“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:
- 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.
- 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.
- Revise the adverse action protocol. The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
- 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);
- 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
- 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.
- 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.
- 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
“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.
The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.
At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.
According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.
Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.
“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.
BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background
checks is to ensure the safety and well-being of all who work at the BMW plant site.
“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.
The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “
Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821
“The background-check service that ride-hailing company Uber uses to screen potential drivers did not flag the criminal records of 25 drivers who gave thousands of rides to customers in Los Angeles and San Francisco, prosecutors said Wednesday.
The findings were made public in an amendment to a consumer protection lawsuit filed last year by the district attorneys for Los Angeles and San Francisco. The suit alleges that Uber has misled customers about the safety of the app-based ride service, including how they screen potential drivers.
In the amended 62-page civil complaint, prosecutors detailed the criminal histories of 25 people who gave rides to passengers in Los Angeles and San Francisco in the last two years.
“I support technological innovation,” San Francisco Dist. Atty. George Gascón said in a prepared statement. “Innovation, however, does not give companies a license to mislead consumers about issues affecting their safety.”
The Times reported this month that four Uber drivers cited at Los Angeles International Airport had criminal records that would bar them from driving a taxi in Los Angeles.
Whether ride-hail drivers should be held to the same background-check standards as taxi drivers has been the subject of hours of testimony at Los Angeles City Hall, as lawmakers prepare to vote on a permit process that would allow Uber and its main competitor, Lyft, to pick up passengers at LAX.
Prospective Uber drivers are not required by state law to submit fingerprints as part of their background checks. The company says its background-check service identifies all criminal convictions in the last seven years.
By contrast, the Los Angeles Department of Transportation runs the prints of potential taxi drivers through federal criminal databases.
Uber and Lyft use services that can process screenings within days. They have both argued that using fingerprint checks would be redundant.
In a prepared statement, Uber spokeswoman Eva Behrend said that no background check is “100% foolproof.” Running fingerprints through state and federal databases can flag the criminal records of people who have been arrested but not convicted, “which can discriminate against minorities,” she said.
According to the amended lawsuit complaint, one driver was convicted of second-degree murder in Los Angeles and spent 26 years in prison. He gave a different name when he applied to drive for Uber, and a background report said he had no known aliases and no criminal history, the complaint said. The driver gave 1,168 rides over seven months, according to the prosecutors’ court filing.
Using fingerprints and checking federal databases would have identified the man’s criminal history, prosecutors said.
Prosecutors also said they found three unlicensed drivers who used someone else’s account to drive for Uber.
Five drivers had convictions for driving under the influence in the last seven years, the complaint said, and some still drive for Uber. The company has said it bars applicants with convictions for DUI in the preceding seven years.
Several drivers were convicted of fraud, including one driver convicted in 2010 of 29 felony counts of theft, grand theft, filing false or fraudulent real estate deeds, and money laundering, according to the complaint.”
“An Indianapolis trucking firm has agreed to pay $200,000 to settle an Equal Employment Opportunity Commission disability discrimination case, in which it was charged with requiring pre-employment medical exams.
The EEOC said Tuesday that Indianapolis-based Celadon Trucking Services Inc. violated the Americans with Disabilities Act by subjecting applicants to medical exams before making a conditional offer of employment, and discriminating against applicants based on disability or perceived disability.
The agency said that on June 30, the U.S. District Court in Indianapolis ruled that the company violated the ADA by conducting unlawful medical inquires and exams of applicants for over-the-road truck driving positions, and that in two cases, it unlawfully dismissed two class members from a driver orientation program because of their disabilities, in violation of the ADA.
In addition to paying $200,000 in damages to 23 former Celadon applicants, the settlement requires the company to train its management employees on disability discrimination, among other provisions.
“The law is clear: Celadon cannot subject applicant drivers to disability-related inquiries and medical examinations without first extending to these applicants a conditional job offer,” said Laurie A. Young, regional attorney of the EEOC’s Indianapolis district office, in a statement.
“Celadon’s policies must conform to the requirements of the ADA. We are satisfied that this settlement serves the public interest, and we are confident that the relief obtained will prevent the recurrence of this type of discrimination,” Ms. Young said.
Celadon’s attorney could not immediately be reached for comment.
Earlier this year, an Arkansas trucking firm was ordered to pay $477,399 in an EEOC disability discrimination lawsuit in which it was charged with subjecting its truck-driver workforce to overly broad medical inquiries.”
