It’s like some weird inversion of the (itself bad) big-city trend toward “ban-the-box” laws restricting private employers’ right to ask about criminal records: Amherst County, Virginia, has passed a law under which the county can revoke the business license of any business that employs a convicted felon, or one convicted of a misdemeanor involving “moral turpitude.” [Eugene Volokh]
Posts Tagged ‘criminal records and hiring’
NYC bans criminal record questions before job offer
The so-called ban-the-box movement, which aims to curtail what it sees as improper discrimination against job applicants with criminal records, claims one of its biggest victories yet at the expense of private employers, with strong support from New York City’s left-leaning City Council. [Ford Harrison]
More: NYU lawprof James Jacobs, author of The Eternal Criminal Record, in a Cato podcast with Cato’s Tim Lynch (more) and guestblogging at Volokh Conspiracy in February first, second, third, fourth, fifth posts.
EEOC roundup
- “Courts remind EEOC again: Background checks don’t equal racism” [Todd Lebowitz, The Hill; my take on EEOC v. Freeman]
- Another lesson of Old Dominion (boozing truck driver) verdict: employers’ “open door” grievance policies may harbor potential liabilities [Jon Hyman]
- Caseloads: “Three Observations about the New EEOC Statistics” [Daniel Schwartz]
- “Employers seek to halt EEOC’s efforts to drum up plaintiffs for its ‘Onionhead’ lawsuit” [Hyman]
- Reform bills in House hopper include HR 548 (protects employer use of credit or criminal records), HR 549 (requires vote of commission to approve litigation against multiple defendants or over systemic/pattern-and-practice discrimination), HR 550 (requires disclosure of results of litigation that have reached judgment; requires certification that pre-filing conciliation has reached impasse, and allows judicial review of EEOC conduct during conciliation) More: Hearing Monday on these three and H.R. 1189, “Preserving Employee Wellness Programs Act”;
- “EEOC’s Strange War Against ObamaCare And Employer Wellness Plans” [Eric Dreiband]
- Equal Employment Opportunity Commission has “invited the public to comment on ‘significant existing EEOC regulations to determine whether they should be modified, streamlined, expanded or repealed,'” comments period ends April 20 [Insurance Journal; address to Public.Comments.RegulatoryReview @ eeoc.gov]
EEOC set back on criminal record check case, again
This time it’s the Fourth Circuit, upholding a trial judge, finding “pervasive errors and utterly unreliable analysis” in the expert reports submitted by the Equal Employment Opportunity Commission in the case of EEOC v. Freeman. I’ve written it up at Cato at Liberty, where I also recommend, as providing something of a more balanced view of the criminal record hiring issue, a briefing report from the U.S. Commission on Civil Rights.
Labor and employment roundup
- Jury convicts Ironworkers Local 401 boss in union violence case [Philadelphia Inquirer, CBS Philly, earlier here, etc. on Quaker meetinghouse arson and other crimes] Pennsylvania lawmaker proposes to end unions’ exemption from laws defining crimes of harassment, stalking, threatening [York Dispatch; more on exemption of unions from these laws]
- Emergent regime under federal law: if you’ve ever offered light duty to a disabled worker or returning injured worker, you’d better offer it to pregnant worker too [Jon Hyman]
- Everything you know about company towns is wrong [Alex Tabarrok]
- “The EEOC issues you’ll want to keep an eye on in 2015” [Littler Mendelson via Tim Gould, HR Morning]
- Sued if you do: employers struggle to navigate between government rules encouraging, penalizing hiring of applicants with criminal records [WSJ, paywall] “Watch Your Back: The Growing Threat of FCRA Background Check Class Actions” [Gregory Snell, Foley & Lardner]
- “Nearly 30 Percent of Workers in the U.S. Need a License to Perform Their Job: It Is Time to Examine Occupational Licensing Practices” [Melissa S. Kearney, Brad Hershbein and David Boddy, Brookings via John Cochrane]
- “The Effect of Mandatory Sick Leave Policies: Reviewing the Evidence” [Max Nelsen] “Popularity of Obama’s paid sick leave proposal depends on workers not realizing it ultimately comes out of their paychecks.” [James Sherk]
EEOC to court: never mind whether we use background checks too
Sean Higgins, Washington Examiner:
The Equal Employment Opportunity Commission told a district court that it should not have to reveal its own policies regarding criminal background checks because that information is not relevant to the discrimination cases it files against private companies.
Background from Jon Hyman, Ohio Employer’s Law Blog:
This argument [advanced by automaker BMW, whose policies the EEOC is challenging] is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:
If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.
Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.
