Mega Group Online

“LA City Hall panel backs fining companies for asking applicants about past crimes”

“Businesses that ask a job applicant about his or her criminal history during the hiring process could be fined and forced to pay the applicant up to $500 under a new law being considered by city leaders.

A Los Angeles City Council committee backed a plan Tuesday to penalize businesses that weed out applicants based on criminal convictions.

The rules are part of a law under consideration by the council aimed at giving former convicts a better shot at obtaining employment.

The Ban the Box ordinance, approved in concept last year by the council, bans private employers with 10 or more workers from asking questions related to an applicant’s criminal history before a conditional offer of employment has been made.

Employers also have to strip criminal history questions from job applications under the proposed law. The “box” refers to “check box” indicating a conviction on an application.

Exemptions for employers in the child care or law enforcement industry are allowed under the ordinance.

Los Angeles non-profits, churches, and other groups support the law, contending it will cut jail recidivism rates by helping former convicts land jobs.

Both the state and federal governments have similar rules in place for applicants seeking public sector jobs, while San Francisco has laws that also apply to private companies.

Some Los Angeles business groups, including the Valley Industry and Commerce Association, oppose the proposed Los Angeles law.”

 

Originally posted by Dakota Smith of The Los Angeles Daily News. Full article at http://www.dailynews.com/government-and-politics/20160628/la-city-hall-panel-backs-fining-companies-for-asking-applicants-about-past-crimes

EEOC ISSUES PUBLICATIONS ON RIGHTS OF JOB APPLICANTS, EMPLOYEES WITH HIV

“The U.S. Equal Employment Opportunity Commission (EEOC) today issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.

The White House has issued a (Archived) National HIV/AIDS Strategy (NHAS) for the United States. One of the steps identified by the Strategy is to reduce stigma and eliminate discrimination associated with HIV status and services. EEOC has a long history of enforcing the nondiscrimination rights of individuals with HIV infection in employment. During Fiscal Year 2014 alone, EEOC resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000.00 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations. EEOC now extends these efforts by issuing two documents that explain these rights.

We are proud to be a part of the National HIV/AIDS Strategy,” said EEOC Chair Jenny Yang. “Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”

Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. It also answers questions about the process for obtaining an accommodation; possible accommodations; the privacy rights of people who have HIV infection; the employer’s obligation to keep medical information confidential; and the role of EEOC in enforcing the rights of people with disabilities.

Helping Patients with HIV Infection Who Need Accommodations at Work explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation. It also answers questions about the types of accommodations that may be available; the ADA’s protections against employment discrimination based on having the condition or on the need for accommodation; the importance of disclosing the need for an accommodation before a problem occurs; and what to do when an employer raises safety concerns.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/eeoc-issues-publications-on-the-rights-74987/

NATIONAL SHIFT IN EMPLOYMENT FOR DISABLED CITIZENS IS NOTICED

“Ted Knuck visited Washington, D.C., recently to testify about something that’s causing him great worry: his child’s right to choose where she works.

Knuck, a retired Pima County judge, shared daughter Genna’s story in mid-October on behalf of ACCSES, a public policy group that represents more than 1,200 disability service providers nationwide. That talk, before an advisory committee for the Workforce Innovation and Opportunity Act, is part of a national debate: Should the norm for people with disabilities be to work in integrated employment rather than in sheltered settings?

Over the last several years, states such as Vermont, Maine, Washington and New York have started phasing out or closing their sheltered workshops. These work environments, such as Tucson’s Beacon Group, are where people with disabilities work together in a controlled environment.

The advisory committee’s task is to prepare recommendations, over a two-year period that started in January, for the U.S. Labor Department on ways to increase employment opportunities for those with developmental disabilities.

Knuck says it’s not a realistic goal, or a fair one for those who have already tried integrated work and found it challenging and upsetting.

“In a perfect world, that would be wonderful, but that’s an impossible dream,” he said. “Those of us who are not disabled tend to impose our way of thinking on people who are disabled.”

His daughter, Genna, who is developmentally disabled, gets to work in a safe, supportive environment at Beacon, he said. She enjoys the simple routine and friendships she’s made there, he said, and, if a problem arises, the staff helps her and she gets time to recover.

Before she started at Beacon 12 years ago, Knuck said, Genna tried other jobs but quickly became frustrated and overwhelmed. What’s tricky, he said, is that his daughter’s challenges are not immediately evident and so people expect her to be capable of more than she can deliver.

He does not want to see her pushed to try integrated work again.

People who work at Beacon’s huge warehouse, at 308 W. Glenn St., carry out multiple subcontracts that might involve making airplane rivets, shredding documents or helping with shipping orders — many for wages below or far below the state minimum of $8.05 per hour. Others earn significantly more than that, said Patrick McCarthy, Beacon’s director of development. It depends on their capabilities.

THE OLMSTEAD RULING

Many states are taking action in integrated employment even though regulations haven’t been finalized yet, said Leann Fox, director of government affairs for ACCSES.

