California Ban-the-Box Update

November 27th, 2017

A few years ago, California adopted ban-the-box for government employees. With the passage and signing of Assembly Bill No 1008, Ban-the-Box (which becomes effective January 1, 2018) now applies to all employers in the State of California with 5 or more employees.
Under the new legislation, employers may ONLY seek criminal records after a conditional offer of employment has been made. They cannot ask the applicant or inquire from others (such as a background screening firm) before that time.  
The law also incorporates existing California restrictions regarding the following:

1. Arrests/charges without convictions.

2. Referral to a pretrial/post-trial diversion program.

3. Sealed, expunged or eradicated convictions.

Like the local ordinances adopted in Los Angeles, New York, and San Francisco, AB 1008 mandates that employers follow a “fair chance” process before denying employment based on an applicant’s conviction history.

Some additional exceptions and exclusions do exist in the law and employer obligations, notice and action requirements are also outlined.

This law does not supersede any local law. Therefore Los Angeles, San Francisco, etc. requirements are still in force.

Take Away:

Employers with five or more employees should: 1) review all employment forms and procedures for direct or indirect inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment, and 2) establish procedures to follow a “fair chance” process before denying employment based on an applicant’s conviction history.

Resources: 

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008

https://www.lexology.com/library/detail.aspx?g=02f9e21e-c430-404b-8d88-f4310ad1d655

https://www.hrdive.com/news/california-bans-the-box-outlaws-salary-history-questions/507340/

www.CRAHelpDesk.com

 

California Consideration of Criminal History in Employment Decisions Regulations

July 11th, 2017

California Consideration of Criminal History in Employment Decisions Regulations

 

New regulations issued by the California Department of Fair Housing and Employment became effective July 1, 2017 specifying that the pre-adverse action notice now required must identify the criminal record(s) that may result in the adverse action. (However, the regulations do not state exactly how this identification is to be done.) 

This signals an attitude/priority shift in the Department toward the issue of reintegration of those with criminal records into the work place. (Approximately 10% of the United States population has a criminal record and in some areas of the inner cities that percentage jumps to 75%.)

The regulations outline the very difficult issue of adverse action discrimination – the process that results in unintentional discrimination. The employer must be able to justify that a hiring policy is necessary for the job, not just the employer’s preference. Any alternatives must be considered.

The courts to date have been sympathetic to empoyer decisions so long as employers do not have a “no conviction rule” and the convictions selected by the employer seem to have a relationship to the job. 

The regulations also acknowledge that some laws, state and federal, prohibit the hiring of people with certain convictions.

Take Away: Every hiring criteria must be justified as job related. Because some hiring criteria will adversely affect minority groups, in the adverse action analysis the employer should ask whether there are less discriminatory alternatives that will achieve the same results. In other words: Hiring criteria → adverse impact → necessary for job → any alternatives → decision.

 

Resources:

www.dfeh.ca.gov/fehcouncil/

www.CRAHelpDesk.com

State and Local Restrictions on Obtaining Salary History

June 20th, 2017

State and Local Restrictions on Obtaining Salary History

Recent legal enactments have begun to restrict employer inquiries regarding an applicant’s salary/wage history. 

Many recent legal enactments have determined that it is an unlawful discriminatory practice for a firm, or an agent thereof, to ask about, or make a statement for the purpose of determining, the salary history of an applicant or to rely on the salary history, benefits or other compensation for such applicant, including during the negotiation of a contract.

While the focus has been on income disparity for women, these restrictions apply to all applicants regardless of gender, race, etc. 

Traditionally, enactments were made by various states (such as Massachusettes and California), but now legislative action is also at the municipal level (such as New York City NY and Philadelphia PA).  Monitoring major cities is complex, but effectively monitoring smaller municipalities is nearly impossible.  (The enactment of such laws by small cities and towns will have minimal to no news coverage that such an ordinance has been enacted.)

Take Away: A Matter of Fact no longer requests/verifies salary information on Employment Verification Reports.