And a Sept. 17 House subcommittee hearing on EEOC adventurism, reported at Employee Screen, includes this on possible reforms:
Proposed legislation discussed at the hearing included H.R. 4959, the “EEOC Transparency and Accountability Act”, which would require the EEOC to maintain up-to-date information on its website regarding charges and actions brought by the EEOC; H.R. 5422, “Litigation Oversight Act of 2014”, which would require the EEOC to approve by a majority vote to begin or intervene in litigation involving multiple plaintiffs or systemic discrimination; and H.R. 5423, “Certainty in Enforcement Act of 2014”, which would protect employers from EEOC action in cases that specifically involve criminal background checks required by state or local law. …
[The subcommittee chair, Michigan Republican Rep. Tim] Walberg noted that 19 stakeholders representing a wide variety of constituents signed a letter supporting all three bills, which included the National Association of Professional Background Screeners (NAPBS), SHRM, and other professional, healthcare, retail and food service organizations.
Labor and employment roundup
- Court dismisses case against CVS in which EEOC had sought to redefine standard severance confidentiality provisions as unlawful retaliation [Jon Hyman, Daniel Schwartz, earlier here and here]
- Temp-agency jobs brought in-house: “The NLRB Forces CNN to Rehire Workers Terminated Over a Decade Ago” [Alex Bolt, Workplace Choice]
- “NLRB may encourage your employees to file OSHA, FLSA claims too” [Eric B. Meyer, Employer Handbook] “You’re NOT Paranoid — The Agencies ARE Ganging Up” [Dabney Ware, Foley & Lardner]
- “The U.S. Department of Labor claims it can’t come up with the cash to fully reimburse Oregon farmers for the $220,000 it unlawfully coerced from them.” [Capital Press, Oregon] House committee flays department over use of “hot goods” orders to arm-twist growers of perishables on labor issues [committee, CQ via Dunn Carney, The Grower]
- Sauce for gander: if left can push labor ordinances at county and municipal level, supporters of right-to-work laws might do the same thing [James Sherk and Andrew Kloster, Heritage]
- “I wonder how large the overlap is between people who want Ray Rice banished from NFL forever and those who want to ‘ban the box'” — @Toirtap
- Jacob Huebert on the Harris v. Quinn decision [new edition of Cato Supreme Court Review]
September 2 roundup
- Police have traced the crime wave to a single micro-neighborhood in the California capital [Sacramento Bee]
- “Adam Carolla Settles with the Patent Trolls” [Daniel Nazer/EFF, Reason, related eight days earlier and previously] eBay takes on Landmark in the E.D. of Texas [Popehat]
- Frank Furedi on law and the decline in childrens’ freedom to roam [U.K. Independent]
- On “ban the box” laws re: asking about job applicants’ criminal records, it’s sued if you do, sued if you don’t [Coyote]
- Fake law firm websites in U.K. sometimes parasitize the real ones [Martha Neil, ABA Journal]
- What C. Steven Bradford of the blog Business Law Prof reads to keep up (and thanks for including us on list);
- As applications to renounce U.S. citizenship mount, many related to FATCA, our government hikes fee for doing so by 422% [Robert Wood, Forbes]
NYC: “‘Ban the Box’ bill worries businesses”
Lawyers are warning that a bill to restrict consideration of criminal records in business hiring now pending in New York City would be even more burdensome to business than similar bills enacted in other cities and states, applying, for example, to businesses with as few as four employees, a lower threshold than usual. [Crain’s] The bill prohibits inquiry about criminal record until after a provisional job offer is made, at which point a reluctant employer must withdraw the offer, painting a large “Sue Me” target on its chest.
To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, [Reed Smith’s Mark] Goldstein said….
Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time….
In the bill’s current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.
More: Nick Fishman, Employee Screen on unusually burdensome provisions of San Francisco “ban the box” law (“Employers can’t just sit back anymore and think that these laws are benign. At the least, they are creating an administrative nightmare. At worst, the plaintiff’s attorneys are standing by waiting for your first misstep.”)
Labor and employment roundup
- “The tie that binds public employee unions and Wall Street” [Daniel DiSalvo] “Unions Manipulate New York City’s Public Pension Funds To Punish Their Enemies” [NYT via Jim Epstein, Reason]
- Illinois latest state to pass “ban the box” law restricting employers’ inquiries on criminal records [Workplace Prof]
- Two ex-football pros file suit claiming union conspired with owners on concussions [Bloomberg]
- Average Illinois public retiree’s pension rapidly narrowing gap with average salary of worker still on job [Jake Griffin Daily Herald via Reboot Illinois] By 2006, 1,600 California prison guards were making $110K+, plus more on tendency of state/local government pay to outrun private [Lee Ohanian via Tyler Cowen]
- Great moments in employment law: Seventh Circuit says other employees’ having sex on complainant’s desk not hostile work environment when not targeted at gender [Eric B. Meyer]
- Next step signaled in SEIU fast food protest campaign: unlawful property occupations [AP, Chicago Tribune, arrests in May]
- Trial lawyer win: Obama federal-contractor fiat will forbid pre-dispute agreements to submit bias claims to binding arbitration [AP, AAJ jubilates]