“Ban the Box” Update: St. Louis Enacts Ordinance; California and Hawaii Expand Existing Laws

Under the St. Louis ban the box Ordinance (the “Ordinance”), which takes effect January 1, 2021, employers in St. Louis with 10 or more employees may not:

  1. Base a decision to hire or promote on an applicant’s criminal history, “unless the employer can demonstrate that the employment-related decision is based on all information available including the frequency, recentness and severity of the criminal history and the history is reasonably related to or bears upon the duties and responsibilities of the job position;”
  2. Inquire about a job applicant’s criminal history until after the employer has determined that the applicant is otherwise qualified for the job position, and interviewed the applicant, “except that such an inquiry may be made of all job applicants who are in the final selection pool from which the position will be filled;”
  3. Publish job advertisements, including electronically, that exclude applicants on the basis of criminal history;
  4. Include statements on job applications and other hiring forms, including electronic documents, that exclude applicants on the basis of criminal history;
  5. Inquire into, or require applicants to disclose their criminal history on initial job applications and other hiring forms, including electronic documents; and
  6. “Seek to obtain publicly available information” concerning job applicants’ criminal history.

With respect to prohibition Nos. 3 through 6, the Ordinance creates an exception where federal, state, or local law prohibits the employer from hiring an individual with a certain criminal history.

California

The California Fair Chance Act (“CFCA”) makes it an unlawful employment practice for an employer with five or more employees to include on an application for employment any question that seeks the disclosure of an applicant’s conviction history, or to inquire into or consider the conviction history of an applicant, until that applicant has received a conditional offer of employment. Additionally, the Act requires employers to: (a) make individualized assessments as to whether the conviction history has a direct adverse relationship with the specific duties of the job; and (b) provide notice under a specific procedure to employees if they intend to deny employment based on the conviction history.

Among other changes, new regulations promulgated by the California Fair Employment and Housing Council, effective October 1, 2020, expand the definition of an “applicant” to include individuals who begin work upon receiving a conditional offer of employment but before the employer has conducted or completed a criminal background check.  Ostensibly prompted by the delay some employers are encountering in obtaining relevant criminal history information due to the COVID-19 pandemic, the new rule ensures that individuals working pursuant to a conditional job offer still enjoy the protections afforded by the CFCA to “applicants.”

Also of note, the California Department of Fair Employment and Housing recently issued Frequently Asked Questions concerning the CFCA, detailing employers’ obligations under the law and providing guidance on how employers may conduct a compliant criminal background check.

Hawaii

Hawaii, which was one of the first states to create a “ban the box” law, recently added a notable amendment to the law. Effective September 15, 2020, SB 2193 prevents most private sector employers from considering felony convictions older than seven years, and misdemeanor convictions older than five years, reducing the look-back period from 10 years.

Other 2020 “Ban the Box” Developments

Maryland: As we previously reported, Maryland’s “ban the box” law, effective February 29, 2020, prohibits private employers with fifteen or more full-time employees from asking job applicants to disclose any criminal records or criminal accusations prior to the first in-person interview.

Virginia: Effective July 1, 2020, a new law that decriminalizes simple possession of marijuana also contains a “ban the box” provision prohibiting employers from requiring job applicants to disclose information concerning criminal charges, arrests, or convictions for simple possession of marijuana.

Suffolk County, New York: As we discuss here, effective August 25, 2020, Suffolk County employers with fifteen or more employees are prohibited from inquiring about a job applicant’s criminal convictions during the application process or before a first interview.

Waterloo, Iowa: Effective July 1, 2020, a new City ordinance prohibits employers with fifteen or more employees within the City of Waterloo from, among other acts, requiring applicants to disclose arrests, convictions, or pending criminal charges during the application process, including, but not limited to, any interview.  An employer, however, may “discuss” such information with an applicant if the applicant voluntarily discloses it.

*                            *                                  *

Employers covered by a “ban the box” law in one or more of the jurisdictions discussed above should review and, if necessary, update their policies and procedures, including job advertisements, applications, and other hiring (and where relevant, promotion) forms to ensure they are compliant with all applicable mandates.  Employers should also consider training personnel involved in the hiring process, particularly recruiters, human resources personnel, and those tasked with interviewing applicants and conducting criminal background checks.


©2020 Epstein Becker & Green, P.C. All rights reserved.
For more articles on labor law, visit the National Law Review Labor & Employment section.