Originally posted by Business Insurance. Article can be found at http://www.businessinsurance.com/article/20150804/NEWS06/150809951/trucking-firm-to-pay-up-in-eeoc-pre-employment-exam-case?tags=%7C338%7C70%7C75%7C80%7C83%7C302
“The Securities and Exchange Commission has issued an interpretive rule clarifying that whistleblowers are protected by retaliation by employers even if they have not reported their concerns to the SEC first.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 included a section offering incentives and protections to individuals who report possible violations of the federal securities laws, including protections against employer retaliation. The SEC issued rules in 2011 spelling out how the whistleblower protections would work, but there was some ambiguity when the SEC specified how whistleblowers should report a tip to the SEC in order to qualify for a whistleblower award, and those who would be protected from employer retaliation.
In particular, questions arose over whether an employee who first reported the matter internally to their employer, such as a compliance department, would be protected from retaliation from that same employer, or only those who reported directly to the SEC.
“Our interpretation best comports with our overall goals in implementing the whistleblower program,” said the SEC in the rule it issued last week. “Specifically, by providing employment retaliation protections for individuals who report internally first to a supervisor, compliance official, or other person working for the company that has authority to investigate, discover, or terminate misconduct, our interpretive rule avoids a two-tiered structure of employment retaliation protection that might discourage some individuals from first reporting internally in appropriate circumstances and, thus, jeopardize the investor-protection and law-enforcement benefits that can result from internal reporting. Under our interpretation, an individual who reports internally and suffers employment retaliation will be no less protected than an individual who comes immediately to the Commission. Providing equivalent employment retaliation protection for both situations removes a potentially serious disincentive to internal reporting by employees in appropriate circumstances. A contrary interpretation would undermine the other incentives that were put in place through the Commission’s whistleblower rules in order to encourage internal reporting.”
The Government Accountability Project, a whistleblower protection advocacy organization, and Labaton Sucharow LLP, a law firm that specializes in securities class-action lawsuits, wrote a letter Tuesday to SEC chair Mary Jo White thanking her for the interpretive rule, but also asked for further protections.
They pointed out that the new rule clarifies that any disclosure protected by the Sarbanes Oxley Act is shielded from retaliation under its Whistleblower Program. In effect, according to them, protection extends to disclosures within a corporation, to other law enforcement audiences, or to the public. Protection also extends to any violation of federal law, not just those enforced by the SEC. However, they cautioned that the SEC should take additional measures to address the remaining vulnerabilities they identified in a petition last summer to the SEC.
“Our July 2014 petition emphasized that new and creative forms of corporate prior restraint are preventing disclosures from happening at all, making academic the issue of subsequent retaliation,” wrote GAP legal director Tom Devine and Labaton Sucharow partner Jordan Thomas. “Merely presenting employees with nondisclosure agreements creates a chilling effect, and there are no rights for refusing to agree—only for violating one with protected speech. Further, corporations regularly file breach of contract lawsuits, theft of corporate records actions, and other litigation attacks outside the employment context. Realistically, to prevent a chilling effect on the flow of evidence necessary for SEC oversight, it is necessary to go beyond interpretations that restrict harassment of incumbent employees.” ”
Article posted by Accounting Today. Original article at http://www.accountingtoday.com/news/audit-accounting/sec-clarifies-whistleblower-protections-employer-retaliation-75468-1.html
” Background checks by the Transportation Security Administration cleared 73 people for access to secure airport areas even though their names were on a federal database of possible terrorists, a senior official told a Senate committee Tuesday.
The latest security lapse came to light as John Roth, the inspector general at the Department of Homeland Security, delivered a scathing report on problems and blunders at the long-troubled agency.
They include inadequate baggage screening, hiring of convicted criminals, questionable spending, and narcotics smuggling and human trafficking by TSA employees.
“We remain deeply concerned about [the TSA’s] ability to execute its important mission,” Roth told the Senate Homeland Security and Governmental Affairs Committee.
The hearing was held a week after Jeh Johnson, secretary of Homeland Security, reassigned the acting administrator of the TSA in the wake of reports that auditors from Roth’s office had successfully slipped mock explosives and weapons past TSA checkpoints 67 out of 70 times.
The White House has nominated Peter V. Neffenger, vice commandant of the Coast Guard, to take the helm of the TSA. Neffenger is expected to win approval from the Senate committee after a confirmation hearing Wednesday.
In the latest case, Roth said, his investigators had found the names of 73 airport workers “with possible terrorism-related information” in a classified federal database that the TSA could not normally access.
“TSA acknowledged that these individuals were cleared for access to secure airport areas despite representing a potential security threat,” Roth testified.
Roth said the risk was discovered after he asked the National Counterterrorism Center to check more than 900,000 active aviation workers against the classified intelligence database called the Terrorist Identities Datamart Environment, or TIDE. It contains confirmed and unconfirmed information about people with potential terrorist links.
The search found 73 matches of people cleared for access to secure areas. Investigators immediately gave the TSA the names that raised concerns, Roth said. He did not say whether they included any TSA employees, when the discovery was made, or whether any of the people posed an actual threat.