Resources:

https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-salary-history.aspx

 

Los Angeles Fair Chance Notice

June 20th, 2017

Los Angeles Fair Chance Initiative for Hiring Notice

City contractors or private employers in the City of Los Angeles with 10 or more employees are now subject to new restrictions on how to deal with job applicant’s criminal histories.

The Los Angeles law, while limiting an employer’s ability to inquire about criminal history on the employment application, also mandates affirmative procedures for employer compliance, including a requirement that employers conduct the same eight-factor individualized assessment that the Equal Employment Opportunity Commission (EEOC) recommends employers consider before making adverse employment decisions based on an individual’s arrest or conviction history.

Take Away: Companies with Los Angeles-based employees or contractors should assess whether they are covered by the law, and if so, whether to revise their applications, offer letters, background check forms and notices, guidelines and documentation for the hiring process.

The Los Angeles Fair Chance Initiative for Hiring Notice is now included in A Matter of Fact’s sample Disclosure Acknowledgment and Authorization forms.

Resources:

https://www.littler.com/publication-press/publication/city-los-angeles-mayor-sign-long-awaited-%E2%80%9Cban-box%E2%80%9D-law

 

Utah Division of Motor Vehicles Requirement

January 10th, 2017

Utah Division of Motor Vehicles Requires Organization Identification Number

The Utah Division of Motor Vehicles is releasing a new Motor Vehicle Report and Driver Monitoring Service. The new service ensures proper MVR compliance for all vendors, sub-vendors and customers; as well as offering enhancements such as Medical Certification support for employers. As a part of the transition to the service, Utah DMV requires all vendors and their perspective customers to register for a Utah Organization Identification Number or ORG ID and to select their desired Vendor.

You may request Utah Organization Identification Number registration instructions from A Matter of Fact. The instructions will guide you through the registration process. The registration process must be completed by all customers in order to utilize the UT MVR service.

During the registration process, you will be asked to select a vendor and provide a Vendor ID.

Take Away: Utah Organization Identification Number registration process must be completed by all customers in order to utilize the UT MVR service.

Request Utah Organization Identification Number registration instructions from A Matter of Fact. The instructions will guide you through the registration process. During the registration process, you will be asked to select a vendor and provide a Vendor ID. This can be obtained from A Matter of Fact.

Resources:

A Matter of Fact Phone: 530-346-6626, 800-957-3272 or email  information@amof.info

Utah.gov Phone: 877-988-3468 or email   support@utah.gov

 

Recent “Ban-the-Box” Legislation

January 10th, 2017

According to the National Employment Law Project, “ban the box” laws are in place in more than 24 states and 150 cities and counties. Some of the more recent include:

Portland Oregon Ban-the-Box 

Portland has joined other cities in passing their own ordinance restricting the consideration of a criminal record. These restrictions go beyond the restrictions already in place per the Oregon ban-the-box state law.

Employers cannot inquire about or access criminal record information prior to a conditional job offer.

The follow also cannot be considered by an employer:

  •  • Arrests not resulting in a conviction.
  •  • Expunged and “voided” convictions.
  •  • Deferred adjudications, except for crimes of physical harm or attempted physical harm to another person.

Individual assessment is also required, but it only entails the 3 classic considerations – seriousness of the offense, how long ago it occurred and its relationship to the job.

In addition, the employer must send a notice to the applicant that he/she did not get the job due to the criminal record and provide a copy of the record(s) in question that resulted in the decision not to hire.

Law was effective July 1, 2016.

Missouri Ban the Box 

Democratic Gov. Jay Nixon has signed an executive order that directs state departments, boards and commissions under the executive branch to strip questions about criminal history from the job applications prospective workers first fill out.

Philadelphia Ban the Box 

Philadelphia has amended its Ban-the-Box ordinance: Chapter 9-3500 of the Philadelphia Code. These changes were effective as of March 14, 2016. The following are bullet points regarding the changes in this ordinance.