Los Angeles Enacts ‘Ban the Box’ Legislation

ban the box Los AngelesLos Angeles is the latest in a growing list of jurisdictions to adopt an ordinance restricting employers from asking a job applicant about his or her criminal history during the application process also known as “Ban the Box”. Under the Ordinance, private employers with at least 10 employees will be barred from inquiring about a job applicant’s criminal history until a conditional offer of employment has been made.

The “Los Angeles Fair Chance Initiative for Hiring (Ban the Box),” signed by Mayor Eric Garcetti on December 9, 2016, goes into effect on January 22, 2017.

Los Angeles has taken a different approach than San Francisco, the other California city to have adopted a “ban the box” ordinance affecting private employers. For example, the San Francisco ordinance, enacted in 2014, restricts questions about applicants’ criminal records on applications for employment and generally prohibits any type of criminal history inquiry until after the initial job interview. (For details, see our article, San Francisco Enacts ‘Ban the Box’ Law.) The Los Angeles ordinance prohibits employers from inquiring about criminal histories until a conditional job offer has been made.

Applicant

An applicant for employment is broadly construed to include any individual who submits an application or other documentation for employment for work performed in the City, whether for full- or part-time work, contracted work, contingent work, work on commission, temporary or seasonal work, or work through an employment agency. It also includes any form of vocational or educational training, with or without pay.

Employer

An employer is defined as any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization that is located or doing business in the City and employs at least 10 employees.

The Ordinance does not apply to the City of Los Angeles or another local, state, or federal government unit.

Prohibitions

Under the Ordinance, employers are prohibited specifically from inquiring into or seeking a job applicant’s criminal history before a conditional offer has been made. This broadly precludes employers from:

  1. asking any question on a job application about an applicant’s criminal history;

  2. asking about or requiring disclosure of the applicant’s criminal history during a job interview; or

  3. independently searching the internet for criminal conviction information or running a criminal background check before a conditional offer of employment has been made.

Criminal history is defined as information regarding any felony or misdemeanor conviction from any jurisdiction for which the person was placed on probation, fined, imprisoned, or paroled.

Exceptions

The four common-sense exceptions to the prohibitions are where:

  1. an employer is required by law to run a criminal background check on an applicant to obtain information on an applicant’s conviction;

  2. the job sought requires the possession or use of a gun;

  3. a person who has been convicted of a crime is prohibited by law from holding the position sought; and

  4. an employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Fair Chance Process

If, after a conditional offer of employment has been made, an employer enquires into an applicant’s criminal history and determines the information warrants an adverse action, it must follow a “Fair Chance Process.”

Prior to taking any adverse action against an applicant, the employer must:

  1. perform a “written assessment” that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position sought. In performing the assessment, an employer must “at a minimum,” consider the factors identified by the Equal Employment Opportunity Commission (e.g., conduct an individualized assessment) and follow any rules and regulations that may be issued by the Designated Administrative Agency (“DAA”) responsible for enforcement;

  2. provide the applicant with written notification of the proposed action, a copy of the written assessment, and any other information or documentation supporting the employer’s proposed adverse action;

  3. wait at least five business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the employment position; and

  4. if the applicant provides the employer with any information or documentation pursuant to the Fair Chance Process, the employer must consider that information and perform a “written reassessment” of the proposed adverse action. If the employer still elects to take the adverse action after such reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

Employers using a consumer reporting agency to conduct their criminal background checks, should proceed with the Fair Chance Process concurrently with the pre-adverse and adverse action requirements of both federal and state Fair Credit Reporting Act laws.

Recordkeeping, Notice

Employers must retain documents related to applicants’ employment applications and any written assessment and reassessment performed for three years.

The Ordinance’s notice and posting requirements provide that employers must state in all job advertisements and solicitations for employment that they will consider for employment qualified applicants with criminal histories “in a manner consistent with the requirements of this [Ordinance].”

To notify applicants of the Ordinance, an employer must post a notice about the law in a conspicuous place at every workplace, job site, or other City location under the employer’s control and visited by applicants. In addition, a copy of the notice must be sent to the appropriate labor unions.

Retaliation

The Ordinance makes it unlawful for an employer to take any adverse employment action against any employee for complaining to the City about the employer’s compliance or anticipated compliance with the Ordinance, for opposing any practice made unlawful by the Ordinance, for participating in proceedings related to this Ordinance, or for seeking to enforce or assert his or her rights under the Ordinance.

Civil and Administrative Enforcement

The law allows an individual to bring a civil action for violation of the Ordinance. However, as a prerequisite to pursuing a civil action against an employer, the individual first must report an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration) within one year of the alleged violation.

