Roy Maurer from the Society for Human Resources (SHRM) has written a good article entitled Ban-the-Box Movement Goes Viral which describes Ban the Box measures nationwide. These measures impact private and public employers during the recruitment and hiring process and therefore must be considered as a part of a company’s overall hiring policies and procedures. Read the article by clicking here.
New Jersey is the latest state to enact a ban the box measure applicable to employers. Meaning, employers cannot ask about a job applicant’s criminal history on the initial job application.
Governor Chris Christie signed The Opportunity to Compete Act (A1999) on August 11, 2014. This brings to 13 the numbers of states with a statewide ban the box measure in effect which in some way limits employers ability to ask a job applicant about their criminal history on the initial employment application.
Key provisions of the new law are:
- The law applies to an employer with 15 or more employees and prohibits that employer from requiring a job applicant to complete any employment application that inquires about the applicant’s criminal record during the initial employment application process. “Criminal record” includes arrests, detentions, indictments or other formal criminal charges, and any disposition arising from those. (Section 3)
- With certain exceptions for law enforcement or where required by law, an employer cannot publish any advertisement which explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses (Section 5)
- Violations of the law carry civil penalties ranging from $1,000 to $10,000. (Section 9)
- The law is effective March 1, 2015.
The newly enacted law preempts the Newark ordinance on ban the box, effective March 1, 2015. Note that this version of the law is not as onerous to employers as prior versions — click here for a prior posting on this issue.
The trend on passage of ban the box measures will continue at the state level and should therefore be considered holistically by companies as they consider their overall hiring and retention practices with respect to the use of criminal history records. Employers need to consider not only state and local ban the box measures, but also potential applicability of the federal Fair Credit Reporting Act, Title VII of the Civil Rights Act and state consumer protection laws which may limit the use of criminal history records. Also, note that some states and localities, while not specifically calling it a ban the box measure, for all intents and purposes have a ban the box measure spelled out in state guidance. One example is Arizona, where the Office of Arizona Attorney General, Civil Rights Division, provides examples of acceptable pre-employment inquiries on an application form, and while not prohibiting inquiring about prior convictions, states that they must be accompanied by a statement that a conviction will not be an absolute bar to employment. State guidance in Maine, Missouri and Nevada state that inquiries about arrests are unacceptable as they may lead to discrimination.
From a best practice perspective, employers should consider moving the “question” regarding criminal history to further in the hiring process. Remove it from the job application unless there is an absolute need to know about someone’s criminal history such as a situation where an employer wishes to avail themselves of the Work Opportunity Tax Credit, a Federal tax credit available to employers for hiring individuals from certain target groups including certain ex-felons hired within one year after their conviction or release from prison.
On July 29th, U.S. District Judge Andrea Wood ruled that Dollar General must give the Equal Employment Opportunity Commission (EEOC) hiring records from 2004-2008, and explain to the EEOC the “purported business necessity” for performing criminal background checks on job applicants. Dollar General had challenged the EEOC’s requests, arguing that the post-2008 data it had provided to the EEOC was enough, and that any information about the potential business necessity of background checks was an affirmative defense that it should not be forced to disclose. Judge Wood also declined to shift the cost of Dollar General’s production to the EEOC stating, “the general presumption in discovery is that responding parties must bear the expense of complying with discovery requests.” Dollar General claimed that production of pre-2008 information would require it to expend approximately 160 man-hours and $16,000.
The ruling comes as part of ongoing EEOC litigation against Dollar General which started in June 2013. The initial Complaint alleges that Dollar General’s criminal background checks have led to a disparate impact on African-American job applicants during the time period from 2004 to present (previously reported).
EEOC v. Dolgencorp, LLC d/b/a Dollar General, No. 2013-cv-04307 (N.D. Ill. July 29, 2014).
If you are an employer, keep an eye out for executive action by the Obama Administration this summer which will impact your onboarding process and completion of the Form I-9, Employment Eligiblity Verification Form, as well as require you to address how you handle existing employees who may present a valid work authorization document.
With the U.S. Congress in recess for the month of August coupled with the limited congressional calendar, at this time it’s fair to say that comprehensive immigration reform “ain’t happening” this year. By limited congressional calendar I’m referring to the number of actual days in which Congress is in session and during which time they could take up a major legislative effort such as immigration reform. However, Congress’ inaction in this area is leading President Obama to move forward on administrative measures. What does that mean for employers? Look for some type of executive action by President Obama’s administration which would provide some form of legalization for those currently present in the United States unlawfully. Something along the lines of what he did for young immigrants in 2012 who were brought to this country as children and who were unlawfully present. Those individuals were/are eligible for a work permit. That program — Deferred Action for Childhood Arrivals — may be replicated on a larger scale. That means more individuals who are not authorized to work in the United States (at least not lawfully) may see their immigration status legalized.
