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Entries in background checks (4)

Friday
Jun092017

Los Angeles Ensures Employees Know Their Rights. Employers, Take Notice.

Employment Defense

 

by Amy I. Huberman

818-907-3014

 

 

 

If Los Angeles was a person rather than a city, you could practically hear her telling employers, “It’s ON.

Minimum Wage Notice Los AngelesThe warning comes by way of a massive ad campaign to remind members of the working public they have certain rights regarding minimum wage and paid sick time – just in case employers fail to comply with these legal mandates. Witness the latest bus stop ads for example, in big, bold lettering, which sends a not-so-subtle reminder to Los Angeles workers. This one is right outside our offices on Ventura Boulevard in Encino:

In case you can’t read the graphics on the bus stop wall, here’s what it comes down to: As of July 1, 2017 which is less than a month away, ALL employers with workers in Los Angeles will need to increase wages. 

For employers with 25 or fewer employees, that means raising minimum hourly pay to $10.50 per hour. For companies with 26 or more employees, minimum hourly rates will increase to $12.00 per hour.

The chart below illustrates the scheduled increases through 2021 – after 2021, minimum hourly wage rates will be based on Consumer Price Index for Urban Wage Earners, according to the Los Angeles Ordinance. 

Los Angeles Minimum Wage & Sick Pay

48 Hours Paid Sick  Leave in Los Angeles

Employees who perform at least two hours of work in a particular week in the City of Los Angeles are entitled to a greater amount of paid sick leave than California law mandates, pursuant to the City of Los Angeles Paid Sick Leave ordinance. These employees must be provided with one hour of paid sick leave for every 30 hours worked, or 48 hours each year. Larger companies (26+ employees) should have begun compliance last July. This July 1st, the rules apply to employers with 25 or fewer employees as well.

Ban the Box Penalties

The Fair Chance Initiative for Hiring Ordinance (FCIHO, a/k/a Los Angeles’ “Ban the Box” initiative) has been in effect since January 22nd of this year. This means that employers may not inquire about a job candidate’s criminal history until AFTER an initial offer of employment has been made.

There are strict rules regarding the “Fair Chance Process” and withdrawing job offers, should a criminal history be discovered.  Employers should proceed with caution. Go to Hiring and Firing in Los Angeles: Fair Chance Initiative Update, for more information.

Starting July 1st of this year, fines will  be imposed on employers who violate the rules According to the city’s Administrative Fine Schedule, they amount to $500 for the first violation, $1,000 for the second, and $2,000 for the third and subsequent violations.

These are the current rules specific to employers in Los Angeles, or employers headquartered elsewhere but have employees performing work within Los Angeles. Other cities (San Francisco comes to mind) may have stricter regulations.

Employers should follow a general rule of thumb: local laws tend to be stricter than county ordinances, which tend to be stricter than California regulations, and state regs tend to trump federal law. That isn’t always the case of course. But employers should always follow the higher standard.

Amy I. Huberman is an Employment Defense Attorney.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Feb162017

Hiring and Firing in Los Angeles: Fair Chance Initiative Update

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

We told you about Los Angeles’ Ban the Box ordinance in early December. Also known as the Fair Chance Initiative for Hiring Ordinance (FCIHO), the new regulation seeks to reduce recidivism by limiting inquiries regarding applicants’ criminal histories.

The City of Los Angeles recently posted further resources online in connection with the FCIHO. They include: 

  • Rules and Regulations for Implementing FCIHO

  • Notice to Applicants and Employees (for Private Employers or City Contractors)

  • Assessment and Reassessment Forms

  • Sample Letter: Notice to Rescind Employment Offer

  • Complaint Forms (in English and Spanish for applicants and employees) 

If you read our post in December (see link above), you know that employers must include in employment ads notice regarding compliance with the FCIHO.

Employers may not inquire about an applicant’s criminal history until AFTER an initial offer of employment has been made – in other words, not on a job application or during the interview or selection process.  If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and performs written assessment.

The Rules and Regulations suggest that the employer shall at least consider the following factors in the assessment: 

  • What is the nature and gravity of the offense? (The harm caused by the criminal conduct should be considered)

  • How much time has passed since the offense? (Convictions remote in time are less significant than similar more recent ones)

  • What is the nature of the job duties and responsibilities? (Consider the job’s essential functions and the circumstances under and the environment in which the job is performed.)

  • Is the employer looking at ONLY convictions? Arrests cannot be considered in employment decisions. 

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  The Rules and Regulations specify that if an employer relied on oral information to form a determination of Adverse Action, the employer should summarize this information by putting it in writing and maintain it with the employment records.  For example, a verbal reference check with former Employer should be documented.

