San Francisco Limits Criminal Background Checks In Hiring

San Francisco Limits Criminal Background Checks In Hiring

San Francisco has put limits on criminal background checks in hiring a new employee.

San Francisco has joined Hawaii, Massachusetts, Minnesota, Rhode Island, and Philadelphia, Seattle and a few other cities in restricting pre-employment inquiries into criminal backgrounds of potential employees.

(While the remainder of this post will focus on the new SF City Ordinance, on March 10, 2014, the U.S. Equal Employment Opportunity Commission and the U.S. Federal Trade Commission issued joint guidance on employment background checks. There are two documents: one for guidance directed to employees and job applicants and the other is guidance directed to employers. Both documents contain general information, tips and lists of additional resources.)

San Francisco Mayor Edwin Lee signed the Fair Chance Ordinance in mid-February and it will go into effect on August 13, 2014. Below is a summary of some of the key provisions of the new Ordinance:

  • It applies to employers with 20 or more employees, however, the restrictions only apply to employees who perform most or a substantial part or their duties within San Francisco. Thus, it would appear that, for example, if your company has 25 employees in Los Angeles, and is seeking to hire someone to work in San Francisco, the new Ordinance would apply to the hiring process for that position.
  • Employers cannot ask about an applicant’s criminal history in an employment application. Also, employers cannot ask about criminal histories during the initial interviews of candidates. Instead, questions about criminal histories may be investigated only after 1) the initial interview or 2) a conditional offer of employment.
  • Even when asking about criminal backgrounds, employers face more limitations about what types of criminal activities they can ask. Specifically, employers are barred from considering many items including the following: arrests that did not lead to conviction; convictions more than seven years old; convictions that have been judicially dismissed, expunged or voided; juvenile convictions; and a few other items.
  • If provided information about relevant criminal events, an employer may only consider that criminal event if it directly relates to the position. So, the crime must have a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position. Employers must evaluate whether the job position provides the opportunity for the same or similar crime to occur, and the employer must analyze how distant in time the crime occurred and whether there are mitigating circumstances or evidence of rehabilitation.
  • Before making an adverse employment decision, the employer must provide the candidate with notice that an adverse decision is imminent. Then, the candidate has seven (7) days to provide evidence of rehabilitation and/or mitigating circumstances.
  • The Ordinance also requires posting of a notice that will be created by the San Francisco Office of Labor Standards Enforcement, notices in relevant job postings, and certain record-keeping practices.
  • The Ordinance also authorizes the SF OLSE to administratively enforce the Ordinance and levy penalties. Additionally, the City may bring a civil action in and seek remedies including backpay, reinstatement, liquidated damages, and attorneys’ fees and costs.

Employers should plan now to comply with the Ordinance and put the following on their “to do” lists:

  1. consult with an employment law/HR attorney
  2. update template employee application forms to eliminate prohibited questions
  3. update template job posts so that they contain required language
  4. update disclosure and authorization forms, and notices of adverse decisions
  5. train anyone who will be analyzing criminal histories about the requirements of the Ordinance, including the prohibition of retaliation
  6. review and update record-keeping practices to comply with the Ordinance
  7. post the required notice after the OLSE publishes it

What do you think about this new Ordinance? Does it help give a “fair chance” to those with a criminal background? Does it go too far and/or interfere too much with employment practices?

Office Closures Lead To Employment Issues

Office Closures Lead To Employment Issues

The severe winter storms can bring employment issues when employees work from home.

Unexpected office closures due to weather, earthquakes, and other unanticipated events often lead to a variety of employment law/HR issues for employers and employees. Businesses should plan ahead for those unexpected closures so that they are prepared to handle safety, communication, productivity and many other issues.

In my January 2014 post for Maximize Social Business, I examine two social media/technology issues and also the important (and sometimes confusing) issues of wage payment during office closures. The post is titled “Workplace Woes During Weather Worries” but is certainly applicable to closures due to other events besides the recent Polar Vortex.

