California Amends Law Preventing Use of Juvenile Criminal History for Employment

Assembly Bill 1843 is an amendment to California Labor Code 432.7 that includes additional restrictions on employment-based inquiries into an applicant or employee’s juvenile criminal history. The new bill, effective January 1^st of next year, restricts employers from:

• Asking an applicant to disclose, either in writing or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the individual was subject to the process and jurisdiction of juvenile courts/ law.
• Seeking from any source whatsoever, or using, as a factor in determining any condition of employment (e.g., hiring, promotion, termination, decisions related to a training program, etc.), any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the individual was subject to the process and jurisdiction of juvenile courts/law.

It is important to note that previous sections of California Labor Code 432.7 allowed employers to look into certain convictions and use them in adverse action decisions if federal law required. The amendment will prevent employers from making decisions based on those preexisting portions of the labor code. This amendment may cause a conflict with preceding federal laws and/or other legal requirements that require specific screening standards for employment. We will keep an eye on this bill as it goes into effect and examine how this conflict will be handled.

You can read Assembly Bill 1843 in full here.

LA Bans the Box

On November 30th, 2016, the Los Angeles City Council passed the Fair Chance Initiative prohibiting most employers from inquiring about applicants’ criminal histories until a position at the company has been offered. The notion was approved by a 12-1 vote, making Los Angeles another of many to instill this new law.

The city’s ordinance will apply to all employers who have at least 10 or more employees on staff, with the exception of careers in fields like law enforcement and child care. The decision was made to join a growing movement in helping those with criminal records find suitable employment despite their pasts. There are now 24 states with over 150 cities who have adopted this bill.

The Fair Chance Initiative was started by the Los Angeles based organizations Homeboy Industries and All of Us or None. Both groups provide support to previously incarcerated persons, fighting for their rights to rejoin the workforce in the United States; a very applicable stance to the ‘ban the box’ law. According to the National Employment Law Project, a 2011 study discovered that reentering 100 formerly incarcerated people back in the working world would increase their lifetime earnings by $55 million. This would also save $2 million annually be keeping these employees out of the criminal justice system.

However, as mentioned in a previous blog of ours, these policies bring forth the risk of increasing discrimination, as employers who are not legally allowed to research an applicant’s criminal history may consider denying him or her because of ethnicity a loophole. This fallback on stereotyping can have an adverse affect on those seeking jobs following incarceration, but the question of morality remains. Implementing the ‘ban the box’ law has led to a large increase in the hiring of those with criminal records despite these claims.

Now that Los Angeles has joined many cities around the country in this movement, the City’s Office of Wage Standards is expected to enforce this ordinance. If any violation of the new bill is reported, the applicant filing the report may receive up to $500, so long as the allegations are upheld.

For more information on the rising ‘ban the box’ movement, visit the National Employment Law Project’s guide here.

California Assembly Bill 1289: Mandatory Background Checks for TNC Drivers

Assembly Bill 1289, passed on September 28^th, has made background checks mandatory for drivers working for a Transportation Network Company (TNC) in California. This bill applies to both employees and independent contractors.

What is a TNC?

TNCs are organizations that connect paying passengers with drivers who provide transportation using their own non-commercial vehicles. All parties connect to the service via website and mobile apps. These are companies like Uber and Lyft.

Background check requirements for TNCs:

•         A multi-state and multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation; and
•         A search of the United States Department of Justice (USDOJ) National Sex Offender Public website

A TNC shall not contract with, employ, or retain a driver if he/she meets the following criteria:

•         Is currently registered on the USDOJ National Sex Offender public website
•         Has been convicted of a violent felony
•         Has been in violation of Section 11413, 11418, 11418.5 or 11419 of the Penal Code

A TNC shall not contract with, employ, or retain a driver if he/she has been convicted of any of the following offenses in the last seven years:

•         Misdemeanor assault or battery
•         Domestic violence offence
•         Driving under the influence of alcohol or drugs
•         A felony violation of Section 18540 of the Elections Code

Assembly Bill 1289 goes into effect on January 1, 2017. We recommend that each Transportation Network Company review their background screening procedure to ensure compliance with the new bill as well as the Fair Credit Reporting Act and other local laws. Each violation of the new law will result in fines between one and five thousand dollars per incident.

To view Assembly Bill 1289 in full, click here. 

Vermont the Latest State to Ban the Box

Governor Peter Shumlin has signed a bill to remove questions regarding criminal history from employment applications. The bill, which Governor Shumlin says, “will break down barriers and give Vermonters who have paid their debt to society a fair chance to find a good job”, makes Vermont the 23^rd state to enact a state-wide ban-the-box policy. While each bill that has been passed is a part of the ban-the-box movement that continues to sweep the nation in 2016, each bill differs in who it applies to and at what point it is legal to use a background check.

So what does this mean for employers in Vermont?

It means that job applications for both state and private employment cannot include the infamous question, “Have you been convicted of a crime?” But that is not all. The bill comes with the stipulation that inquiry into an applicant’s criminal history cannot take place until after the applicant has been deemed otherwise qualified for the position. The executive order does not apply to law enforcement, correctional facilities, or “other sensitive positions”.