Beginning July 1, 2017, the DAA may fine employers up to $500 for the first violation, up to $1,000 for the second, and up to $2,000 for the third and subsequent violations of the law. However, fines for violations of the record-retention and notice and posting requirements are capped at $500 for each violation. Prior to July 1, 2017, the DAA will not issue any monetary penalties. Instead, it will issue written warnings to employers that violate the Ordinance.

A civil lawsuit may be brought against the employer, but only after the alleged violation has been reported to the designated administrative agency and the administrative enforcement process has been completed or a hearing officer’s decision has been rendered, whichever is later. The DAA still needs to establish rules governing the administrative process for investigation and enforcement of alleged violations.

All covered Los Angeles employers should communicate and train their managers who are involved in the hiring process about the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance and take steps to ensure compliance with its restrictions

Jackson Lewis P.C. © 2016

Banning Salary History Questions, Subway Restaurant Partners with DOL, Non-Competes: Employment Law This Week – August 15, 2016 [VIDEO]

Massachusetts Bans Salary History Question

Subway, DOL, Pay EquityOur top story: Beginning in 2018, pay history will be off limits for Massachusetts job applications and interviews. In a unique attempt to close the gender wage gap, the state has passed a pay equity law that will bar employers from asking applicants about their previous salaries. Employers will also be prohibited from seeking that information from an applicant’s prior employers. While this provision is the first of its kind in the country, the new law also contains more common equal pay protections, broadens the definition of “equal work,” and prevents employers from banning the discussion of salary among employees. Mickey Neuhauser, from Epstein Becker Green, has more.

“The hope is that by taking the salary history question off the table, employers will rely only on relevant factors and won’t even unconsciously rely upon an irrelevant factor, such as the employee’s prior salary. . . . The law does not prohibit applicants from disclosing their current salaries or salary history, and it doesn’t prevent applicants and employers from negotiating over salary. However, the law does not protect employers from paying a salary lower than what would otherwise be permitted under the act simply because an individual has agreed to accept that salary. In other words, an employee cannot agree to be illegally underpaid.”

Subway Partners with the DOL

The U.S. Department of Labor (DOL) and Subway teamed up to break new ground. The world’s largest fast-food franchisor has reached a voluntary agreement with the DOL to provide wage and hour compliance training to franchisees. The agency conducted more 800 investigations into underpayment of workers at Subway franchises in recent years. This partnership will focus on helping the franchises comply with federal wage and hour laws moving forward. While the DOL hopes to enter into more agreements like this one, franchisors are hesitant, noting that the deal could make them joint employers under the National Labor Relations Board’s standard.

New York Attorney General Cracks Down on Non-Competes

New York’s crackdown on non-compete agreements continues. An investigation by New York Attorney General Eric Schneiderman revealed that Examination Management Services Inc. required all of its workers, even those who had no access to trade secrets or sensitive information, to sign non-compete agreements. Non-compete agreements in the state are usually permissible only for employees with a high level of access to trade secrets or sensitive information. Under the agreement, the company will stop using the non-competes for most employees in New York.

Citigroup Unit Pays Misclassified Workers After DOL Probe

A Citigroup affiliate shells out a hefty sum for misclassifying workers. A subsidiary of Citigroup in Florida recently paid almost $2 million to workers whom it had misclassified as exempt from overtime pay. An investigation by the DOL’s Wage and Hour Division found that the company mistakenly applied the Fair Labor Standards Act’s exemption to a group of 882 employees. This case serves as a reminder that salaried workers are not necessarily exempt from overtime.

Tip of the Week

Lisa Glass, Chief Human Resources Officer for The Child Center of NY, is here with advice on how to create an effective onboarding program.

“An important way organizations can help combat employee turnover and help employees adjust to the new organization is through an effective onboarding program. An onboarding program allows employees to understand the expectations of their role in terms of performance as well as social expectations. . . . Effective onboarding is key in creating employee expectations and sharing organization values. The goals must align with the goals of the organization, and the program initiative must be driven by senior management, and not solely driven by human resources.”

©2016 Epstein Becker & Green, P.C. All rights reserved.

New York City Mayor Signs “Ban the Box” Law

Mayor Bill DeBlasio signed a bill (Int. No. 318) that amends the New York City Human Rights Law (“NYCHRL”) to further restrict employers (with four or more employees) from inquiring into or otherwise considering an applicant’s or employee’s criminal history in employment decisions.  The new NYC law will take effect on October 27, 2015.