All of this could mean two things for employers. First, you will have a larger pool of indivudals showing a valid work permit (Employment Authorization Document) when completing the Form I-9. Second, existing employees could come forward seeking to “update” their employment status by presenting a valid work permit. In the latter situation, this means employers will need to reassess how they handle such in light of their policies and procedures and also in light of the company’s honesty policy.
If you are involved in Human Resources at your company, now is a good time to consider how you would handle the latter situation and whether you need a company policy with respect to a situation where an employee presents him/herself to you with possibly a new name and at the very least a valid work authorization document. Bear in mind that perhaps, when they completed the Form I-9, they showed a permanent resident card (List A document) or a driver’s license and Social Security card (List B and List C documents). Now they are presenting a valid work permit issued by U.S. Citizenship and Immigration Services. What would you do? I would recommend you have such a conversation with an attorney and we can assist with such at Arnall Golden Gregory LLP.
Illinois Governor Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act (Public Act 098-0774) on July 21, 2014, which will go into effect January 1, 2015. The law bans criminal history checks in the private sector until after an applicant is deemed qualified for the job or a condition offer of employment is made.
Below are some details about the approved Act:
- An employer is defined as any person or private entity that has 15 or more employees.
- The Act states that “an employer or employment agency may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency”. (Section 15(a))
- The Act does not apply to positions where employers are required to exclude applicants with certain criminal convictions due to federal or State law, a standard fidelity bond or equivalent is required and an applicant’s criminal history would be relevant, or employers employ individuals licensed under the Emergency Medical Services System Act.
- Interestingly, the Act does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or State law or the employer’s policy. (Section 15(c))
The Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) assessed an I-9 related penalty of over $228,000 to a Georgia construction company. This is one of the larger fines I’ve seen issued by Immigration and Customs Enforcement (ICE) for such violations, and it was even below what they originally assessed, which was a fine of nearly $332,000. All this over paperwork violations (i.e., failure to present and/or failure to properly complete) related to the Form I-9, the Employment Eligibility Verification form which all new hires must complete.
- The issuance of the Notice of Inspection (NOI) by ICE was fueled by a damaging media story by the Atlanta Journal Constitution in 2010 in which a group secretly taped a foreman making statements about hiring undocumented workers. ICE issued an NOI requesting Forms I-9 for a three year period as well as employment records, payroll data, wage and hour reports and other information.
- ICE alleged two counts. First that the company failed to ensure that 277 named employees properly completed Section 1 of the Form I-9 and/or failed to ensure that the company properly compelted section 2 of the Form I-9. Second, that the company failed to prepared and/or present Forms I-9 for 87 employees. ICE initially requested a penalty of $332,813.25 with penalties of $981.75 per I-9 violation. OCAHO Administrative Law Judge Thomas issued a final decision and order, finding the company liable for 338 of the violations alleged, but mitigating the total penalty to $650 for each violation in Count I and $750 for each violation in Count II, for a total civil money penality of $228,300. See, United States of America v. M&D Masonry, OCAHO Case No. 13A00023.
- In Judge Thomas’ decision there was a discussion regarding determining the appropriate size of the company for purposes of assessing a civil penalty. But what I found interesting is the fact that the company pre-signed over 100 Forms I-9, which could constitute a false attestation. In her decision, Judge Thomas states, “review of the company’s I-9 forms reflects what appears to be a wholesale execution by means of a rubber stamped signature in section 2 on February 20, 2008 of a large number of what must have been at the time otherwise blank I-9s.” It furthermore appears that many of these forms listed no documents in Section 2 and no start dates. Judge Thomas goes on to say, “It is difficult to avoid the inference that the forms were prepared in bulk in advance and used as needed for subjsequent hiring.” See United States v M&D Masonry, 10 OCHAO no. 1211, p. 12.
As a practitioner in the field, I know that company’s often struggle with issues related to Form I-9 compliance stemming from a variety of reasons. But employers can learn a few lessons from this case.
- Know what those in the field or on-site are doing (specifically those with hiring authority) because their actions can hurt the company. Also, no one other than principals or a designated spokesperson should be authorized to speak with the media. This case was a little different since the individual allegedly secretly taped the foreman, but have a media plan in place so that all media requests are funneled to the appropriate individuals within the company.
- Often times, especially where there is high turnover or high volume hiring, employers try to streamline the I-9 process in different ways. One way may be to pre-populate the employer information section in section 2 of the Form I-9. That can be acceptable depending on how it is done, but it is never acceptable to pre-sign section 2 of the Form I-9.
- Have a Form I-9, properly completed, for each current employee. Civil paperwork penalties for the Form I-9, which range from $110 to $1,000, can quickly add up due to aggravating factors and therefore they are never really $110 per violation.
- Overview of current privacy and consumer regulatory “hot topics”
- Telephone Consumer Privacy Act (TCPA) – class action litigation trends
- Fair Credit Reporting Act (FCRA) – class action litigation trends
- Anatomy of a successful class action defense
Webinar date — July 30 at 11 am EDT.
