rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

JaileDAs the General Assembly session heats up, several legislators are calling for passage of the so-called “Ban the Box” legislation.

Versions of this have been floated for years, but one legislator called this year’s bill the “most important bill” to come out of the legislature this year.

So, that means that employers ought to keep an eye on it as it passes through the process.  CT News Junkie wrote a lengthy piece on the bill where I am quoted.

Part of the bill on “ban the box” won’t be that controversial among some employers, but the bill goes beyond that in other provisions too.

The bill (H.B. 5237) contains provisions that would prohibit employers from asking about past criminal convictions until after a conditional offer of employment is made.

There are exceptions, however. For example: an employer may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction if such disclosure is required under any applicable state or federal law.

Thus, school districts should still be able to ask about criminal convictions because Connecticut law requires them to do so.

In the CT News Junkie’s article, I expressed concern that the bill would just one more type of regulation for employers. In addition, the bill would not stop employers from considering some criminal convictions anyways.

“Ban the box” legislation (named for the box where employees must check off whether they have any prior convictions) has been making its way through various states.  Overall, if you support the notion that prison is about rehabilitation, then older crimes ought to be less of a concern to employers.

But one of the things that has been underreported about the bill is that it would also go much further that some of those states.  Compare, for example, Massachusetts.  This is where employers should be concerned.

For example: take a look at subparagraph (d):

No employer or employer’s agent, representative or designee shall deny employment to a prospective employee solely on the basis that the prospective employee had … (2) a prior arrest, criminal charge or conviction for a misdemeanor if two years have elapsed from the date of such arrest, criminal charge or conviction, (3) a prior arrest, criminal charge or conviction for a felony if five years have elapsed from the date of such arrest, criminal charge or conviction, ….

So, the plain meaning of this proposed language would prohibit private employers from denying employment based “solely” on a past criminal conviction, no matter how severe, so long as it was outside the two-year for misdemeanor and five-year for felony timeframe.

This is where things get interesting. Suppose an applicant was convicted of negligent homicide charges in January 2011 from a drunk-driving incident.  It was not the first time of a DUI and the person serves five years in jail. That person was just released in January 2016.

Now suppose that the applicant applies to be a warehouse supplier with occasional driving duties.  Can the employer still refuse the hire the person even though they were released from prison last month and had engaged in an activity directly related to a job function (driving)?

Under the present language of the statute, there would obviously be a question as to what “solely” means.

Regardless, this type of consequence is one that has been overlooked in the discussion about the legislation thus far.

A public hearing on this bill was originally scheduled for today but a discussion of the bill has been put off to an undetermined committee meeting hearing date.

The CBIA has expressed some other reservations about the bill here.

Hopefully, legislators will take a look at this provision and others, and review the unintended consequences that flow from well-meaning intentions.

When I made predictions/wishes for 2015 at the end of last year, I offered up one on what the Connecticut General Assembly might do:

My Prediction: We’ll see a new rule or two, but with all the mandates that have been passed in the last four years, I expect there to be more bluster from politicians, but that we’ll actually see a bit less interference when all is said and done — at least for now.

There still some time left in the legislative session, but I’m getting increasingly pessimistic on this one.

generalassemblyIndeed, if anything, it seems from the bills being proposed that even more legislation is on the horizon that could take Connecticut into places no state has gone before. (Cue the Star Trek theme.)

For employers, this should be a major cause for concern. Because if you think that the amount of regulations and wage pressures that the state has been placing has been overbearing, the bills being proposed suggest that you haven’t seen anything yet.

Let’s go through some of them:

Legislation backed by labor advocates this year seeks to fine big corporations like Wal-Mart $1 per hour for each employee paid $15 per hour or less. The fiscal note estimates that about 146,710 of the 743,328 employees who work for companies with at least 500 employees would be covered under the bill. The bill would result in a revenue gain to the state of up to $152.6 million in 2016 and $305.1 million in future years.

A similar bill is up for consideration in the House, reports to the CBIA.

