Written by: Orrick, Herrington & Sutcliffe LLP

Joining New York City, Westchester, and Albany, the Suffolk County Legislature, on November 20, 2018, adopted its own variation of a salary history ban.

Taking effect on June 30, 2019, the Restricting Information on Salaries and Earnings Act (the “RISE Act”) amends Chapter 528 of the Suffolk County Human Rights Law and provides that it is an unlawful discriminatory practice for employers (with four or more employees) or employment agencies (or the employees or agents of either) to:

1. inquire whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits. For purposes of this subdivision, “to inquire” mean to ask an applicant or former employer orally, or in writing or otherwise or to conduct a search of publicly available records or reports.
2. rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process including the offer or contract.

The RISE Act explicitly exempts actions taken to comply with federal, state, or local laws which mandate salary disclosures or verification for employment purposes, and actions taken pursuant to collective bargaining agreements.

Notably absent from the Suffolk salary history ban are the exceptions included in the New York City (discussed here) and Westchester salary history bans. For example, New York City and Westchester permit employers to rely on salary information in compensation decisions where the applicant voluntarily offers the information. And both allow employers to verify voluntarily-provided prior salary information, with Westchester requiring an applicant’s written authorization before an employer can do so. In contrast, the RISE Act makes no mention of what an employer can or cannot do when an applicant voluntarily provides such information. Absent exceptions for, or even a mention of this scenario in the Suffolk legislation, employers faced with an applicant who volunteers current or prior salary information should refrain from relying thereon in compensation decisions for that applicant.

New York employers should also keep an eye on the proposed statewide salary ban. In April 2018, a bill passed the New York Assembly but died in the Republican-held New York Senate. With 2019 ushering in a Democrat-controlled Senate, and Governor Andrew Cuomo already having signed an executive order banning salary inquiries for all New York state agencies, New York might be joining California and a handful of other states in adopting a statewide ban.

Recently, the North Carolina General Assembly enacted “An Act to Amend the Law Regarding a Certificate of Relief For Criminal Convictions” (the “Act”). The Act will become effective on December 1, 2018, and applies to petitions for relief filed on or after that date.

Written by: Jackson Lewis P.C.

Legislators contemplated the Act would assist individuals convicted of certain crimes during their reintegration into society—particularly with regard to employment options. Essentially, when an individual obtains a certificate of relief, which is a court order, many collateral consequences associated with criminal convictions will be eliminated. In addition, the Act provides a defense for employers who may be concerned about negligent hiring/retention claims.

Who Can Petition the Court for a Certificate of Relief?

The Act allows any individual who is convicted of not more than three Class H or I felonies, and any amount it misdemeanors, to petition a court for a certificate of relief, thereby relieving collateral consequences.

What Must a Court Consider?

Once the petition is filed requesting a certificate of relief, the court may either deny or approve it.  The Act outlines the specific factors a court must review in making a decision: (1) the petition, (2) the petitioner’s criminal history, (3) any information provided by a victim or district attorney, and (4) any other relevant information.  In order to grant the petition, the court must find that the petitioner established sufficient evidence of each of the following factors:

1. 12 months have passed since the petitioner completed his or her sentence;
2. The petitioner is working, or seeking to engage in lawful work or activity;
3. The petitioner has complied with all requirements of his or her sentence, including terms of probation;
4. The petitioner is not in violation of the terms of any criminal sentence, or that any failure to comply is justified, excused, involuntary, or insubstantial;
5. A criminal charge is not pending against the petitioner; and
6. Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

A certificate of relief is automatically revoked when an individual is subsequently convicted of a felony or misdemeanor other than a traffic violation.

If the court denies the petition, it must state the specific reasons for denial in the subsequent court order. The petitioner can refile a petition within 12 months of receiving the denial order.

Impact of a Certificate of Relief

Once a court issues a certificate of relief, the petitioner is relieved of some, but not all, collateral sanctions, including: a penalty, disability, or disadvantage, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.

Not all collateral sanctions are relieved by a certificate of relief, however.  Collateral sanctions not relieved by a certificate of relief include: (1) those listed in N.C.G.S. §15A-173.3[1]; (2) those sanctions imposed by the North Carolina Constitution or federal law; and (3) others specifically excluded in the certificate of relief. A certificate of relief does not relieve a person from imprisonment, probation, parole, post-release supervision, forfeiture, restitution, fine, assessment, or costs of prosecution.