Register Now for this one-hour, complimentary webinar with AGG attorneys Montserrat Miller, Kevin Coy, Henry Chalmers and Kelly Gordon Zemil.
This webinar is awaiting CLE credit approval by the State Bar of Georgia.
On July 16, 2014 representatives from three federal agencies will provide their perspective on current policies and best practices to reduce barriers to employment for individuals with past criminal arrests or convictions. Although the webinar is targeted toward federal contracting officials, it is well worth your time if you are engaged in background screening operations to hear the federal government’s perspective on the use of criminal history records for employment purposes in this context. Below is the webcast announcement from the Department of Labor, Office of Federal Contract Compliance Programs.
In support of President Obama’s efforts to strengthen the economy and get more Americans back to work, the U.S. Department of Labor, Office of Personnel Management and Equal Employment Opportunity Commission are working together to reduce barriers to employment for individuals with past criminal arrests or convictions. To learn more about these efforts, we invite you to attend a webinar entitled:
Engaging Federal Contractors – “Understanding the Current Policies and Best Practices to Reduce Barriers to Employment for Individuals with Past Criminal Arrests or Convictions”
Representatives from DOL, OPM and the EEOC will host this joint webinar for federal contracting officials to ensure familiarity with the rules and best practices regarding nondiscrimination and the appropriate use of criminal background checks to screen applicants for employment. In particular, the webinar will focus on the Office of Federal Contract Compliance Programs’s Directive 2013-02, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” OPM’s “Best Practices for Contractor Fitness Adjudication,” and EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”
Wednesday, July 16, 2014
1:00 P.M. to 2:30 P.M. Eastern
Who should attend?
The audience for this joint session will include the acquisitions community, procurement officials, project officers, personnel security staff, federal contractors, and human resources staff.
How to View the Webinar:
The link to view the OPM webcast is:
The link to view the captioning for the webcast is:
You will be able to watch the webcast on a PC or MAC computer. When you click on the link it will open up into whatever your default browser is set to on your computer. Chrome. Firefox. Internet Explorer. Safari. Opera. You should make sure that your browser has the latest updates.
You should try and view the webcast with coworkers in one central location to preserve bandwidth for your organization.
If you telework DO NOT log onto the webcast through CITRIX. You will NOT be able to view the webcast through the CITRIX connection. Simply click on or copy and paste the link into your favorite browser with a broadband connection.
If you have any problems connecting to the webcast, please contact your IT Help Desk right away.
Moving forward, every week I will aspire to post a “Tip of the Week” based on what I see in my practice and which may be helpful to you to avoid the same issue. These will simply be tips of a general nature and not intended as legal advice. This week’s tip relates to the Form I-9, the Employment Eligibility Verification form, which employers must complete whenever they hire a new employee.
These days, the Form I-9 is two-pages long. When conducting Form I-9 self-audits/internal audits for clients I often see this error — the employer does not write the employee’s name along the top of Section 2 on the second page of the Form I-9. This is problematic because ICE (the agency that enforces companies compliance with respect to the requirement to have a Form I-9) believes that without the indivdual’s name on the second page there is no way that second page could be identified with that employee. Leading, on its face, to a situation where an employer may not have a complete Form I-9 to present to ICE. Now, if you only have 5 employees that may not be a problem because reasonable minds could solve the mystery, but what if you have 100s or 1,000s of Forms I-9?
Imagine this scenario — the summer intern just pulled all of your I-9s together in an organized manner and subsequently is walking into the secure location where they are stored, trips, and all the forms go flying up in the air and scatter. What’s worse, the intern is so mortified that they simply pull them all together, place them in the cabinet and return to their college without telling you what happened. Imagine your surprise when you discover this. Out of curiosity, pull some of your Forms I-9 (assuming they are paper I-9s) and check whether the employee’s name is on page 2, along the top of the form.
If you think it’s time to conduct an internal audit of your Forms I-9, we are ready and able to do so at Arnall Golden Gregory LLP.
Happy 4th of July!
Join us tomorrow for DPRCRA Live: Privacy at MidYear to learn about the latest developments in the privacy field. Tomorrow’s webinar is another in a series of webinars hosted by my firm, Arnall Golden Gregory LLP, and the Privacy & Consumer Regulatory Practice Group. This month we will review and discuss some of the biggest events that have occurred in the privacy field to date in 2014. This webinar will cover the following major events and developments:
- The FTC’s new Data Broker Report;
- Wyndham and LabMD – the battle over the FTC’s authority;
- Updates on data privacy in the European Union and the “right to be forgotten”;
- EU Safe Harbor;
- The FTC Spring Privacy Series, including discussions on: mobile device tracking and alternative scoring products;
- Debt collection in light of the FTC’s settlement with Consumer Portfolio Services; and
- An update on the past six months on Capitol Hill.
Join AGG Privacy attorneys Montserrat Miller, Joseph Rubin, Kevin Coy and Kelly Gordon Zemil for this one-hour, complimentary webinar. A live Q&A session will follow the discussion.
To Register please click this link.