As we detailed in our prior post, the new NYC law prohibits employers from asking about criminal history on an initial employment application (“ban the box”) and at any time prior to extending a conditional offer of employment.  The new NYC law also forbids employers from stating on any job advertisement or other solicitation or publication that employment is conditioned or limited based on an applicant’s arrest or conviction history.

For years, before an NYC employer could take adverse action on the basis of criminal history, it had to first engage in a multi-factor analysis under Article 23-A of the New York State Correction Law to determine whether a sufficient nexus exists between the offense and position sought.  Now, under the new NYC law, before taking adverse action the employer also must:

  • furnish a written copy of the criminal history inquiry to the applicant in a form determined by the New York City Commission on Human Rights (“NYCCHR”);

  • provide a written Article 23-A analysis to the applicant in a form determined by the NYCCHR, together with “supporting documents” setting forth the basis and reasons for the adverse action; and

  • after providing the applicant with the required documentation, allow him or her at least three business days to respond and, during that time, hold the position open for the applicant.

To redress violations of the new NYC law, aggrieved applicants and employees may file a complaint with the NYCCHR or in court, with the promise of lucrative remedies under the NYCHRL.

The new NYC law does not apply where the employer must take action pursuant to any federal, state, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history.  For purposes of this exception, “federal law” includes the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act of 1934 (like FINRA).  The new NYC law also excepts various public employment positions.

NYC now joins a growing number of jurisdictions across the nation that have “banned the box” and otherwise regulated employer use of criminal history in hiring and other personnel decisions.  To ensure compliance with the new NYC law, employers should start to review and, where necessary, make changes to their background check procedures and forms.

New York City Council Passes Ban-the-Box Legislation

Joining many other jurisdictions, the New York City Council has passed the Fair Chance Act, an ordinance restricting when employer inquiries about applicants’ criminal histories may be made during the application process and imposing significant obligations on employers who intend to take action based on such information.

The Council passed the ordinance on June 10, 2015. The ordinance will become effective 120 days after receiving Mayor Bill de Blasio’s signature, which is expected shortly, as the Mayor has expressed support for the legislation.

Like other ban-the-box laws, the ordinance generally prohibits an employer with at least four employees from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended. Limited exceptions are provided.

Under the ordinance’s definition of inquiry, employers are prohibited not only from asking an applicant prohibited questions — verbally or in writing — but also are prohibited from searching publicly available sources to obtain information about an applicant’s criminal history.

Exceptions

The main exception applies when an employer, under applicable federal, state, or local law, is required to conduct criminal background checks for employment purposes or to bar employment in a particular position based on criminal history.

Other exceptions remove prospective police officers, peace officers, and law enforcement agency and other law-enforcement-related employees from coverage. Therefore, these are unlikely to affect positions and employers in the private sector.

Notification Process

Employers who make inquiries into an applicant’s criminal history after a conditional offer of employment has been extended and determine that the information warrants an adverse employment action must follow a rigorous process. Specifically, employers must:

  1. Provide the applicant with a “written copy of the inquiry” which complies with the City’s Commission on Human Right’s required (but not-yet-issued) format;

  2. Perform the analysis required by Article 23(a) of the New York Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”;

  3. Provide the applicant with a copy of its analysis, also in a manner which complies with the Commission’s required format, which includes supporting documents and an explanation of the employer’s decision to take an adverse employment action; and

  4. Allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.

Of course, for employers who conduct background checks through consumer reporting agencies, if such information is obtained from a background check, the above process must be integrated with the Fair Credit Reporting Act (FCRA) pre-adverse action requirements.

Supporters view the ordinance as ending discrimination against applicants with low-level arrests and providing assurance that applicants will be considered solely based on their qualifications. Critics see the ordinance as adding to the already-onerous mandates imposed on employers in New York City by favoring ideology over practicality, sending a bad message to employers doing business — or desiring to do business — in New York City.

The one undeniable fact is that all covered New York City employers must develop measures to ensure compliance with the ordinance.

Jackson Lewis P.C. © 2015

President Obama Urged to “Ban the Box” for Federal Contractors

Proskauer Rose LLP, Law Firm

In a letter this past week, nearly 200 interest groups urged President Obama to issue an executive order “banning the box” for federal contractors and to implement other “fair chance” hiring reforms protecting ex-offenders. “Ban the box” refers to a movement that has swept across state and local legislatures in recent years requiring contractors (and employers more broadly) to remove the check box from job applications asking whether prospective employees have a criminal history.

