment Law Project in Oakland, California; and Mr. Ronald P. Hawley, Executive Director of SEARCH, the National Consortium for Justice Information and Statistics in Sacramento, California.

Chairman Scott began by talking about the significant impact of expanded access to criminal records by employers. In particular, Chairman Scott expressed his concern that employer access to criminal records could hurt current and potential employees with minor or old criminal histories. In addition, Chairman Scott cited the large number of inaccurate and incomplete criminal histories in the FBI criminal database and emphasized that improvements need to be made. Subcommittee Ranking Member Forbes also expressed his concerns about accuracy and spoke about how the FBI, the agency that is charged with maintaining the information in the criminal history database, often fails to verify accuracy of the criminal records. Referring to the Attorney General’s recent recommendation that would expand access to criminal records, Congressman Forbes expressed his hesitation about taking this step before reforms are made to ensure accuracy of information. In addition, Congressman Forbes spoke about the importance of balancing employer fears of liability in hiring people with criminal records with an employee’s right to privacy and ability to secure employment. In his comments, Congressman Johnson also expressed concern with the accuracy of records and with employees being fired as a result of an inaccurate record. During the hearing, Congressman Gohmert expressed his concern about prohibiting the inclusion of arrest records in criminal history information and asserted that he believed that employers should have access to arrest records in making employment decisions.

Mr. Frank Campbell, testifying on behalf of the DOJ, spoke about the Attorney General’s Report on Criminal History Background Checks that was sent to Congress in June of 2006 and the report’s recommendations to broaden private sector access to FBI criminal history information to additional employment sectors in order to make access to FBI criminal records across the country more consistent. Mr. Campbell acknowledged concerns about employer access to incomplete and inaccurate records, and expressed that while the FBI criminal records should be accessible to employers, that there should be privacy protections and rules governing regulation of use. Mr. Campbell suggested that Congress needed to revisit the issue of use for non-criminal justice purposes of criminal histories generally to ensure that these protections would be in place. In addition, Mr. Campbell recommended changes to the Fair Credit Reporting Act, one of the federal laws governing private access to criminal records, which would provide greater uniformity and predictability in access to criminal history information among the states.

Mr. Campbell also acknowledged that reading criminal rap sheets can be confusing for untrained individuals and suggested that employers could receive some sort of training that would help them to read and understand rap sheets as well as giving additional guidance to make employment decisions. In addition, Mr. Campbell stated that providing FBI criminal history information to private employers should not undermine the reentry policies that state and federal consumer reporting laws promote that seek to limit the kinds of criminal record information made available by consumer reporting agencies. Further, Mr. Campbell stated that criminal record screening should be done in accordance with consumer reporting laws and should be done to respect the limits those laws place on the dissemination of certain criminal histories for use in employment decisions.

Mr. Robert Davis of the Transportation Communications International Union (TCIU) spoke about recent changes within the railroad industry that implemented a program requiring its contractors to conduct background checks, including the criminal background, of their employees. As a result, Mr. Davis explained, two employees lost several weeks of employment, and one has permanently lost employment. In addition, Mr. Davis stated, although these employees had criminal records, each of these individuals had disclosed these records at the time they were hired and had worked for the railroad company for several years without incident. Mr. Davis expressed his concern that redress had not been available to these individuals and that these employees hadn’t been given adequate information about why they were fired or lost a period of employment, and recommended legislation that would require disclosure of this information to employees, a waiver process and the consideration of mitigating circumstances.

Ms. Sharon Dietrich of Community Legal Services in Philadelphia, spoke about her work representing individuals who had been fired or not hired as a result of their criminal histories. Ms. Dietrich reinforced the concerns voiced by Chairman Scott and Ranking Member Forbes about how old and minor convictions often serve as a barrier to employment. Mr. Maurice Emsellem of the National Employment Law Project in Oakland, California echoed these concerns and argued that standards are needed to protect workers with criminal records. Mr. Emsellem offered a number of legislative and regulatory recommendations to the Subcommittee, including precluding non-serious offenses from the FBI rap sheets, enforcing and improving existing regulations requiring updated rap sheets, and providing workers with a copy of the FBI rap sheet before an adverse action.

Mr. Ronald Hawley, Executive Director of SEARCH, spoke about his organization’s goal of balancing the individual’s right to privacy with society’s need for criminal history information. While stating that his organization had not taken a position on the recently released Attorney General’s report, Mr. Hawley spoke in support of the conversation and issues that the report raised. In addition, Mr. Hawley spoke about the need for Congress to continue to give guidance on the issue of employer access to criminal history records through the National Criminal History Improvement Program.

Mr. Floyd Clarke, Vice President of Corporate Compliance at Mac Andrews & Forbes Holdings, Inc., the largest American-owned security officer services company spoke about how, as part of the Intelligence Reform and Terrorism Prevention Act of 2004, Congress enacted the Private Security Officer Employment Authorization Act to allow private security officer firms to submit requests through the states to screen employees through the FBI’s criminal history records. Mr. Clarke expressed his company’s strong support for obtaining FBI criminal history information in a timely way and also for ensuring employee protections such as: written, informed consent of the employee; the opportunity for the employee to review the information received; the inclusion of specific qualifying crimes, where states do not have their own standards; and enforcement of criminal penalties for misuse of the criminal history information.

Additional information about this House Judiciary Subcommittee hearing, including full witness testimony, can be found at: http://judiciary.house.gov.

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