The bill takes effect on July 1, 2017. The new law makes Vermont the ninth state to extend the fair-chance policy to both public and private employers. The motivation behind the policy, according to Governor Shumlin, is to decrease recidivism and allow those with a criminal history to properly reintegrate into society. Failure to comply with provisions laid out in the bill may result in a civil penalty of up to $100 for each violation.

To view the bill in full, click here.

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S2Verify is an NAPBS-accredited process innovator in the application of integrated hiring solutions and employment screening technologies. S2Verify’s services cater to the needs of organizations that rely on employee and volunteer information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand, and use by authorized personnel. Headquartered in Atlanta with Operational Support Centers in Miami and Chicago, the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of applicant tracking, drug screening, and criminal background checks that address business and consumer needs either poorly met or not met at all by leading, nationally-branded providers of mass-market background screening solutions. The focus on addressing shortcomings in the background screening industry attributed to S2Verify’s inclusion in the Inc. 500’s list of fastest growing companies in the United States.

The State of Oregon Has Banned the Box

House Bill 3025 was signed on June 25^th, making Oregon the 18^th state to ban the box. Ban the Box legislation originally referred to removing the check-box on an application that required applicants to indicate if they have a history of criminal convictions. Most of the new bills referred to as ban the box legislation have stipulations beyond the exclusion of a check-box on the application.

HB 3025, continuing the trend sweeping the United States, goes a step further by prohibiting employers from demanding the disclosure of criminal convictions prior to an initial interview. The bill applies to all employers in Oregon outside of a few exceptions and will take effect in January 2016. Exceptions include employers that are a part of the criminal justice system, law enforcement agencies, and employers seeking non-employee volunteers.

You can view the bill in its entirety here.

For an up-to-date look at ban the box legislation and how it will affect your business, go to NELP.org

Ban-the Box Update (August 2014)

Many cities and states are adopting or expanding "Ban the Box" regulations. Here is the latest.

San Francisco

                Today, August 13^th, San Francisco’s Fair Ordinance goes into effect. They certainly are not the first to enact what many are calling “Ban the Box” legislation. This ordinance applies to both the public and private sector. San Francisco employers need to ensure they are up to code on their background screening.

Illinois

                Another change employers should be aware of is Illinois’ expanded “ban the box” legislation that now includes private employers. This makes Illinois the fifth state in the nation to require both public and private employers to limit inquiry about convictions. The other states are Minnesota, Hawaii, Massachusetts, and Rhode Island. Illinois is calling their “Ban the Box” legislation the Job Opportunities for Qualified Applicants Act. It takes effect on January 1, 2015. 

New Jersey

                Governor Chris Christie signed the Opportunity to Compete Act on August 11^th. This law expands New Jersey’s “Ban the Box” regulations to the private sector, much like Illinois’ Job Opportunities for Qualified Applicants Act. It is set to take effect on March 1, 2015. This makes New Jersey the 13^th state to adopt “Band the Box” legislation, and the 6^th state to expand the regulations to the private sector.

“Ban the Box” legislation is spreading like wildfire. As a background screening provider, the only thing we can do is keep you updated on the latest employment screening standards.

While S2Verify cannot provide legal advice, we can suggest you discuss with counsel, the following guidelines:

•          Do not ask about arrests that did not lead to a conviction

•          Do not ask about an individual’s conviction history at the beginning of the hiring process (such as the application)

•          Only after a conditional offer has been made can one ask about criminal history

•          Only convictions related to the job can be considered in the decision to deny employment

E-Verify Update

  While it is not mandatory nationwide at this time, there has been recent legislation making E-Verify a requirement in some states. It is important, as an employer, to be aware of your state’s requirements and which businesses it applies to. Each state has a different policy.

A total of 20 states require the use of E-Verify for at least some public and/or private employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia.

Recent Legislation:

Georgia: The Georgia Illegal Immigration Reform and Enforcement Act of 2011 (HB 87) mandates that private employers with over 10 employees register with and use E-Verify. The mandate’s first effective date was January 1, 2012 for businesses with 500+ employees. On July 1, 2013 the requirements became effective for businesses with 10+ employees. 

North Carolina: The North Carolina General Assembly enacted HB 36 that required businesses in the state with 25 or more employees to use E-Verify on all new hires. North Carolina, much like Georgia, has been using a phased approach. HB 36 became active in October 1, 2012 for employers with 500+ employees. As of July 2013, it now applies to employers with 25+ employees.

Pennsylvania: SB 637, enacted in July 2012, requires all public works state contractors and subcontractors with contracts worth $25,000 or more to enroll and use E-Verify by January 1, 2013.

Tennessee: The Tennessee Lawful Employment Act (HB 1378) requires all employers with more than 5 employees to use E-Verify. A phased in approach was used, starting with private companies with 500+ employees in January of 2012. The Act applies to employers with 6+ employees as of January of 2013. The Act also requires employers to maintain documentation of non-employees paid directly by the employer in exchange for labor or services.

Below is a list of specifics for each state that requires the use of E-Verify for employment eligibility verification.