  •  • The prior law restricted inquires into the criminal history of an applicant until after the first interview.
  •  • Prior law covered employers with 10 or more employees. The new ordinance covers all employers within the city of Philadelphia regardless of size.
  •  • An employer cannot ask whether an applicant is willing to submit to a background check prior to a conditional offer of employment.
  •  • The disclosure notice that criminal records will be sought must contain a statement such as: “consideration of a criminal record will be tailored to the requirements of the job”.
  •  • The ordinance now outlines, much like New York City, what factors must be considered by the employer when assessing the criminal record of the applicant. These are: (a) the nature of the offense; (b) the time that has passed since the offense; (c) the applicant’s employment history before and after the offense and any period of incarceration; (d) the particular duties of the job being sought; (e) any character or employment references provided by the applicant; and (f) any evidence of applicant’s rehabilitation since the conviction.
  •  • Employers may only consider convictions or release from confinement within the last seven (7) years.
  •  • Notice of rejection. The ordinance uses confusing language regarding whether this is intended to be a pre-adverse action or adverse action notice, but it would seem that this is intended to be part of the pre-adverse action notice because the ordinance requires that the applicant be informed that he/she be allowed ten (10) days to provide evidence of inaccuracy of the information or provide an explanation. The notice, like the FCRA, requires a copy of the report be provided to the applicant with the notice.
  •  • Right to sue.  The ordinance now permits private lawsuits for the violation of this ordinance if the individual follows the required administrative steps.
  •  • Posting notice. The Philadelphia Commission on Human Relations will create a notice of rights which each employer must post at their place(s) of employment.

Take Away: Due to the proliferation of “ban-the-box” laws, employers may want to conduct a broader (and privileged) assessment to strengthen their compliance with federal, state and local employment laws which regulate use of an individual’s criminal history. Suggested action items are as follows:

  • Review impacted job advertisements for impermissible language regarding criminal records.
  • Review job applications, including applications embedded within applicant tracking systems, and related forms for impermissible inquiries regarding criminal records.
  • Provide training and FAQs to employees who conduct job interviews and make or influence hiring and personnel decisions to explain permissible and impermissible inquiries into, and uses of, criminal records, and convey protocols for storing such records and documenting related hiring and personnel decisions.
  • Review the hiring process to ensure compliance, including the timing of criminal background checks etc, the distribution of mandatory notices, and the application of mandatory deferral periods.

Resources:

http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/

 

Massachusetts Pay Equity Act – Senate Bill No. 2119

January 10th, 2017

Massachusetts is the first state to enact a law prohibiting an employer from obtaining past salary information. This act prohibitions certain inquiries of the applicant and past employers regarding:

1) past wage/salary history;

2) past benefits;

3) any other past component of compensation.

The Act will become effective on July 1, 2018 giving employers time to evaluate their pay practices and make necessary changes to comply with the law.

Similar measures are being considered in California and New York.

Take Away:

  •  • Review job applications, including applications embedded within applicant tracking systems, and related forms for impermissible inquiries regarding salary.
  •  • Provide training and FAQs to employees who conduct job interviews and make or influence hiring and personnel decisions to explain permissible and impermissible inquiries into, and uses of, salary records, and convey protocols for storing such records and documenting related hiring and personnel decisions.

Resources:

http://www.mass.gov/governor/press-office/press-releases/fy2017/governor-baker-signs-bipartisan-pay-equity-legislation.html

https://www.fisherphillips.com/resources-alerts-pay-equity-becomes-law-in-massachusetts

New York City “Ban-the-Box” Law

November 2nd, 2015

As of October 27, 2015 New York City has joined cities and states across the country by enacting a ban-the-box law. Read the rest of this entry »

New Jersey “Ban-the-Box” Law Applies to Private Employers

September 3rd, 2014

Effective March 1, 2015 most employers with 15 or more employees are restricted as to when they inquire into a job applicant’s criminal history record Read the rest of this entry »

Oklahoma and Louisiana Pass Social Media Privacy Laws

June 23rd, 2014

Oklahoma and Louisiana are the latest states to restrict employer requests for access to personal internet accounts. Read the rest of this entry »