Issuance of a certificate of relief also does not result in expunction of criminal history records, nor does it constitute a pardon. It also does not automatically bar an employer from considering relevant past criminal history or relieve a disqualification. However, an administrative agency, governmental official, or court in a civil proceeding may consider a certificate of relief in determining whether a conviction should result in disqualification.

Employers Defense

Employers deal with challenging hiring decisions on a daily basis.  For instance, many employers believe in giving second chances to individuals who have made mistakes.  However, doing so can lead to claims of negligent hiring and/or retention. Regardless, the creators of the Act contemplated this delicate balance by including a legal defense for employers.

In a lawsuit or administrative proceeding alleging negligence (such as negligent hiring or retention claims), a certificate of relief will bar any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise doing business with or engaging in activity with an individual whom a certificate of relief was issued. The key to this defense, however, is that the employer must show that it relied on the certificate of relief at the time of the alleged negligent act. If the employer did not know about the certificate of relief at the time of the alleged negligent act, this defense will not be helpful.

 

[1] A certificate of relief will not relieve collateral sanctions listed under: The Sex Offender and Public Protection Registration Programs Ex offender registration requirements; The Felony Firearms Act; Motor Vehicle License suspension; Ineligibility for the North Carolina Criminal Justice Education and Training Standards Commission;  and ineligibility for employment as a corrections or probation officer, and prosecutor or investigator in either the Department of Justice, or in the office of a district attorney.

Particularly for multi-state employers, the patchwork of disparate laws has become daunting from a compliance standpoint.

Written by Jennifer Carsen, HR Dive

On July 15, 1998, Hawaii became the first state to adopt a fair-chance law applicable to both private and public employers. The law bars employers from inquiring into, or considering, the criminal record of a prospective employee until after a conditional offer of employment has been made.

Since then, 30 other states — and more than 150 cities and counties — have adopted some form of “ban-the-box” legislation or fair-chance law designed to give applicants a shot at getting hired without the stigma of a conviction or arrest record, according to the National Employment Law Project (NELP).

Particularly for multi-state employers, the patchwork of disparate laws can be daunting from a compliance standpoint. So how are they coping? HR Dive spoke with three experienced employment law attorneys to get their insights.

Think nationally and holistically

“About five years ago, I stopped advising employers to parse things out and comply with different state statutes,” said attorney Joe Schmitt, a shareholder in the Minneapolis office of Nilan Johnson Lewis PA. “It’s better to have a national policy regarding background checks that attempts to comply with as many laws as possible.”

Schmitt recommends that employers do the following:

1. Ban the box and don’t require information about a criminal record on the application for employment. In many states, it is still lawful to do so, “but there are so many changes at the state and municipal levels…I don’t believe it is worth the effort to keep abreast and modify the application on a city-by-city or state-by-state basis.”
2. Adopt a policy of considering the criminal record holistically. “When [employers] do eventually get the arrest record — ideally after a job offer is made — they should consider not just what the conviction is, but when it happened, as well as the link between the conviction and the position the person has applied for.”
3. Provide individuals the opportunity to “appeal” if they are turned down due to a criminal conviction. The applicant should be permitted to present, for example, persuasive evidence that he or she has been rehabilitated.
4. Keep abreast of substantive state laws that restrict consideration of criminal records, such as California’s strict limitations on employers’ ability to consider marijuana-related convictions.

Don’t dismiss the box entirely

“I take a highly customized approach [to ban the box],” said attorney Stephen Woods, a shareholder in the Greenville, South Carolina, office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. “If an employer wants to do a one-size-fits-all, the best way to comply with ban the box is to wait until after the conditional offer to ask about criminal history — or even, in some jurisdictions, to review the disclosure and complete the authorization.”

Woods said that while some of his clients say, “let’s just wait until after the conditional offer,” others are forgoing the question altogether and choosing to rely solely on the background check to reveal anything relevant. But that approach comes with its own risks.

“I am not as big a fan of not asking the question at all,” said Woods. “You always want the applicant and the employer to start a dialogue, and I like this dialogue to happen early on.”

Additionally, Woods said, the question is an important test of honesty and veracity on the part of the applicant.