  • Employers have often being paying unemployment taxes that seemingly go into an abyss. Indeed, already they pay some of the highest taxes in the nation in this area.  As my colleague, Henry Zaccardi pointed out during his testimony at the legislature, reforms are needed.  But we’ve seen this before and unfortunately, it seems unlikely that such reforms will be adopted which would make the trust funds more solvent.  As he testified:

I understand the need for a safety net like a UC Trust Fund, but when it goes broke and employers are leaving the state, we need to do a better job of balancing [the methods we use to keep the safety net from breaking].

There are other bills out there too that would also push the influence of labor unions into the school curriculum as well.  Senate Bill 910 is back again, and would require schools to teach about “worker history and law, including organized labor, the collective bargaining process and existing legal protections in the workplace”.

I’ve also heard rumblings, as I’ve noted before, about a proposed bill being floated that would make substantial changes to the CHRO process.

So much for 2015 being a quiet year for employers. Will any or all of these get passed? Stay tuned. The next two months promise to be a wild ride.

Over the last few weeks, I’ve been seeing more tweets from human resources types and mainstream reporters using the phrase “wage theft”.  Two recent examples? William Tincup (who runs the popular online DriveThruHR show that I appeared on a while ago) recently tweeted:

And The New York Times labor reporter, Steven Greenhouse yesterday tweeted:

Yes, even The New York Times Editorial Board is beginning to use the term with surprising carelessness suggesting “law enforcement officials” (a term typically reserved for police officers, not Department of Labor officials) routinely use it.

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.

Or as Mandy Patinkin’s character in The Princess Bride said: You keep using that word. I do not think it means what you think it means.

What DO I mean? Well, think of the word, “theft” and most of us think of the intentional taking of something that belongs to someone else. Like your jewelry, or your iPhone. Even your company’s trade secrets.

Continue Reading “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means

In various posts, I’ve talked about how there is a slow but increasing trend to encourage employers to “ban the box” when it comes to job applications. That catchy (yet non-descriptive phrase) refers to a checkbox that is often found on job applications that asks applicants if they have any criminal convictions.

The news this week on that issue is that Target is the latest big employer to adopt such a  practice.    This is also in response to the EEOC’s guidance from 2012 strongly encouraging employers to eliminate the practice. 

It’s quite likely that the Connecticut General Assembly will also revisit the issue in the upcoming 2014 legislative session.

For employers, it’s important to note that banning the “box” does not mean that employers shouldn’t consider past convictions at all in determining an employee’s eligibility for employment.  Rather, like many background checks, the employer in those instances will wait until the applicant reaches the interview stage or gets a conditional job offer to ask about those convictions.

Right now though, EEOC guidance notwithstanding, private employers still remain free (mostly) to use those convictions as they see fit in the hiring process.

Public employers have some additional restrictions, so if you’re using criminal convictions to make decisions about who to hire, make sure you understand all of the limitations, which cannot be fully summarized in a single blog post.

Footnote: In an earlier post last July, I criticized the Office of Legislative Research for a report that I thought did not accurately state the status of the law in the area. I’m pleased to report that the OLR has updated their report to better reflect the status and I strongly recommend it as further background on this important subject.

The EEOC yesterday released important new guidance for employers on the use of arrest and conviction records by employers under Title VII.  You can read the guidance here as well as a short question-and-answer document too. 

For employers in Connecticut, this new guidance only adds to the state-specific rules we have here in state and should leave most employers scratching their heads about yet another goverment regulation on something that had previously been cleared for use.

You can read my prior posts about the use of criminal records in Connecticut here, here and here.

The EEOC guidance doesn’t go as far as some has feared by banning background checks entirely but it still suggests a plan of action that will be onerous for many employers. 

Now, you may be asking how the EEOC is even involved in this issue given that their realm is typically discrimination cases.  But the EEOC says that they are concerned about two types of actions which may violate federal law. 

There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”). First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

 How can employer  consistently meet the “job related and consistent with business necessity” defense?  The EEOC suggests two situations:

  • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job … The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.

Of course, the EEOC also notes that such an individualized assessment is not required by Title VII “in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”

As Jon Hyman, of the Ohio Employer’s Law Blog, is quick to note — some of this guidance may be overreaching by the EEOC.  Nevertheless, employers would be wise to read it and consider implementing some of the best practices suggested by the EEOC. Among them:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

If you’re wondering if the applicant you’re planning on hiring is a closet Justin Bieber fan or a Russian spy, odds are that a background check won’t uncover that information. 

