Category: Constitutional Law

Out of Work? Out of Luck

Great posted added today at the National Law Review about the EEOC’s hearing about the impact of employers considering only those currently employed for job vacancies.  

EEOC Examines Employers’ Treatment of Unemployed Job Applicants at Hearing

WASHINGTON—In a public meeting held today, the U.S. Equal Employment Opportunity Commission (EEOC) examined the impact of employers considering only those currently employed for job vacancies.

“Throughout its 45 year history, the EEOC has identified and remedied discrimination in hiring and remains committed to ensuring job applicants are treated fairly,” said EEOC Chair Jacqueline A. Berrien. “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, Associate Professor at the University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields ranging from electronic engineers to restaurant and grocery managers to mortgage underwriters with the explicit restriction that only currently employed candidates will be considered. “Some employers may use current employment as a signal of quality job performance,” Norton testified. “But such a correlation is decidedly weak. A blanket reliance on current employment serves as a poor proxy for successful job performance.”

“The use of an individual’s current or recent unemployment status as a hiring selection device is a troubling development in the labor market,” said Fatima Goss Graves, Vice President for Education and Employment of the National Women’s Law Center. She noted that this practice “may well act as a negative counterweight” to government efforts to get people back to work. Women, particularly older women and those in non-traditional occupations, are disproportionately affected by this restriction, testified Goss Graves.

Denying jobs to the already-unemployed can also have a disproportionate effect on certain racial and ethnic minority community members, Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, explained. Unemployment rates for African-Americans, Hispanics and Native Americans are higher than those of whites. When comparing college-educated workers, the unemployment rate for Asians is also higher. Thus, restricting applications to the currently employed could place a heavier burden on people of color, he concluded.

The use of employment status to screen job applicants could also seriously impact people with disabilities, according to Joyce Bender, an expert in the employment of people with disabilities. “Given my experience, I can say without a doubt that the practice of excluding persons who are currently unemployed from applicant pools is real and can have a negative impact on persons with disabilities,” Bender told the Commission.

Dr. William Spriggs, Assistant Secretary of Labor for Policy, offered data supporting this testimony. Spriggs presented current national employment statistics showing that African-Americans and Hispanics are overrepresented among the unemployed. He also stated that excluding the unemployed would be more likely to limit opportunities for older applicants as well as persons with disabilities.

“At a moment when we all should be doing whatever we can to open up job opportunities to the unemployed, it is profoundly disturbing that the trend of deliberately excluding the jobless from work opportunities is on the rise,” said Christine Owens, Executive Director of the National Employment Law Project. In addition to presenting statistical evidence, she recounted stories unemployed workers have shared with her organization where they were told directly that they would not be considered for employment due to being unemployed.

James Urban, a partner at the Jones Day law firm, who counsels employers, expressed doubt as to the extent of the problem. Fernan Cepero, representing the Society of Human Resource Professionals, told the Commission that his organization is not aware of this practice being in regular use. But both Mr. Urban and Mr. Cepero noted that the automatic exclusion of unemployed persons from consideration does not constitute “due diligence” in the screening of job applicants.

© Copyright 2011 – U.S. Equal Employment Opportunity Commission

Georgia Voters Approve Dramatic Changes to Employment Restrictive Covenant Laws

This week’s featured blogger at the National Law Review is Jon M. Gumbel of Ogletree Deakins.  Jon writes about how this month’s elections in Georgia approved a measure which would amend the Georgia constitution to dramatically alter the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. 

The long-awaited and often debated results are in! On Tuesday, November 2, 2010, Georgia voters decided (quite convincingly) to amend the Georgia Constitution, which allowed for the previously passed House Bill 173 to become law (now O.C.G.A. §13-8-50, et seq.). This new statute dramatically alters the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. The new law became effective on November 3, 2010 and as such, is deserving of prompt attention by Georgia employers.

Until November 2, Georgia’s restrictive covenant laws were governed by published court decisions issued by a wide variety of Georgia judges and based on an even wider variety of specific factual situations, creating a somewhat muddled, very complex and highly unpredictable area of the law. Furthermore, as this case law developed over the past 60 plus years, Georgia courts applied an increased level of scrutiny to employee restrictive covenants, making Georgia one of the most difficult states in which to enforce such covenants. For example, Georgia courts previously required employers to undertake the extremely challenging task of tailoring restrictive covenants executed at the onset of the employment relationship to the employee’s post-employment competition restrictions. In addition, Georgia courts would automatically invalidate a customer non-solicitation provision upon the finding of one technical problem within a noncompete covenant and vice versa. Finally, Georgia courts would not, under any circumstances, modify an otherwise unenforceable covenant so as make it reasonable in the court’s eyes and therefore, enforceable (the “blue penciling” process).