	State	Citation	Year Enacted	Applies to:	Penalties:
1	Alabama	HB 56 HB 658	2011 2012	All employers (phase in) Contractors and subcontractors; prime contractors not liable for subcontractor complying with E-Verify unless they know of the violation	Cancellation of state government grants or incentives and suspension or revocation of business license up to 60 days, and possible debarment from state contracts. A business license can be permanently revoke on a second offense
2	Arizona	HB 2779 HB 2745	2007 2008	All employers	Temporary AZ business license suspension for 10 days upon first offense; permanent AZ business license suspension upon second offense
3	Colorado	HB 1343 SB 139 SB 193	2006 2008 2008	State agencies, contractors	Contractors may become ineligible to receive state contracts. The Colorado Secretary of State’s Office will post the names of vendors using contractors who knowingly employ illegal aliens to perform work on any public contracts for the state
4	Florida	EO 11-02 EO 11-116	2011 2011	State agencies, contractors, subcontractors	Possible denial of future county projects
5	Georgia	SB 529 HB 2 SB 447 HB 87 HB 742 HB 1027	2006 2009 2010 2011 2012 2012	Public employers, contractors, subcontractors with 500+ employees (phase in)	Failure to comply could result in the suspension or denial of a business license, occupational tax certificate, or other document require to operate a business in the state
6	Idaho	EO 2009-10	2009	State agencies, contractors	Immediate cancellation of the contract, reversion of unspent public funds, and monetary penalties. Every contract by a state agency for a state project or service shall include appropriate civil penalties for violation this executive order
7	Indiana	SB 590	2011	State agencies, contractors	State agencies or political subdivisions may terminate a public contract if the contractor knowingly employs an unauthorized alien
8	Louisiana	HB 342 HB 646 HB 996	2011 2011 2012	State contractors Option for private employers	Failure to complete the affidavit or use E-Verify as required would cause the work to be terminated and bar the contractor from future bidding or contract work for up to three years. HB 646 makes it a state offense to employ unauthorized workers and provides E-Verify as a defense to any charges brought under HB 646
9	Michigan	HB 5365	2012	State agencies, contractors, subcontractors	Employers who do not use E-Verify may have all state contracts terminated and become ineligible for public contracts for three years, and/or may have licenses, permits, or certificates suspended for one year.
10	Mississippi	SB 2988	2008	All employers (phase in)	Employers who do not use E-Verify may have all state contracts terminated and become ineligible for public contracts for three years, and/or may have licenses, permits, or certificates suspended for one year.
11	Missouri	HB 1549 HB 390	2008 2009	Public employers, contractors, subcontractors	A violating company’s business permit and licenses shall be suspended for 14 days. Upon the first violation, the state may terminate contracts and bar the company from doing business with the state for 3 years. Upon second violation, the state may permanently debar the company from doing business with the state.
12	Nebraska	LB 403	2009	Public employers, contractors	Loss of eligibility for state contract work and/or state economic incentives.
13	North Carolina	SB 1523 HB 36	2006 2011	State agencies, universities Localities, all employers (phase in)	Failure to comply with HB 36 can result in civil fines ($10,000+) and notification to U.S. Immigration and Customs Enforcement and local law enforcement agencies.
14	Oklahoma	HB 1804	2007	Public employers, contractors, subcontractors	Ineligibility to receive a state contract(s).
15	Pennsylvania	SB 637	2012	Public contractors, subcontractors	First violations incur a warning letter detailing the violation, posted on the website of the Department of General Services of the Commonwealth. On a second violation, the contractor is debarred from public work for 30 days. Upon subsequent violations, the contractor is debarred from public work for 180-365 days. In the case of willful violation, the contractor is debarred from public work for a period of three years. Contractors will also incur a penalty of $250-$1,000 per violation.
16	South Carolina	HB 4400 SB 20 HB 4813	2008 2011 2012	Public employers, contractors (phase in) Private employers Establishes a 24-hour hotline to report E-Verify violations	Possible civil penalty of up to $1,000 per violation and the revocation of the business license.
17	Tennessee	HB 1378	2011	All employers with 6+ employees (phase in)	Employers can incur a penalty of $500 plus an additional $500 for each employee not verified for a first violation; $1,000 plus and additional $1,000 for each employee not verified for a second violation; and $2,500 plus and additional $2,500 for each employee not verified for subsequent violations.
18	Utah	SB 81 SB 39 SB 251 HB 116	2008 2009 2010 2011	Public employers, contractors, subcontractors Private employers with more than 15 employees	Ineligibility to enter into a state contract(s). A private employer may be held civilly liable under state law in a cause of unlawful hiring of an unauthorized alien.
19	Virginia	HB 737 HB 1859 SB 1049	2010 2011	State agencies Public contractors, subcontractors with more than 50 employees	Any employer, including contractors, found to be in violation shall be debarred from entering into a contract with any agency of the Commonwealth for up to one year. The employer shall be released from debarment upon registration and participation in E-Verify. A contractor who fails to enroll and participate in E-Verify may be denied prequalification for contracts.
20	West Virginia	SB 659	2012	Public Employers, contractors	Loss of eligibility for state contract work and/or state economic incentives.