The shift is tied to a 1999 Supreme Court decision that people with developmental disabilities have the right to live in the community, not in institutions. That Georgia case, Olmstead vs L.C., led to what’s now called Olmstead Enforcement.

The National Disability Rights Network helped the U.S. Department of Justice’s Civil Rights Division enforce Olmstead in Rhode Island, where an investigation found the state over-relied on segregated employment.

Rhode Island, the first state to reach an Olmstead settlement over employment, is now required to provide job opportunities to more than 3,200 residents with developmental disabilities over the next 10 years.

Jennifer Carusetta, chief legislative liaison for the Arizona Health Care Cost Containment System, that state’s Medicaid program, said there are no plans to cap enrollment for, or close, centers like Beacon.

“We want to ensure that individuals who are able and would like to transition into integrated employment have the tools and opportunity to do so,” she said.

The idea will require that individual be evaluated based on their ability to obtain integrated employment and then set individual goals accordingly.

“We recognize that integrated employment may not be attainable for all people,” she said. “We also recognize that there are people who, with the assistance and training provided in center-based employment, may be able to move in the direction of achieving this goal.”
FLEXIBLE MINIMUM WAGE

Beacon Group, which started here more than 62 years ago, provides supported employment in the community and job placements with more than 20 local employers.

About 715 people work at Beacon, or receive services there through its day program. In addition, about 150 former clients left for regular jobs last year, McCarthy said. About 68 percent of the employees have development disabilities. Each employee had two individual-support planning meetings last year, he said.

Beacon grossed about $16.7 million last year and netted about $400,000, McCarthy said. About $130,000 is restricted grant money that has not been spent on programs yet, he said, and the rest goes into reserves or to pay off debt.

Two pending federal bills would phase out special wages altogether over the next few years, Fox said. New Hampshire has already eliminated its flexible minimum wage, she said, and it’s still unfolding what this will mean to people who are not capable of earning more.

“There’s some hesitation to have a real conversation about those folks who aren’t going to be able to achieve this lovely idea of competitive, integrated employment and what it’s going to mean for their quality of life and the quality of life of their family members,” she said.

Fox said that in some states, the change has resulted in people who were previously employed now staying home all day or doing little in day treatment programs.

“Some of the people are depressed,” she said. “They are having feelings that most people would have when they lose a job.”

 

Originally by the Arizona Daily Star. http://tucson.com/business/local/national-shift-in-employment-for-the-disabled-upsets-some/article_033d87a0-b166-59a2-9dc2-898aef48e334.html

OBAMA SUPPORTS “BAN THE BOX” FOR FEDERAL JOB APPLICATIONS

“President Obama said Monday he was directing federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective government employees about their criminal histories on job applications.

Speaking at Rutgers University in Newark, N.J., where he highlighted programs meant to ease the reentry of former inmates into society, Obama said the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.”

It’s unclear how many federal agencies would be affected by Obama’s action. Many agencies already delay asking about criminal history until later in the hiring process, but Obama is directing the Office of Personnel Management to issue guidance making that practice universal across the federal government.

“It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”

And while civil rights groups applauded the move, many had hoped for an even more sweeping executive order. The American Civil Liberties Union called the move “an important first step,” but called on him to follow up with an order that would apply not only to federal employees, but federal contractors. Obama has used 15 similar orders during his presidency to force companies doing business with the government to raise the minimum wage, adopt non-discrimination policies and grant workers paid time off.

“While the president is with us in spirit, his administration is not yet ready to make an executive order a reality,” said Wade Henderson of The Leadership Conference on Civil and Human Rights.

White House spokesman Frank Benenati said the president prefers congressional action on contractors  “as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration.”

Sen. Cory Booker, D-N.J., who is sponsoring that legislation with Sen. Ron Johnson, R-Wis., said Monday that he’s “really happy to see the president continue to push the envelope” and bring attention to the issue.

But the ban-the-box effort, he said,  “should be done legislatively, so that the stroke of another president’s pen can’t undo it.”

Obama highlighted offender reentry programs Monday in New Jersey as part of a nationwide tour to build support for Congress to overhaul the criminal justice system.

His first stop in Newark was a tour of Integrity House, a halfway house and drug rehabilitation center that gets 85% of its referrals from the criminal justice system. Meeting with former prison inmates who are now residents of the house, Obama said the center does “outstanding work with folks with addiction issues,” and said he hoped his visit would “highlight what is working” across the country.

Obama highlighted the story of Dquan Rosario, who served time in prison for drugs but then, at age 37, went back to school and is now an emergency medical technician in Newark. Obama said Rosario’s story shows it’s never too late for a second chance.

“There are people who have gone through tough times. They’ve made mistakes. But with a little bit of help, they can get on the right path. That is what we have to invest in, that is what we need to believe in,” Obama said.”