The new statute specifically states Georgia’s new public policy favoring enforcement of these agreements and provides specific guidelines for drafting enforceable agreements. For example, the new statute expressly authorizes a more general description of prohibited, post-employment activities, thus mitigating the requirement that such covenants be narrowly tailored at the onset. The new statute eliminates the prior rules invalidating one covenant based on the unacceptable language of another separate covenant within the same contract. Perhaps, most significant is the new statute’s specific approval of blue penciling, the practice by which Georgia courts are allowed to modify and enforce an otherwise unenforceable covenant.

It is important to note that this new statute only applies to restrictive covenants executed on or after the date the statute was passed – November 2, 2010. The previous, more rigorous legal standards will still apply to agreements entered into before that date. Re-drafting restrictive covenants in line with Georgia’s new statute may be the best option for many Georgia employers. However, Georgia employers should consult with counsel to determine whether they can benefit from this new law. This is especially true when it comes to covenants contained in more complex management and executive agreements that are tied to more generous severance or other compensation plans or those associated with the sale of a business.

Update! For more recently posted information about this topic, please see:  Important Notification Regarding the Effective Date of The New Georgia Restrictive Covenant Statute

© 2010, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

About the Author:

Jon M. Gumbel has concentrated his practice in the field of management labor and employment law since 1987.  He has represented employers with respect to litigation and other employment law disputes involving race, gender, age, religious, and disability discrimination claims under Title VII, the ADEA, the ADA, the FMLA, and comparable state laws.  Jon has also represented employers with respect to their employment litigation matters involving pregnancy discrimination, breach of compensation agreements, breach of non-compete agreements, breach of fiduciary duty, joint employment, wage and hour matters, OSHA citations, and wrongful discharge laws.  Finally, Jon has represented numerous employers with respect to ERISA claims/litigation including those involving health, disability and pension claims.  404-881-1300 /www.ogletreedeakins.com

 

Public Defenders as Effective as Private Attorneys

This week’s featured blogger at the National Law Review is Tom Jacobs of Miller-McCune – who discusses a recent study done comparing the relative effectiveness of public defenders and private attorneys in the Cook County criminal court system. The research team led by Richard Hartley of the University of Texas at San Antonio came up with some interesting and somewhat startling results.  Read on:

Perhaps it’s time for someone to come to the defense of public defenders. A newly published look at Chicago-area courts finds that, when you consider the actual outcomes of judicial hearings, these underpaid and underappreciated attorneys do just as well as their private-sector counterparts.

“This study suggests that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders,” a research team led by Richard Hartley of the University of Texas at San Antonio writes in the Journal of Criminal Justice. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

The researchers examined a random sample of 2,850 offenders convicted of felonies in Cook County Circuit Court, “a large Midwestern jurisdiction which is similar to other large, urban jurisdictions in the country.” They compared cases where the defendant was represented by a private attorney or public defender, focusing on four stages of the judicial process:

  • The decision to grant bail. The researchers looked at whether bail was set rather than whether it was made, since the latter is more a function of ability to pay rather than quality of legal representation.
  • Plea-bargaining decisions. This served as a measure of whether an attorney was successful in getting the initial charge reduced.
  • Whether the defendant, once convicted, served jail time.
  • The length of sentence imposed on those convicts who were incarcerated.

“The overall results of this study generally support the idea that there is no difference between private attorneys and public defenders regarding case outcomes,” the researchers conclude. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

Two important caveats. The researchers did not look at convictions vs. acquittals. And they found that retaining a private attorney is apparently beneficial “for certain offenders and at certain stages” of the process. Specifically, they noted some interestingly varied outcomes when looking at a defendant’s race.

“White defendants are the only defendants who benefit from having a private attorney at the release decision,” they write. Specifically, they found whites with private attorneys are 2.7 times more likely than whites with public defenders to have bail granted.

For people of color, private attorneys may not help in getting bail, but they do facilitate plea bargains. “Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender,” the researchers write.

Why are public defenders so effective at representing their clients? One theory, according to Hartley, involves the “courtroom workgroup” model of justice, where the public defender, prosecutor and judge work together to dispose of cases.  He notes that when the system functions in this way, “public defenders are in better positions than private attorneys to negotiate favorable plea bargains and to mitigate punishment.”

These findings are not likely to put any law firms out of business. But given the negative media coverage of public defenders offices, they do offer some reassurance that the system is reasonably fair, even for those who can’t afford an attorney.

“This study provides evidence that contradicts the idea that you get what you pay for, at least in Cook County,” Hartley and his colleagues conclude. In Chicago courtrooms, “Public defenders are as effective as private attorneys.”

Miller-McCune © 2010 

About the Author:

Tom Jacobs is a veteran journalist with more than 20 years experience at daily newspapers. He has served as a staff writer for The Los Angeles Daily News and the Santa Barbara News-Press. His work has also appeared in The Los Angeles Times, Chicago Tribune and Ventura County Star.