What is may, uncover, however is whether that applicant has been arrested for say, vomiting on a police officer’s kid at a baseball game .

But what are the rules in Connecticut for background checks?

Continuing a weekly summer series of posts on the basics of various laws, background checks in Connecticut just received some publicity due to legislative action. But here are the basics:

1) For public employers, effective October 1, 2010, new rules go into effect on background checks. Unless certain exceptions apply, prior convictions cannot be inquired into until the applicant is deemed "qualified" for the position. This will typically mean that a job offer has been made. You can see the language of the new law (which updates Conn. Gen. Stat. Sec. 46a-80) here.  This is similar, in many ways, to the private workplace as I will discuss below.

But who is a "public employer"? That is governed by Conn. Gen. Stat. 5-270 which defines it as follows: 

"Employer" means the state of Connecticut, its executive and judicial branches, including, without limitation, any board, department, commission, institution, or agency of such branches or any appropriate unit thereof and any board of trustees of a state-owned or supported college or university and branches thereof, public and quasi-public state corporation, or authority established by state law, or any person or persons designated by the employer to act in its interest in dealing with employees, but shall not include the State Board of Labor Relations or the State Board of Mediation and Arbitration.

2) If you’re not a public employer, then these state rules do not apply. Rather, most employers are then governed by the Fair Credit Reporting Act.  As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes:

  • the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
  • the company must make certain representations to the consumer reporting agency from which the report is procured; and,
  • the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

I’ve discussed these requirements in more detail in a 2007 post here.  The federal government has posted some good resources on this topic as well. Keep in mind that there are other rules that may govern the use of investigative reports, or reports in particular industries. Be sure to seek legal counsel if you’re contemplating the use of such reports in your hiring process. 

If you’re interested in the subject further, the Employee Screen blog does a good job of providing frequent updates in this area. 

Always keep in mind the following, though: background checks aren’t perfect.  And distinctions matter: The last thing you want is to confuse a gun conviction with someone who enjoys getting into watergun fights (see above). 

After months of on-again, off-again views, the Connecticut General Assembly yesterday overruled Governor Rell’s veto of House Bill 5207, which changes the way that the State of Connecticut can conduct background checks on job applicants. 

You can view of the text of the bill here.  With yesterday’s vote, it will now go into effect on October 1, 2010.

As I’ve stated previously, this bill does not impact the private workplace, although the rules regarding the use of background checks under federal law may still apply in the private employer context.  For more background, you can also see this earlier post as well. 

The CT Mirror has additional details on all of the veto overrides yesterday

 

 

I can’t say I saw this one coming.

I’ve previously reported on a bill (H.B. 5207) that passed the legislature.  That bill restricts the use of background checks for prospective state employees until after job offers have been made.

Yesterday, Governor Rell vetoed the measure (H/T CT Mirror). In her veto message, she states that while it is "worth in its objective, this bill poses numerous obstacles in practices.  And for all its obstacles, it is uncertain that any benefit will accrue to previously convicted applicants."  She goes on to point out a number of other issues with the bill, including that it fails to take into account the differences in state positions and types of convictions.

As I’ve previously noted, Connecticut law currently has some restrictions for public employers on the use of background checks, but no such restrictions apply to private employers. (Of course, there are federal restrictions under the Fair Credit Reporting Act, so employers who use them should still approach this topic carefully.)

According to a Senate Democratic representative quoted in the CT Mirror, there is a "solid chance" that it will be brought up for an override vote later this month.

 

 

 

Despite initial opposition from the Chief State’s Attorney and other state officials, the  Connecticut House of Representatives today approved a bill that would limit the use of criminal background checks on state workers. I’ve discussed the bill in a prior post.  The text of the bill (with an amendment that passed) is attached

Specifically, the crux of the bill is as follows:

Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by the state or any of its agencies because of a prior conviction of a crime, no employer, as defined in section 5-270, shall inquire about a prospective employee’s past convictions until such prospective employee has been deemed otherwise qualified for the position.

The CT News Junkie website has feedback from the vote.  The bill now moves on to the state Senate for a vote.