The names of people who are hired by airlines and airport vendors are normally checked against a more narrow, unclassified database that is maintained by the FBI’s Terrorist Screening Center.
Last year, then-TSA head John Pistole sent a letter to the FBI asking that TSA background checks also include a search of the bigger, more inclusive database, Roth said. But the FBI and the intelligence community have not acted, he said.
“I can’t imagine the FBI would not have moved on this with the utmost haste,” Sen. Kelly Ayotte (R-N.H.) said at the hearing. “The bureaucracy can’t hold this up.”
The fact that 73 workers with potential links to terrorism had access to the secure areas of airports “really does give you pause,” Ayotte said, “because it really only takes one.”
Roth also repeatedly criticized the TSA’s use of PreCheck, which allows expedited screening of vetted passengers. He said the TSA allows expedited screening of nearly half the flying public, often by randomly pulling people out of line.
In one case, he said, a convicted felon who was “a former member of a domestic terrorist group” was granted expedited screening even though the traveler was “sufficiently notorious” that a TSA screener recognized him.
The screener “notified his supervisor, who directed him to take no further action and allow the traveler to proceed through the PreCheck lane,” Rush said. He did not identify the passenger. ”
Originally posted by The Los Angeles Times. Article can be found at http://www.latimes.com/nation/nationnow/la-na-tsa-security-lapse-20150609-story.html
“The City Council has voted in favor, 14-2, to increase Los Angeles’ minimum wage to $15 an hour over the next five years.
The council met at 10 a.m. Tuesday to discuss the proposal, which was unanimously approved on May 13 by its Economic Development Committee. It’s the first of two votes needed to finalize the bill.
“Today, help is on the way for one million Angelenos who live in poverty,” Mayor Eric Garcetti said. “I started this campaign to raise the minimum wage to create broader economic prosperity in our city, and because the minimum wage should not be a poverty wage in Los Angeles.”
Officials explained increases will take place on the first of July of each year. Beginning in 2016, the minimum wage will go from $9 per hour to $10.50 an hour.
The rate will then jump to $12 in 2017; $13.25 in 2018; $14.25 in 2019; and $15.00 by 2020.
“There is no question in my mind that better pay for workers would provide myriad benefits,” Councilman Mitchell Englander said. “I am not, however, convinced that a unilateral minimum-wage increase serves the intended purpose and may, worse, have unintended consequences such as job loss, reduction in working hours, or make it impossible for entire industries to do business in the City of Los Angeles.”
For small businesses with 25 or fewer employees, each of the dates will be moved back by one year.
Stuart Waldman, president of the Valley Industry and Commerce Association, said he feels the L.A. minimum-wage hike will hurt businesses, but “the battle is over.”
In Atwater Village, Andy Hasroun owns and operates a restaurant and wine shop with 15 employees. The spot is doing great business and Hasroun sometimes finds himself working 16-hour shifts.
Hasroun says the measure will put him at a huge disadvantage when it comes to nearby competitors in Glendale, just outside the L.A. city line. “For now, we are already looking at…moving to Glendale. We’re looking into it right now, as we speak.”
In L.A., 800,000 people live below the poverty line and 500,000 workers earn minimum wage.
Bryan also spoke with 18-year-old student Gamaliel Martinez. He says his low-wage family barely earns enough to pay the rent and feed nine children. He says raising the minimum wage could have a tremendous impact on his family and his own life.
“I really want to be a general doctor, even though it might take 10 years. So if the City Council votes to raise up the minimum wage that could help me out for my college,” Martinez said.
He says the bill offers hope to low-earning families who aspire towards the American Dream. “If they can raise the wages it would help a lot of lives and a lot of parents, mostly the future youth.”
Other cities, such as San Francisco and Seattle, have passed plans similar to the proposal.”
Originally posted by CBS Los Angeles. Article can be found at http://losangeles.cbslocal.com/2015/05/19/city-council-to-vote-on-15-minimum-wage-increase/
“Add the Commonwealth of Virginia to the ever-growing list of states (now 19) that have enacted legislation to restrict an employer’s ability to seek access to current employees’ or job applicants’ social media accounts. Signed into law by Governor Terry McAuliffe on March 23, 2015, the new legislation, H.B. 2081, will take effect on July 1, 2015. Employers with operations in Virginia should take notice of the new restrictions, and make any necessary adjustments over the coming months.
The new Virginia law prohibits public and private employers, of all shapes and sizes, from:
- Requiring that employees and applicants disclose their social media usernames and passwords,
- Requiring that employees and applicants add the employer, supervisor or administrator to the list of contacts associated with the account (i.e. you can’t make your employees “friend” you – thereby allowing you to see their complete profile); or
- Taking action against, threatening to discharge, disciplining, or “otherwise penaliz[ing]” current employees and/or failing or refusing to hire applicants who don’t provide their social media information.
