Employment Decisions Archives

San Francisco enacts ordinance for using criminal records in employment decisions

Effective August 13, 2014, under San Francisco’s Fair Chance Ordinance, companies with 20 or more employees are prohibited from inquiring about an applicant’s criminal history on the employment application or during the first live interview. Along with banning the box, the ordinance imposes several additional restrictions and mandates certain considerations for individualized assessment. San Francisco employers must also ensure that their notice and consent forms for criminal background inquiries later in the process comply with the guidelines that will be published by San Francisco’s Office of Labor Standards Enforcement (OLSE) as well as with the already existing background check disclosure/authorization requirements under California’s ICRAA and the FCRA.

San Francisco is the ninth jurisdiction with legislation that affects private employers. The remaining eight are the states of Hawaii, Massachusetts, Minnesota, Rhode Island, and the cities of Buffalo, NY, Newark, NJ, Philadelphia, PA, and Seattle, WA. Multi-state employers should consider whether their particular circumstances warrant adopting individualized employment applications for jurisdictions with ban-the-box laws, or whether to use a nationwide standard form. Employers who opt for a standard electronic application for all locations need to include a clear and unambiguous disclaimer for applicants in each applicable ban-the-box jurisdiction. It is uncertain whether such disclaimers are sufficient for paper applications of multi-state employers in at least one ban-the-box jurisdiction (Minnesota) or if the box must be removed altogether.

For more information on ban-the-box legislation, see the recently published briefing paper by the National Employment Law Project titled Statewide Ban the Box – Reducing Unfair Barriers to Employment of People with Criminal Records.

Note: Effective August 13, 2014, with our California employment-purpose disclosure/ authorization form, we will be including a supplemental disclosure/authorization notice as prescribed by the OLSE, to use by San Francisco employers.

March 28th, 2014|Criminal Activity, Employment Decisions|

New law bans California employers from asking about dismissed criminal records

Effective January 1, 2014, SB 530, will ban most California employers from asking employees or applicants about arrests that did not result in conviction (except for arrests for which the individual is still awaiting trial) or about participation in a pretrial or post trial diversion program. Generally, the new law prohibits most employers from asking applicants to disclose, or use as a factor in employment decisions, any information concerning a conviction that has been judicially dismissed or ordered sealed.

December 10th, 2013|Employment Decisions, Legislation|

New Jersey enacts law for social media password protection

Continuing a nationwide momentum of restricting employers’ access to personal social media content of applicants and employees, in August 2013, New Jersey passed Act 2878 joining eleven other states (Maryland, Illinois, California, Michigan, Utah, New Mexico, Arkansas, Colorado, Washington, Oregon, and Nevada) with similar laws. Dozens more states and the U.S. Congress are considering comparable legislation. New Jersey’s new law, which becomes effective December 1, 2013, prohibits employers from asking or requiring that applicants or employees “provide or disclose any user name or password, or in any way provide the employer access to a personal account through an electronic communications device.”

September 12th, 2013|Legislation, Social Media|

Rhode Island is the latest state to “ban the box”

On July 16, 2013, Rhode Island’s SB357 was signed into law, making it the eighth state to pass “ban the box” legislation. Effective January 1, 2014, the law, with a few exceptions, will make it an “unlawful employment practice” for an employer in the state to inquire whether an applicant has ever been convicted of a crime before the ﬁrst interview. In “banning the box” for private employers, Rhode Island follows on the heels of Hawaii, Massachusetts, and Minnesota, as well as the cities of Seattle, Buffalo, Philadelphia, and Newark. And many more jurisdictions have already “banned the box” for public employers and public contractors, and even more have some form of the legislation under consideration. Congress too is pondering its federal HR 6220 or “Ban the Box Act” introduced last July, which similar to these state and local laws, would make it illegal for an employer to ask about criminal history in an interview or on an employment application.

July 23rd, 2013|Employment Decisions, Legislation|

Virginia takes workers’ privacy to a new level

Starting July 1, 2013, new Virginia Code §40.1-28.7:4 provides that “employers shall not, unless a listed exemption applies, be required to release, communicate, or distribute to a third-party, any current or former employee’s personal identifying information.”