To date, several state and local jurisdictions have “banned the box” for contractors, including California (for construction contractors), Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY) (for human services contractors), Pittsburgh (PA), and Syracuse (NY). Delaware and Madison (WI) have “encouraged” the same.

In addition, six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers (either expressly or implicitly covering government contractors).

At the federal level, the Office of Federal Contract Compliance Programs (OFCCP) also has issued a directive on criminal background checks. The Directive cautions contractors that the consideration of criminal records in hiring or other personnel decisions may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964.

If President Obama issues an executive order that “bans the box” for federal contractors, the executive action will add to an already growing patchwork of laws and orders restricting criminal background checks on job applicants and employees of government contractors. Stay tuned to see what the President decides.

ARTICLE BY

Background Checks Headline in 2014

Proskauer Law firm

In 2014, background checks were a hot topic in state and local legislatures.  Before this year, only 8 jurisdictions in the country had passed laws preventing private employers from asking job candidates about their criminal histories on an employment application (i.e., “banning the box”).  This year alone, however, 9 jurisdictions enacted ban-the-box laws covering private employers—Baltimore, Columbia (MO), Illinois, Montgomery County (MD), New Jersey, Prince George’s County (MD), Rochester (NY), San Francisco, and Washington D.C.  Louisville, Indianapolis, and Syracuse also banned the box for private employers with city contracts, while Delaware and Madison (WI) “encouraged” the same.

Man Sitting Alone in a Row of Empty Chairs

Several of these so-called “ban the box” laws also restricted the types of arrests or convictions about which employers may inquire or consider when hiring.  For example, the new San Francisco law bans inquiries about convictions that are more than seven (7) years old; the new Washington D.C. law prohibits questions about arrests and criminal accusations that are not pending or did not result in conviction; and New Jersey’s new law bars queries about expunged records.  Some of the new laws, such as those in San Francisco, Washington D.C., and Montgomery and Prince George’s Counties also imposed certain notice obligations on employers.

In addition to this state and local legislative activity, the U.S. Equal Employment Opportunity Commission (“EEOC”) continued to scrutinize employer background check procedures, though without much success.  In EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th Cir. 2014), the Sixth Circuit affirmed an award of summary judgment against the EEOC in its suit alleging that Kaplan’s use of credit checks disparately impacted African-American applicants in violation of Title VII of the Civil Rights Act of 1964.

Despite setbacks in litigation, the agency issued guidance on the use of background checks in hiring and personnel decisions. The brochure—Background Checks: What Employers Need to Know—advises employers on their existing legal obligations under federal nondiscrimination laws and the Fair Credit Reporting Act (“FCRA”) when obtaining, using, and disposing of background information.  The Federal Trade Commission also issued two brochures—Background Checks: What Job Applicants and Employees Should Know & Tips for Job Applicants and Employees—that walk applicants and employees through their rights under FCRA.

Though the primary focus on background checks this year concerned credit and criminal history, there were other noteworthy developments. The governors of California and New Jersey vetoed bills that would have greatly limited employers from considering an applicant’s unemployment status in hiring decisions.  And, Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin prohibited employers from requesting or requiring prospective and current employees to provide their passwords to their personal social media accounts.

If trends are any guide, we expect more developments in 2015.  Stay tuned.

ARTICLE BY

OF

Madison, WI Resolution Targets “Ban the Box” Legislation For City Contractors and Vendors

Proskauer Law firm

The Common Council of Madison, Wisconsin passed a resolution that prohibits the city (i) from asking questions concerning an applicant’s criminal history on the city’s initial employment applications (i.e., “banning the box”), and (ii) from conducting a criminal background check before making a conditional offer of employment to the applicant.  The resolution provides exceptions for the city’s police department and commissioned fire personnel.

While the resolution does not extend these prohibitions to city contractors and vendors at the present time, it does instruct the city to “introduce an ordinance [within the next six months] prohibiting City vendors and contractors from asking applicants about their arrest and conviction history until after a conditional offer of employment has been made.”

Given the national momentum behind the “ban the box” movement, Madison contractors and vendors should monitor the proposed ordinance as it makes its way through the Council.  To date, about a dozen cities—including Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN)Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY), and Pittsburgh (PA)—have required vendors and contractors to ban the box on their employment applications.  The State of Delaware has “encouraged” the same. Stay tuned to see if Madison is next.

ARTICLE BY

 
OF