Like similar laws in other states, the Virginia law has a fairly expansive definition of “social media account,” covering any “personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations.” Because of the breadth of the definition, employers should safely assume that an employee’s account is a covered “social media account.”
What Isn’t Restricted
Thankfully, the new law is not as sweepingly broad as password-privacy laws in other states and contains some common sense exclusions that allow employers to continue to run investigations and enforce workplace policies.
For example, employers are not prevented from seeking information or access to social media accounts as part of legitimate, formal workplace investigations. Specifically, employers may request that an employee provide his or her log-in information “if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.” Similarly, the Virginia law does not stand in the way of an employer’s ability to otherwise generally comply with federal or state laws, rules or regulations.
The law also permits employers to view on-line information about employees or applicants that is “publicly available” and excuses those employers who inadvertently receive an employee’s information (e.g. through normal monitoring of employees on company networks). The law also specifically excludes from the definition of “social media accounts” those accounts that were set up on behalf of or at the request of the employer, or that were “set up by an employee to impersonate an employer.”
While the Virginia law does not explicitly restrict every avenue for circumventing an employee’s social media privacy settings, employers would be wise to train their managers and HR representatives to avoid any behavior that would violate the spirit of the new law. Employers should not ask for, or seek access to, employee and/or applicant social media accounts unless there is a solid business justification that fits squarely within the exceptions provided. In addition, employers should note that just because an action may not violate this new statute, it does not insulate the employer from liability under the National Labor Relations Act or other employment laws. ”
Originally posted by JD Supra. Article can be found at http://www.jdsupra.com/legalnews/new-virginia-law-restricts-employer-78200/
“As an employer, you strive to maintain a certain image for the benefit of your small business, while simultaneously accommodating employees in order to promote company morale. But what do you do when an employee’s religious practices conflict with workplace policies? Here’s what you need to know about your legal responsibilities and how you can keep your workplace safe, efficient, and accommodating.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq protects employees from discrimination in the workplace based on sincerely held religious beliefs. Briefly, Title VII prohibits:
- Unfair treatment based on religion when it comes to hiring, training, benefits, promotions, and other aspects of employment;
- The denial of accommodation for “sincerely held” religious practices, unless those practices would result in “undue hardship” for the employer;
- Job segregation due to religion;
- Harassment as a result of religious beliefs;
- Retaliation toward the employee for requesting specific accommodations or for filing a discrimination charge.
So where does religious dress and grooming fit into Title VII? Basically, the law states that exceptions must be made for particular religious dress in workplace policies regarding appearance and grooming requirements, as long as it does not cause safety or legal concerns.
It all sounds good on paper, but how do you provide real solutions to religious practices in your day-to-day work life? Here are some ideas to help you provide an accommodating atmosphere for every individual in your company:
- Ask questions early. Not being aware of the religious requirements of an employee can lead to a discrimination lawsuit. Under Title VII, it’s acceptable to ask employees enough questions to determine whether exceptions will need to be made to company policies due to religion. But, be careful how you ask those questions.
- Seek compromise. Find out if there is a way for an employee to abide by their religious requirements while adhering to company policy. For example, if your employee must wear his hair long due to religion, but he works around food, ask if he is able to pull his hair back in order to stay within food safety regulations.
- Make an exception when necessary. If there is no possible compromise and the religious requirement won’t cause undue hardship for your business, then you must accommodate the employee. This sometimes means making an exception to company policy.”
Originally posted by The Huffington Post. Full article at http://www.huffingtonpost.com/margaret-jacoby/religious-dress-grooming-_b_7205904.html
“Is it possible for a network of more than 240 factories across 67 countries to completely eliminate landfill waste? And even if it is, would it be practical or indeed financially viable? Unilever has just proven that not only is it possible, but that it also makes sound business sense.
Sending zero non-hazardous waste to landfill has resulted in more than €200m (£131.2m) of cost avoidance and created hundreds of jobs. In Egypt, for example, disabled employees are earning extra income by recycling waste material from production lines.
The approach is to first reduce waste at source then reuse, recover or recycle what’s left. That means reconsidering everything consumed in a factory from reusing packing materials from supplier deliveries to recycling food waste from staff cafeterias.
And the waste is being used in some pretty innovative ways. In Cote D’Ivoire, it’s turned into low cost building materials. In China, it’s used to…”
Originally posted by The Guardian. Full article at http://www.theguardian.com/sustainable-business/2015/feb/12/why-eliminating-landfill-waste-makes-sound-business-sense