In this context, “personal identifying information” is defined as a “home telephone number, mobile telephone number, e-mail address, shift times, or work schedule.” Exceptions permitting the disclosure of such information include requirements of federal laws that supersede state statutes, court orders, judicial warrants or a subpoena in a civil or criminal case. Although there is no penalty, the statute establishes a public policy that endorses protection of the personal identifying information and could be used in a lawsuit against employers.

June 27th, 2013|Educational Series, Legislation|

Nevada is the latest state to restrict employment-purpose credit reports

On May 25, 2013, SB 127 was signed into law adding Nevada to the fast-growing list of states that restrict employment-purpose credit reports. Nevada’s new law, which goes into effect October 1, 2013, follows closely the recently enacted legislation in Colorado. Eight other states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington) have similar laws that limit the employers’ use of credit history in personnel decisions. Aggressive legislative efforts are likely to continue, as Florida, New Jersey, and Pennsylvania are considering similar legislation. But the most restrictive bill yet is pending before the New York City Council. It would prohibit employers from using credit reports in hiring except in few instances where such checks are required by law.

June 5th, 2013|Employment Decisions, Partnership|

Minnesota becomes the latest state to restrict employment criminal checks

On May 13, 2012, Minnesota became the latest state to restrict criminal background checks for employment purposes with its Criminal Background Check Act (S.F. No. 523). Under the new law, which will go into effect on January 1, 2014, public and private employers may not inquire about, consider or require disclosure of an applicant’s criminal history until after the applicant has been granted an interview or before a conditional offer of employment is made. Since 2009, Minnesota law prohibited only public employers from asking about criminal records on job applications.

According to a report from the National Employment Law Project (the “NELP”) dated in April 2013, six states and 50 localities have adopted “Ban the Box” legislation. And pending before Congress is the federal HR 6220 or “Ban the Box Act” introduced last July by Representative Hansen Clarke (D-MI-13) which similar to these state and local laws, would make it illegal for an employer to ask about criminal history in an interview or on an employment application.

May 31st, 2013|Employment Decisions, Legislation|

Colorado joins list of states that restrict credit report use for employment

Although the FCRA allows employers to consider credit reports for employment purposes, state laws that are more protective of employee rights trump the federal law. Eight states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington) and at least one locality, the City of Chicago, limit the employers’ consideration of credit history in personnel decisions. And Colorado was just added to this list with its S.B. 18 that was signed into law on April 19, 2013. Aggressive legislative efforts are likely to continue. The most restrictive bill yet is pending before the New York City Council. It would prohibit employers from using credit reports in hiring except in few instances where such checks are required by law.

May 6th, 2013|Employment Decisions, Legislation|

Proposed New Jersey bills restrict use of criminal records in employment decisions

In February 2013, identical bills aimed at reducing employment discrimination against individuals with criminal histories were introduced in the New Jersey Senate (S2586) and the New Jersey Assembly (A3837). Both bills propose the adoption of the Opportunity to Compete Act (the “Act”) which would impose multiple restrictions and requirements on employers in connection with seeking and using criminal background information about job applicants. If the Act is adopted, New Jersey will join a growing list of states, cities, and localities which have passed similar anti-discrimination legislation.

March 29th, 2013|Employment Decisions, Legislation|

Congress questions legality of “The Work Number” operated by Equifax

Seven members of Congress wrote a letter last month to Equifax asking for more information about its employment verification subsidiary, The Work Number, which according to a statement made by Jackie Speier (D-California), “appears to have operated under the radar, with little public awareness of the vast trove of

[payroll and other] sensitive data it was gathering.” Speier asserted that “Equifax needs to explain exactly how it is using this data, and provide evidence that The Work Number does not pose a threat to the privacy of 190 million Americans.”

While companies say that they sign up with The Work Number because it gives them a convenient way to outsource employment verifications, the seven members of Congress are disturbed by the fact that “… this massive database appears to generate revenue using consumers’ sensitive personal information for profit.”

March 29th, 2013|Educational Series|