TheEditor@miller-mccune.com / www.miller-mccune.com / 805-899-8620

What are the Possible Legal Implications of the Passage of California’s Proposition 19?

The National Law Review’s featured blogger Donna Bader discusses the legal implications of legalizing marijuana in California.  

As the November election approaches in California, the proponents and opponents of Proposition 19 are preparing for battle.  Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010, is an initiative to legalize certain marijuana-related activities. It purports to do the following:

  • Allow people 21 years of age or older to possess, cultivate, or transport marijuana for personal use;
  • Permit local governments to regulate and tax commercial production and sale of marijuana; 
  • Prohibit people from possessing marijuana on school grounds, using it in public, and smoking it while minors are present or providing it to anyone under 21; and
  • Maintain current prohibitions against driving a vehicle while impaired.

(See http://www.taxcannabis.org/index.php/pages/initiative/ for the text of Proposition 19.)

The findings in the initiative make fascinating reading because the initiative acknowledges that laws criminalizing cannabis have failed, millions are using it, and the percentage of citizens using it is double that of the percentage of citizens using in the Netherlands, which allows the sale of cannabis.  In essence, criminalization has had no effect on usage.  The findings also note that cannabis has fewer side effects than alcohol or cigarettes, California wastes millions in trying to enforce laws against it, and its illegality has spawned an illegal drug trade that makes over a $15 billion in California a year.  It does not ignore the fact that that money in the form of taxes and permits could then go to the cities, counties, and states.

While the initiative addressing the implementation of a “legal regulatory framework,” certain activities are left to the cities.  For instance, if a city decides not to tax and regulate the sale of cannabis, then buying and selling – not possessing and consuming – would remain illegal.  If the city decides it is willing to tax and regulate the buying and selling of cannabis, then it must implement “a strictly controlled legal system” to oversee and regulate cultivation, distribution and sales, including relating how much cannabis can be bought and sold.  It would also allow the California Legislature to adopt a “statewide regulatory system for a commercial cannabis industry.”  The initiative proposes a number of activities that a local government may regulate.  Finally, it permits amendment either by a subsequent initiative or statute “but only to further the purposes of the Act.”

The supporters of Proposition 19 seem to fall into two general camps:  The first camp includes those who would like to use cannabis and see it be available to others, possibly because they believe it to be harmless, no different than alcohol (with less damage to the body), and that the criminalizing it has not worked.  The second camp is composed of individuals who do not use cannabis and are generally not in favor of its use, but they too recognize the war on drugs and failed, and given the critical financial condition of our State, would welcome a thriving business that would put money into government coffers.

Two major questions arise from passage of Proposition 19.  The first question is what will the federal government do?  Possession of marijuana is still illegal under the federal Controlled Substances Act.  The Obama Administration has seemingly turned a blind eye to prosecuting the little guy, but passage of Proposition 19 will dramatically increase the commercial and business opportunities to produce and sell marijuana.  The bigger the business, the more attention it will receive from the DEA.  Because the proposition covers commercial production and sale, the federal government may intervene and attempt to enjoin enactment of the measure.

The second question is how will passage of Proposition 19 affect other areas  of law.  Here are just a few areas that could be affected:

  • Counties and cities will have to scramble to make decisions on where they stand and how they want to regulate cannabis under the law.
  • The impact on interstate commerce because one can easily imagine what will happen if legal marijuana is purchased here and then brought over the border into a state that forbids it.
  • Dealing with taxing authorities.
  • Attorney ethical concerns in advising a client about activities that are still considered illegal under federal law.
  • Land use issues and restrictions.
  • Anti-discrimination laws.
  • Employment laws, particularly in the areas of drug-testing and wrongful termination.
  •  Landlord-issues, including a revisions of leases and rental agreements to cover marijuana use, both personally and commercially.
  • Criminal convictions and the effect of Proposition 19 on pending criminal cases.
  • Insurance law, particularly homeowners and health insurance.
  • Impact on federal funding in specific areas touched by Proposition 19.

If the criminalization of marijuana has provided full-time for certain lawyers, then certainly the passage of Proposition 19 will present new and different opportunities for other lawyers as everyone tries to resolve the issues raised by its implementation.

© 2010 Donna Bader 

Donna Bader is a Certified Specialist in Appellate Law in Laguna Beach, California. For over thirty years, she has specialized in handling civil writs and appeals, and has written more than 350 appellate briefs. Donna is the former editor in chief of several legal publications, including Plaintiff, The Advocate, The Forum, and The Gavel. She is the author of Rutter’s Civil Litigation Guide, California Summary Judgment and Related Termination Motions. Donna is also a frequent lecturer and contributing writer for various legal organizations. Donna’s blog, AnAppealtoReason.com, is written for California trial attorneys and advises them on how they can protect their appeals at the trial court level.  949-494-7455 / www.AnAppealtoReason.com