“We still see a ton of people who blatantly lie,” he said. Some think the employer may not run a background check — especially if they are unfamiliar with a particular employer’s hiring procedures — and others may believe the conviction is too old to show up. Barring a relevant expungement or sealing law that permits a negative answer to the question, Woods said, “if they lie about their history, and some do, that’s a red flag.”

Woods also said that true ban-the-box restrictions are not as widespread as some have made it seem. By his count, there are 12 states and 17 localities that have actual ban-the-box rules for private employers — meaning one-size-fits-all may be a broad solution for a problem that so far only exists in a few places.

Remember the purpose behind the law

Sandra Rappaport, a partner at the San Francisco office of Hanson Bridgett LLP, noted that California’s statewide ban-the-box law went into effect this year — and it’s an example of the intent behind these laws.

“It completely prohibits employers from asking about criminal convictions until after a conditional offer,” she said. “But even then, if the employer will deny the job, they must conduct an individual assessment.”

California’s fair chance process, she said, requires that employers provide denied applicants at least five days to respond, as well as a copy of the criminal history and a copy of his or her right to respond to the notice. The applicant can then submit evidence that the history is wrong, that the applicant has been rehabilitated, that there are circumstances the employer should consider and so forth.

Even after that, Rappaport said, “the employer must notify the applicant in writing if employment will still be denied, then provide notice of the appeal process.”

While California’s ban-the-box law is unusually stringent, Rappaport says she gives similar advice to clients all around the country: “It’s now really considered a best practice to articulate legitimate reasons why you will disqualify somebody.”

“The whole idea behind it is that individuals should have a fair shot at jobs,” she added. “It’s not always the case that somebody who’s been convicted is going to end up engaging in misconduct or being a bad performer. And they won’t have a chance to prove themselves unless you hire them for a job.”

When there are so many companies fighting for your business, it can be hard to know who is the right fit for you. You would think that the background check process is a fairly standard practice; that no matter what company you go with, you’ll get the same results, but this is not the case. Background checks are very important in the hiring process because you need to know who you are letting into your business. It is a huge responsibility both to whomever is doing the hiring, and to the consumer reporting agency. It can be a very stressful process, so we want to make it as pain free as possible. Here are just a few of the ways SimpliVerified can help make this process easier.

We strive to make sure you always have quality and accurate information. There is so much information that comes back from each county search, so we filter it and provide only the information that you need to know. We never  provide information on cases that have been dismissed to keep these offenses from biasing your decision. We know that it can be confusing to read case information, there are a lot of legal terms, so we hope this helps businesses be able to see what they need easily in order to make the best decision for the company.

We offer packaged products for our clients to help make the ordering process easier and our state of the art software is very user friendly for viewing reports. You can view each report as it’s completed, no need to wait for the entire order to be processed. Some counties can take a little longer than others to come back with results, however our processors are always on top of reviewing reports as soon as they are in to keep you updated when we are. Our software also allows our customers to easily send out pre-adverse and adverse action documents to an applicant when they decide someone isn’t a fit for their company. These documents are prewritten so you can rest assured you are following FCRA laws when declining an applicant due to their background. Each company is assigned a processor that is happy to answer all questions or concerns. They know everything about your account and will be the person processing every order you submit.

Most CRA’s will only run a national report because, in theory, it covers every state and ideally every county. However, we always recommend running counties in addition to the national report. Not all counties report updated information to the national database and some don’t report at all, therefore some information that comes back on the national can be inaccurate. County searches will only show crimes in that specific county but it is always up to date. This is why we prefer to run counties to verify any charges that show up on the national report and recommend running any county the applicant has lived in for the last seven years.

Does your company do pre-employment drug screening as well? We offer drug testing along with our background checks to streamline these two hiring processes. Our partnering facilities use electronic donor passes and have thousands of locations to make it more convenient for your applicant. You can choose from instant tests, to hair follicle, even to physicals depending on the needs of your company. The results are submitted directly into our system so you can view the results at the same time as their completed background check.

If all of this wasn’t enough, we have an expungement program to help those that don’t get the job because of their background report. Some of our customers appreciate that we offer this because they know that even though someone wasn’t a fit for their company, we are going to try to help the applicant clear up their background so they can find work easier in the future. For more information on this topic, read our blog on the expungement process.

Here at SimpliVerified, we want to give our customers the best pricing and the most accurate information, because we know how expensive the hiring process can be and we want you to be able to make an informed decision about your new hire.