 

Originally posted by USA Today. Full article at http://www.usatoday.com/story/news/politics/2015/11/02/obama-tells-federal-agencies-ban-box-federal-job-applications/75050792/

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/

CALIFORNIA ACTS TO OUTLAW PRE-EMPLOYMENT MANDATORY AGREEMENTS TO ARBITRATE LABOR CODE CLAIMS

“In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy starting January 1, 2016. AB 465 would create a new statute that prohibits employers from requiring a candidate to “waive any legal right, penalty, remedy, forum, or procedure for a violation of [the Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner… or any court or other governmental entity.” The section explicitly covers “an agreement to accept private arbitration.” The bill makes it unlawful to threaten, or retaliate or discriminate against, a person who refuses such a waiver. An employee may recover reasonable attorney’s fees incurred in enforcing rights under the new statute.

Even if the bill becomes law, certain forms of pre-employment arbitration agreements would remain enforceable, even if they cover Labor Code violations. For instance, those agreements that are knowing and truly voluntary—i.e., not made as a condition of employment—would be valid, but the employer would have the burden of proving these facts if challenged. Further, the new statute would not apply to persons registered with a self-regulatory organization under the Securities Exchange Act of 1934 or employees represented by counsel in negotiating the agreement.

AB 465 is principally backed by organized labor, with the California Labor Federation, AFL-CIO sponsoring the bill. A lobbyist for the federation cited an uptick in the instances of low-wage workers being unable to recover unpaid wages before the California Labor Commissioner due to an arbitration agreement they did not understand or know they signed. The bill is opposed by many groups, including the Civil Justice Association of California and the California Chamber of Commerce. The chamber has identified AB 465 as one of the 2015 Job Killers, citing the increased burden on the judicial system and noting likely preemption by the Federal Arbitration Act.

If AB 465 becomes law, the long-term legal impact is unclear. Not only will it prohibit pre-employment, mandatory agreements to arbitrate Labor Code violations, but it may also reach class action waivers, which the California Supreme Court recently upheld in the employment context. The substantive reach of the prohibition is also unclear, expressly covering a “legal right, penalty, forum, or procedure” for a Labor Code violation, but remaining silent on other employment-related statutes such as the Fair Employment and Housing Act (codified in the Government Code). Moreover, the statute will almost certainly be challenged under the Federal Arbitration Act, which reflects a liberal policy favoring arbitration enforceability and pre-empts state rules that disfavor arbitration. The ambiguity in breadth and pre-emption uncertainty leave employers in an unenviable position if the bill becomes law.

AB 465 (and the other employment-related bills described below) remain on Governor Brown’s desk for consideration, and we will continue to monitor and report on developments.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/california-legislature-acts-to-outlaw-73929/

BMW SETTLES EEOC CRIMINAL BACKGROUND CHECK SUIT FOR 1.6 MILLION

“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

UBER BACKGROUND CHECKS MISSED CRIMINAL RECORDS

“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.”

ANOTHER CIRCUIT COURT RULES PAID SUSPENSION IS NOT ADVERSE EMPLOYMENT ACTION FOR TITLE VII

“Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.

The case, Jones v. Southeastern Pennsylvania Transportation Authorityinvolved an employee who was suspended with pay while her employer investigated allegations that she had submitted fraudulent timesheets. She didn’t suffer any loss of income or compensation. She was off workwith pay. Nevertheless, the employee sued her employer claiming, among other things, sex discrimination and sexual harassment.

In evaluating whether or not the paid suspension could be considered discriminatory, the Third Circuit observed that Title VII prohibits discrimination with respect to decisions concerning hiring, firing, compensation and other terms and conditions of employment. Because suspending an employee with pay does not neatly fall within these categories, the court concluded that such a paid suspension could not be an adverse employment action for Title VII purposes. The lack of an adverse employment action similarly negated the plaintiff’s sexual harassment claim.

All in all, the decision is good for employers and ensures that those who do go the extra mile to suspend with pay do not get burned for doing so. Although the decision does not guarantee that an employee will not sue over a paid suspension, it does effectively curtail a Title VII claim in this context – and particularly in the Circuits that have adopted this rule. And doing so makes perfect sense: it smacks of unfairness that a company which pays an employee on leave might then be forced to also pay to fend off a discrimination or harassment claim filed by the very same employee who was on the paid suspension.

Practically, what does this case mean for employers? They have a choice to make: (a) pay the suspended employee and eliminate the potential for a discrimination claim; or (b) choose not to pay the suspended employee and accept the risk that the employee – and a court – would find the lack of payment as an adverse employment action.

Whatever choice employers make, they also must make certain they handle similar decisions uniformly and not in a way that would be perceived as discriminatory: selectively suspending some employees with pay but not others (i.e. those who are not be in protected classes) would only create a bigger problem. As with everything in the employment arena, employers constantly must evaluate the risks and benefits of their individual actions, while simultaneously keeping the big picture in mind.”

Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/not-all-good-deeds-are-punished-paid-suspension-not-adverse-employment-action-title-