Image credit – Benjamin Krain/The Arkansas Democrat-Gazette/AP


New I-9 Form Required For All Employers

New I-9 forms are required this year.

After over a year of editing, the US Citizenship and Immigration Services agency of the Department of Homeland Security has published a new Employment Eligibility Verification Form (Form I-9). The new form went into effect on March 8, 2013. Recognizing that employers may need a bit of time to transition use to the new form, the USCIS provided a sixty (60) day “safe harbor” for employers, and thus, gave employers until May 7, 2013 to start using the new Form I-9. Thus, now is the time your company should be taking steps to be in compliance by early May.

The new I-9 Form is now nine pages in total (seven pages of instructions/information, one page for the employee to complete, and one page for the employer to complete). Generally, the entire form is much easier to read than the old forms, and should help to reduce mistakes by the employee and employer. The seven pages of instructions are also more helpful and provide more clarity. In addition, the USCIS has updated the “Handbook for Employers, Guidance for Completing Form I-9″ (M-274).

Some General Reminders and Tips:

  • Employers are required to complete the Form I-9 each time they hire a new employee (with some exceptions).
  • A new employee should fill out the first page of the Form I-9 at the date of hire (which is no earlier than when the employee accepts the job offer), which should be no later than the first day the employee performs work.
  • Then, the employer should review the employee’s information on the Form I-9, and complete the employer sections (page 2 of the form) no later than three (3) business days from the date of hire.
  • The employer must physically examine the documents the employee presents for verification, and the person who examined the documents must be the person who signs the Form I-9.
  • Most employers choose to photocopy the employee’s documents. If your company does so, then the company must be sure to follow this same practice for every employee.
  • Employers must retain the completed Form I-9 and copies of documents for as long as the employee works for the employer, AND for a period after the employee separates from the company. These records can be retained in paper format, on microfilm, or electronically, but please review Part 3 of the Handbook for details.
  • Employers could face stiff penalties:
    • For failing to comply with Form I-9 requirements: not less than $110 and not more than $1,100 for each violation;
    • For knowingly hiring (continuing to employ) unauthorized workers: not less than $375 and all the way up to $16,000 for each unauthorized worker;
    • Potential civil lawsuits for discrimination and retaliation; and
    • Additional penalties and even criminal charges for other violations.
  • Train company representatives who will be processing Form I-9s for your company.
  • Review/audit your Form I-9 procedures and files to determine how your company is doing and whether it is compliant.

DLSE Revises (Again) Wage Theft Prevention Act FAQs and Notice

DLSE Revises (Again) Wage Theft Prevention Act FAQs and Notice

What does the revised Wage Theft Prevention Act mean for employers and employees?

For most who keep up with California employment law/HR issues, Thursday, April 12, 2012 will be remembered as the day the CA Supreme Court published its long-awaited Brinker decision. That same day, however, the CA Division of Labor Standards Enforcement (DLSE) issued revised FAQs and Notice regarding the new CA Wage Theft Prevention Act – a law I previously wrote about in February (here).

The new FAQs provide additional information about how the DLSE contemplates employers should comply with the law and it contains many new questions/answers for guidance, including the following (the full text of the FAQs and the new Notice can be found here): (Update (4/25/2012): The Notice is available in many languages including English, Spanish, Vietnamese, Korean, Chinese, and Tagolog).

