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BEST PRACTICES FOR COMPLYING WITH NEW YORK CITY FAIR CHANCE ACT

“Given the imminent effective date of New York City’s Fair Chance Act, employers may be wondering what they need to do to comply with the law.  As many employers are aware, effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.)  The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)).  On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form, and is expected to release its enforcement guidance imminently.  In the meantime, we recommend employers consider the following:

  1. Review all pre-employment forms.  Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
  2. Train hiring managers.  Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment.  If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
  3. Revise the adverse action protocol.   The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
    1. provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
    2. conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
    3. keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.

The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR.

  1. Consider best practices for direct inquiries to the applicant.  Many employers may still wish to ask the applicant personally whether he or she has a criminal history.  Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider.  Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
  2. Review FCRA disclosure forms.  Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report.  And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.”

Originally posted by Lexology. Full article at http://www.lexology.com/library/detail.aspx?g=79e01e92-5fd0-4607-9728-fb8575f23655

EEOC GOES HOLLYWOOD: COMMISSION TO PROBE GENDER DISCRIMINATION AGAINST FEMALE DIRECTORS

“Several women directors say that they have received notices from the Equal Employment Opportunity Commission asking to set up interviews in an apparent start to an investigation over gender discrimination in Hollywood.

According to a copy of the letter obtained by Variety, the EEOC is asking directors to speak with them so that “we may learn more about the gender-related issues” they are facing in entertainment. The letter indicated that the interviews would be conducted in the month of October.

In May, the ACLU of Southern California called on the EEOC to investigate “the systemic failure to hire women directors at all levels of the film and television industry.”

They cited figures showing hiring of women directors in entertainment well behind their proportion of the population. In one of the figures cited, women made up just 7% of directors were in the 250 top grossing films in 2014, two percentage points lower than it was in 1998, according to a study from the San Diego State University Center for the Study of Women in Television & Film. According to a recent report from the Directors Guild of America, the number of TV episodes directed by women in 2014-15 was just 16%, albeit a modest gain from a year earlier.

Director Maria Giese, who made the initial inquiry with the ACLU four years ago, said that she had received an EEOC letter and was hoping to set up an interview in the coming weeks.

She has been writing about the issue on her own blog, Women Directors in Hollywood, and last month gave a speech to Hollywood Business and Professional Women in which she outlined the history of past legal efforts as well as push back she has gotten from the DGA.

Among those who also received a letter was Lori Precious, who said that she was “euphoric” that the EEOC appeared to be moving forward with an inquiry.

Although there have been efforts in the past to investigate gender discrimination in Hollywood, “the real problem is it just never turns into change,” Precious said. The EEOC also conducted a report on race and sex discrimination in Hollywood in the 1980s.

Another recipient was Melanie Wagor, who said that “everybody is ecstatic and really thankful for the ACLU and the EEOC for taking this seriously.”

A spokeswoman for the EEOC said that federal law does not allow them to confirm or deny the existence of a charge.

But she said that the “EEOC will continue to vigorously enforce Title VII’s nondiscrimination requirements. Title VII prohibits covered employers from discriminating on the basis of sex. … We also encourage the industry to publicly address the serious issues raised by the ACLU and to take proactive steps to address these issues.”

The ACLU of Southern California had been gathering anecdotal information from 50 women directors, resulting in a 15-page letter sent to the EEOC, the federal Office of Federal Contract Compliance Program and the state Department of Fair Employment and Housing.

“Women often reported the pervasive perception that hiring women directors is viewed as more ‘risky’ than hiring men; even men with less experience,” the ACLU letter stated. “This perception is particularly harmful where multiple decisionmakers must agree each time a director is hired, and each decisionmaker is wary of hiring outside the standard (male) norm.”

Among other things, the letter said that even women who have initial success are not hired consistently or their careers stall, or they are not trusted with bigger budget projects at the same rate as their male peers.

“Both research and the anecdotal evidence we gathered showed serious gender disparities in opportunities, even for women whose films debut at prestigious festivals,” the letter stated.

A spokesman for the Alliance for Motion Picture and Television Producers said they had no comment.

The letter was critical not just of studio and network hiring practices — including the reliance on lists in deciding who to hire — but also of the role of talent agencies and the DGA.

The ACLU letter concluded that the guild’s efforts to increase the hiring of women “are ineffective and some practices may perpetuate discrimination.”

The letter cited “a widespread perception that the DGA leadership did not prioritize increasing the number of women directors hired and at times expressed hostility or blocked efforts of female members to make the issue a higher priority.” Although the guild has worked with studios to create “shadowing” programs and fellowships for women directors and ethnic minorities, the ACLU letter said that many women view the programs as “condescending to women, especially where women directors are required to participate as an express or implied condition of getting work, while comparably experienced men are not.”

The DGA sued two studios, Warner Bros. and Columbia Pictures, over hiring practices in 1983, but the class-action litigation was dismissed two years later after a federal judge ruled that the guild had a conflict of interest in representing the class. Among other things, the judge, Pamela Rymer, wrote that the DGA, as the collective bargaining agent, itself faced triable questions as to whether its procedures also contributed to discrimination. What followed was an agreement between the DGA and the studios requiring employers make “good faith efforts” to hire women and minority directors and to provide a report on the sex and ethnicity of those hired.

The DGA had no comment on Tuesday.

At the time the ACLU released its letter, the DGA said in a statement that the “lack of network and studio action to hire more women and minority directors is deplorable. The DGA has been a long-standing advocate pressuring the industry to do the right thing, which is to change their hiring practices and hire more women and minority directors.”

But it said that the ACLU had made “no effort to contact the DGA concerning the issues raised in its letters. The ACLU’s assertions reflect this lack of investigation as to the Guild, and ignore its efforts to combat discrimination against women directors and to promote the employment of women directors.

“There are few issues to which the DGA is more committed than improving employment opportunities for women and minority directors, it is time for change,” the guild said.

Bonnie Eskenazi, partner at the law firm Greenberg Glusker, said that “assuming there is an investigation and there is found to be discrimination, then how do you fashion a remedy which will actually make a difference?”

“I don’t think you can solve this problem without a long-term follow up,” she said.

She believes that it is time to “think outside the box,” and said that she is at work on an idea in which a “film gender czar” would be empowered to recommend action for employers to take to improve hiring practices.

“Unless there is a central body that can be responsible for taking action, then nothing will happen,” she said.

News of the EEOC’s issuance of letters was first reported by the Los Angeles Times.”

 

Originally posted by Variety.  Article can be found at http://variety.com/2015/biz/news/eeoc-women-directors-gender-discrimination-aclu-1201611731/