Another A Review of the New Los Angeles Ban-the-Box

Tue, January 10th, 2017 - 2:24 pm - By Gordon Basichis

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From our associates at BRB Publications…Larry Henry and Mike Sankey.  Words to the wise about the new laws pertaining to the City of Los Angeles Ban the Box Regulations.

 

A Review of the New Los Angeles
Ban-the-Box
 Los Angeles has joined the long list of cities that have enacted their own version of Ban-the-Box. The new law goes into effect January 22, 2017. In general, an employer [located or doing business within Los Angeles and has 10 or more employees] cannot inquire into the applicant’s criminal history until after a conditional offer of employment has been made.

The ordinance defines a conditional offer of employment as:  “an Employer’s offer of Employment to an Applicant conditioned only on an assessment of the applicant’s Criminal History, if any, and the duties and responsibilities of the employment position.  In the real world, a conditional offer may be “conditioned” on many factors beyond criminal history.  What the Los Angeles ordinance means by “and the duties and responsibilities of the Employment position” is not defined or clear.  Does it include a physical examination?  Drug testing? Education verification/employment verification?  The concern here is whether the law creates a two tier conditional job offer process wherein all other employment screening is done in a phase 1 but only criminal record screening is done in a phase 2 process, along with whatever might fall within the “duties and responsibilities” category.  Once again imprecise language creates problems.

Certain Factors to Consider

The ordinance adopts a similar process as did New York City requiring a “Fair Chance Process” wherein the employer must assess the criminal record history to the job in question.  However, Los Angeles desires to out-do New York City as it requires employers to go through this process twice.  The first round is after the employer receives the criminal record information.  The employer is to consider the criminal record in conjunction with the factors announced by the EEOC when determining of relevance of a criminal record to a job.  We assume that these are the eight factors listed in the 2012 EEOC Guidance, but the ordinance does not spell this out.  This requires a written assessment of that analysis.  At the first stage it is likely that an employer would not have all the information necessary to do such a complete analysis of the 8 factors.  Also provided in the ordinance is that the city may in the future add additional or replacement criteria upon which the employer must make its written assessment.  There is no form for the assessment provided at this time.  Functionally, the first assessment is at the pre-adverse action stage of the FCRA process [include written assessment with Pre-Adverse Action Notice], but these requirements exist whether or not the employer is using a CRA or other third party to obtain criminal record information.

The employer may not take adverse action for 5 business days after the consumer receives the notification they may not be hired due to their criminal record.

After receiving the notification, the consumer can dispute the information, present evidence of rehabilitation or other mitigating information.  The employer is to consider the results of the dispute investigation and any information the consumer has provided.  After receiving this information, the employer must make a second written assessment and provide that to the consumer.  This notification is functionally at the time the adverse action notice would be given under the FCRA, thus for a Los Angeles employer, not only will they provide an adverse action notice, they will also provide the second written assessment.   There is no special notice of rights that need to be provided to the consumer during the application or assessment/notification process.  However, each employer is to post these rights at every one of its work places and in its advertising for jobs.

Exceptions
These requirements do not apply to the following individuals:

  • Those who would be required to possess or use a firearm in the course of their employment.
  • Those who are prohibited by a conviction to hold a particular job in question in employers.

These requirements do not apply to the following employers:

  • That are required, by law, to obtain criminal record history as part of the hiring processes.
  • That are prohibited by law to hire someone who has been convicted of a crime (assume that the “crime” has been identified in the law prohibiting the hiring).

Laws requiring an individual analysis makes the use of a hiring matrix nearly impossible.  A CRA should be very careful in agreeing to adjudicate criminal records under these laws.

To refresh your recollection, here are the 8 factors announced by the EEOC in their 2012 Enforcement Guidance:

  1. The facts or circumstances surrounding the offense or conduct.
  2. The number of offenses for which an individual was convicted.
  3. Older age at the time of conviction or release from prison.
  4. Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.
  5. The length and consistency of employment history before and after the offense or conduct.
  6. Rehabilitation efforts, e.g., education/training.
  7. Employment or character references or any other information regarding fitness for the particular position.
  8. Whether the individual is bonded under federal, state or local bonding program.

 

Best Wishes for a great 2017,

Larry Henry

lhenry@rhodesokla.com

EEOC Rule on Affirmative Action for Individuals With Disabilities in Federal Employment

Thu, January 5th, 2017 - 12:40 pm - By Gordon Basichis

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From the Legal Group, Seyfarth and Shaw LLP

 

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: These new regulations require federal agencies to be “model employers” of individuals with disabilities. As such, they now must take specific steps that are “reasonably designed” to gradually increase the number of employees who have a disability.

We had blogged previously about the Equal Employment Opportunity Commission’s Advance Notice of Proposed Rulemaking (ANPR), inviting the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, and to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).

The regulations — which apply only to federal agencies — that previously implemented the Section 501 affirmative action requirement simply stated that the federal government shall be a “model employer of individuals with disabilities,” and that federal agencies shall “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.”

For the complete article, please click on this link.

Corra Group Sponsors Makaha Bowl Jam 4

Wed, December 21st, 2016 - 10:42 am - By Gordon Basichis

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Corra Group was one of the primary sponsors for Makaha Bowl Jam 4, a skateboarding event held at Van’s Skatepark, in City of Orange, California. The Makaha Bowl Jam features dozens of competitors in a series of events, including Best Tricks and Big Air competition. Attendees are asked to bring canned food in order to feed the homeless during the Holiday Season.

“We are delighted to be one of the sponsors for Makaha Bowl Jam 4, said Corra Group Co-founder, Gordon Basichis. “As kids, Nick Gustavson and I, the owners of Corra Group, used to surf and skateboard along the beaches and byways of Southern California. This is part of our culture.

“I was friends with Larry Stevenson, the founder of Makaha Skateboards, until his passing,” said Basichis. “His son and present owner of Makaha, Curt Stevenson, have been friends for over twenty years. Larry was an innovator and a pioneer in the sport. He was man credited for making the first quality skateboard in the world. His was the first company to use clay wheels, and Larry had the first patent on what was then his world famed kicktail. Sponsoring a Makaha event is like sponsoring a piece of California History.”

Basichis pointed out that Corra Group provides employment screening to a variety of sports and entertainment groups, including product and apparel manufacturers who specialize in producing goods for the sports, like surf ware and skate ware.

For the complete release, please click on this link

Will Ban the Box Measures Spread at the Local Level — Employment Trend 2017?

Wed, December 21st, 2016 - 9:50 am - By Gordon Basichis

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Los Angeles is the latest major city to pass a Ban the Box measure (Ordinance 184652) applicable to private employers. It will become effective January 22, 2017 and will be enforced beginning in July 2017. Other major cities with Ban the Box laws include:

And don’t forget that eight states have Ban the Box measures on their books which are applicable to private employers — HI, IL, MA, MN, NJ, OR, RI, VT.

What is Ban the Box?  In its most basic form it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions).  Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check.  Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. At least in theory that’s what is supposed to happen as a result of Ban the Box measures, which are often referred to as fair hiring policies.

But, nothing in life is simple. Often, Ban the Box measures go beyond simply requiring employers remove the criminal history question from the job application and they include additional requirements, such as requiring

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