Of course, certain exceptions still apply, i.e. if the employer is mandated by federal or state law to obtain information regarding conviction, especially if the position requires the use of a firearm, or if the employer is prohibited by law from hiring applicants with criminal convictions. Also, some applicants may be prohibited from holding certain positions because of their criminal histories.

Remember, fines on employers who violate the Rules and Regs of FCIHO will be imposed as of July 1, 2017.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Dec052016

Criminal Background Checks: Banning the Box in Los Angeles

Lawyer for EmployersEmployer Compliance Attorney

Employer Update 02.09.17

The City updated its website with further information and resources for both Private Employers and City Contractors, including official notices for applicants and employees, sample letters and rules for implementing the Fair Chance Initiative for Hiring Ordinance.

Please visit this City of Los Angeles webpage to access these: Ban the Box resources.

 

 

by Tal Burnovski Yeyni

818-907-3224

 

Los Angeles City is on its way to approve a new Ordinance prohibiting employers with 10 or more employees from including on any application for employment any question that seeks the disclosure of an applicant’s criminal history. The Ordinance was approved on Wednesday, November 30, 2016 and is rescheduled for a second reading on December 7, 2016 (commentators say this second hearing is merely a formality).

Los Angeles' Ban the Box

More commonly known as the Ban the Box or Fair Chance Initiative, the Ordinance aims to reduce recidivism by providing more job opportunities to those with a criminal history, from relapsing into criminal behavior.

Ban the Box’s Primary Parameters

Who May Be Held Liable? The Ordinance defines “Employer” as any “individual, firm, corporation” etc., that is located or doing business in the City and that employs 10 or more employees. The definition also includes owners, management, supervisors and employment agencies.

No Inquiry Permitted Until a Conditional Offer of Employment is Made. An employer may not, at any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant.

Notice to Employee before an Adverse Action Is Required. If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and allows the applicant an opportunity to provide information regarding the accuracy of his/her criminal history or information regarding other factors that should be considered.

These include mitigating factors or evidence of rehabilitation. The notice requirements also include preparation of written assessment and reassessment by the employer that links the aspects of the criminal history with risks inherent in the duties of the position.  

Hiring and FiringNotice Requirements in Job Posts. Any job posts or employment ads must include a statement that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of  the Los Angeles Fair Chance Initiative for Hiring.  

Additionally, employers are required to post a notice informing applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site or other location in the City under the employer’s control visited by applicants.  

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  

Exceptions. The criminal history inquiry prohibition, the assessment and reassessment requirements, and the duty to give notice to applicants in all solicitations or advertisements seeking applicants do not apply if: (1) the employer is required by law to obtain information regarding conviction; (2) the position requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, and; (4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.  

Fines for Failure to Comply Will Be Imposed This Summer. As of July 1, 2017 the City may impose fines of up to $500 for failure to (1) provide notice to applicants in solicitations or advertisements; (2) post notice in a conspicuous place; or (3) retain records as required. For any other violation of the Ordinance, the City may impose a fine of up to $500 for the first violation; up to $1,000 for the second violation and; up to $2,000 for the third and subsequent violation.  Administrative fines paid by the employer may be awarded to the applicant or employee, up to a maximum of $500 per violation.  

Approximately half of America's states have Ban the Box laws, though most, including California, currently apply only to public employers.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Mar012016

Employers: Criminal History Inquiries May Get Tricky 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Employment Background ChecksProposed Amendment to California Code of Regulations 

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions. 

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.

According to the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2012 Guidance on Criminal Background Checks, an employer's criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.

California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:  

  • Arrests or detentions not resulting in conviction;

  • Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);

  • Convictions for most marijuana possession offenses more than two years old;

  • Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8

There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.

New Rules for Background Checks?

 

The proposed amendment seeks to introduce regulation 11017.1 "Consideration of Criminal History in Employment Decisions."

It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9).  It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco's Fair Chance Ordinance.)    

Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:

"Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions ... may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin." 

Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity 

  • The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.  In order to establish the "job-related and business necessity" criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:

a. The nature and gravity of the offense or conduct;

b. The time that has passed since the offense or conduct and/or completion of the sentence; and

c. The nature of the job held or sought 

  • Demonstrating that the policy is appropriately tailored to the job requires the employer to:

a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the position; or

b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

  • Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.  

  • Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate.  If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision. 

But that's not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice  – such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.

Hearing, "Sentencing" & Bottom Line for Employers

 

The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.  

If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.    

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120