  • Importantly, the FAQs make clear that an employer need not issue a new Notice to the employees who were provided notices using the earlier templates provided by the DLSE. However, if there is a substantive change in the information previously provided on an old template, then the employer must use the new Notice to communicate such change within 7 calendar days of such change. And all new hires after April 11, 2012 should be provided notice via the newest Notice template. (FAQ #27).
  • The DLSE has clarified that, on the April 11, 2012 template, the Acknowledgment of Receipt is optional. I would recommend that the employer attempt to obtain the employee’s signature acknowledging receipt of the Notice. If the employee refuses to sign, the employer should still give notice to the employee and note the employee’s refusal to sign on its copy of the notice. (FAQ ## 10 and 23).
  • Employers must provide overtime rates on the Notice, and may not just simply state “the multiplier for overtime (e.g., 1.5 and/or double the regular rate)” since the multiplier does not specify the overtime rate. (FAQ #19).
  • For new hires, the Notice must be provided “at the time of hiring,” which is an ambiguous term. The DLSE provides that “the employer must provide the notice to new hires reasonably close in time to the inception of the employment relationship which may be a date determined by the employer and employee, however, in no event later than the first day services are performed by the employee.” (FAQ #20).
  • The new Notice has deleted the prior questions regarding at-will employment – questions that I recommended employers take unique steps in answering on the original notice. The FAQs make clear that the Notice “has nothing to do with ‘at will’ employment in California.” (FAQ #21).
  • The FAQs also explains why the statute requires that the Notice contain “the name of the employer, including other ‘doing business as’ names used by the employer.” (FAQ #26).
  • The FAQs also provide further information specific to an employer that is a “staffing agency or business.” (FAQ ##28, 29 & 30).

Employers are NOT required to use the template Notice provided by the DLSE, but it may be easier to do so in order to comply with the law, and it is nice to show the DLSE that the company relied on DLSE guidance and forms should any audits/claims arise.

Small Firm Advantages – A Slam Dunk!

Small Firm Advantages – A Slam Dunk!

Small firm advantages are numerous.

Recently, former VP/Global Head of Legal at eHarmony, Antone Johnson, tackled the question: “Why Are Lawyers So Expensive Even With The Excess Supply Of Lawyers?” Mr. Johnson’s focus was on why large law firms charge their very high rates. Significantly, and not surprisingly, top-notch work quality, dedication, and responsiveness (three important aspects of my practice) were not listed.

Classic lose-lose situation. Mr. Johnson dissected how most large law firms are obsessed with rankings, have huge overhead, and grapple with other aspects of the legal industry that cause their fees to skyrocket. He also reflected that many companies are “fed up with large firms’ endlessly escalating billing rates and cost insensitivity.” As he pointed out, the result is that the legal services industry now has overpriced lawyers sitting around doing nothing, and clients not getting served because they can’t afford those rates. Classic “lose-lose” situation.”

Obvious win-win or slam dunk. Importantly, Mr. Johnson acknowledged that there are alternatives. He noted that “many talented, experienced lawyers hav[e] left big firms [], and technology mak[es] it easier than ever to set up shop as a new solo practice or small firm…” Indeed, business models like mine provide a better alternative for clients who no longer want to (or can no longer afford to) pay large firms for everything except top-notch work quality, dedication, and responsiveness. Mr. Johnson calls such business models “such an obvious win-win — or slam dunk.”

  • If your company still depends on large law firms for employment/HR related issues, I personally invite you to discuss with me how large law firm “escapees,” like me, are able to provide top-notch service without worrying about firm overhead, rankings on the AmLaw100, or carrying the dead-weight of an under-performing practice area.
  • If your company still believes great lawyers are too expensive, and thus, unaffordable, I personally invite you discuss with me how I can help your company at rates much lower than you might think.

Whatever situation your company is in, do not overpay for, or put-off getting, the legal services your company needs. For example, there is usually no good reason to pay (or to delay in fear of) large firm rates to have your company’s Handbooks, policies and employment/severance/confidentiality agreements updated and compliant. Do not overpay for, or put-off, getting advice on tricky employment/HR issues, getting and keeping your company in compliance with wage and hour laws, dealing with social media in employment issues, and getting mandated training done for your employees. And certainly, do not overpay, or go unrepresented, when your company must defend against claims brought before administrative agencies and courts. Indeed, I will be the first one to tell you if your matter would be better served by having a large law firm on your side (perhaps, for example, in defending class actions).

Mr. Johnson’s article in Forbes can be found here.