This past year, a growing number of states and municipalities banished the Ghost of Christmas Past from haunting job applicants. As a result, employers in those jurisdictions must resolve now to bid auld lang syne to asking applicants about their salary and criminal histories. Employers should take a fresh look at their job applications, and hiring practices, policies and procedures and update them now to remain in compliance in the New Year.
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
Have you ever been convicted of a misdemeanor or felony that was not dismissed, expunged, or sealed? New York City employers, if you ask that question on your employment application or some version of that question, then remove it. If you search the internet or other databases to learn about your applicants’ criminal history, then stop it. Or at least do so by the fall when the Fair Chance Act, New York City’s “ban the box” law, which Mayor de Blasio is expected to sign, goes into effect. New York City now joins a growing list of jurisdictions to ban criminal conviction inquiries during the screening process. The key difference here is that unlike most jurisdictions, New York City extends its prohibitions to private employers. We briefly summarize the law below.
Written by David Barmak
The District of Columbia is on the verge of joining the 13 other states (and numerous cities and counties throughout the country) that have enacted “Ban the Box” laws prohibiting or limiting an employer from asking job applicant’s about their criminal record.
Written by David Katz
We previously wrote (here and here) about New Jersey’s proposed “ban the box” measure, known as the Opportunity to Compete Act, a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process. As expected, Governor Chris Christie signed the scaled-back, more employer-friendly version of the Opportunity to Compete Act into law yesterday.
At an event in Trenton yesterday, Governor Christie stated: “Today we are also going further to reform our criminal justice system by signing legislation that continues with our promise and commitment to give people a second chance. You’ve seen it through the work we are doing in drug rehabilitation across the state. This is a state that believes that every life is precious and that no life is beyond salvation, that everyone deserves a second chance in New Jersey, if they’ve made a mistake. So, today, we are banning the box and ending employment discrimination. And this is going to make a huge difference for folks who have paid their debts to society, who want to start their lives over again and are going to have an opportunity to do just that in our state. That’s what people want and it’s what they except and it’s what they deserved from those of us they entrust with public office.”
Written by David Katz
In December, we wrote about New Jersey’s proposed “ban the box” measure, known as the Opportunity to Compete Act, making its way through the legislature – a law that would prohibit employers from inquiring about job candidates’ criminal histories early in the hiring process. On June 26, the New Jersey Legislature gave final approval (including a 32-1 Senate vote and a 49-24 Assembly vote) to a slightly more employer-friendly version of the bill, which now heads to Governor Chris Christie’s desk.
Written By David Katz
Recently, in a 6-3 vote, New Jersey’s Assembly Labor Committee advanced a bill (A-3837), known as the Opportunity to Compete Act, that would prohibit New Jersey employers with 15 or more employees from asking candidates about their criminal history on employment applications, and from conducting criminal background checks on applicants prior to a conditional job offer. If passed, this legislation would become one of the toughest “ban the box” measures in the nation (derived from the ubiquitous check box on employment applications inquiring whether an applicant has a criminal record), and would place several new administrative burdens on employers. New Jersey would join the 64 states, counties and cities (including Newark, New Jersey) that have already enacted laws aimed at benefiting job seekers with a criminal history. And many states (including New York) prohibit employers from disqualifying an applicant based on a conviction absent a clear nexus between the nature of the conviction and the job sought.