Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Background Checks’ Category

California Just Passed Landmark Law to Stop Bosses From Discriminating Against People with Convictions

Monday, November 6th, 2017

In an important victory for formerly-incarcerated workers fighting employment discrimination, Calif. Gov. Jerry Brown signed Assembly Bill 1008 into law on October 14, establishing some of the strongest “Ban the Box” legislation in the country. Brown’s signature can be attributed to tireless organizing on the part of formerly incarcerated individuals and their advocates.

One of the biggest challenges facing people returning from prison is employment. Many jobs require applicants to check a box if they have ever been convicted of a crime, but offer no opportunity to explain the circumstances of their arrest. Employers often disregard formerly incarcerated individuals, regardless of their given situation. “Banning the Box” removes this question from applications, requiring businesses to assess the job-seekers’ criminal background only after the individual’s qualifications have been considered.

Under AB 1008, or the California Fair Chance Act, restrictions on employers’ criminal background checks have been extended to private companies. This means that, as of January 1, 2018, no California business with five or more employees will be allowed to ask about or consider an applicant’s conviction history before an employment decision is made.

The legislative victory is the culmination of a fight that has lasted more 14 years, as the grassroots organizing project All of Us or None started the campaign during the early 2000s. All of Us or None sprung out of the group Legal Services for Prisoners with Children (LSPC.)

LSPC’s Communications Director Mark Fujiwara spoke with In These Times about the bill. Formerly incarcerated himself, Fujiwara emphasized that his group’s organizing was primarily led by individuals who had spent time in prison—and have experienced the system firsthand. “Having a grassroots organizing project like All of Us or None is key to creating a sense of community and empowerment for directly-impacted people and our families, as every aspect of the prison industrial complex is designed to separate and isolate people,” he said.

Sandra Johnson is another formerly incarcerated member of LSPC who was on the frontlines of California’s “Ban the Box” fight, testifying during hearings and advocating to legislators. She told In These Times that she was fired from her job of six years after her former employer accused her of concealing her conviction history. “It was devastating,” she told In These Times, “I don’t want anyone else to feel what I felt.”

AB 1008 also received a visibility boost from high-profile supporters like the musician John Legend. About a month before its passage, Legend wrote a letter to Governor Brown calling on him to act on the issue. “For too long, these men and women have been defined by the worst moments of their lives,” Legend wrote. “They have been stigmatized, even after paying their debt to society, and? ?they? ?have? ?seen how? ?a? ?criminal? ?record? ?takes? ?a? ?wrecking? ?ball? ?to? ?future? ?employment.”

“Ban the Box” legislation is particularly important in California. According to the National Employment Law Project (NELP), nearly one out of every three California adults has an arrest or conviction on their record. That’s roughly 8 million people statewide. “The old approach didn’t serve any of us well,” NELP staff attorney Phil Hernandez told In These Times. “When 8 million people across the state are effectively shut out of employment, that shrinks the economy, undermines public safety, and harms families and communities. For those reasons, this new law—which aims to give people with records a fair chance at employment—will ultimately benefit all of us.”

NELP studies also show how restrictive hiring practices have a devastating impact on children and families. Almost half of U.S. children have at least one parent with a record. According to a survey with family members of formerly incarcerated individuals, 68 percent said that those who were parents had trouble paying child support after being released from prison. One study of formerly incarcerated women revealed that 65 percent of them were relying on a family member for financial support.

The fair hiring movement has gained considerable steam in recent years. AB 1008 makes California the 10th state to ban the box for public and private sector workers. Twenty-nine states now ban the box for public employees, and five of them have done so this year: Utah, Nevada, Pennsylvania, Indiana, and Kentucky. In 2015, President Obama endorsed the practice for federal employees. There are also increasing efforts to extend ban the box policies to colleges. In June, Louisiana became the first state to block public universities from asking applicants about their criminal history.

This article was originally published at In These Times on November 6, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Los Angeles bans criminal history checkboxes on job applications

Wednesday, December 14th, 2016

Companies in the nation’s second-largest city must stop requiring job applicants to disclose criminal convictions on hiring forms next year after Los Angeles Mayor Eric Garcetti signed a “Ban the Box” law there on Friday.

The law does not prevent companies from conducting background checks once they have made a conditional job offer to a finalist. But it eliminates a standardized checkbox question about previous run-ins with the law, a common feature of job paperwork that makes it much harder for people to get back on their feet after serving their time. Firms with fewer than 10 employees are exempt from the law.

Sometimes called fair-chance hiring laws, such restrictions on how hiring managers solicit information about applicants’ criminal histories have grown in popularity over the past few years.

But the laws have typically applied only to hiring that involves taxpayer money, at government agencies and vendors who do business with the government. When President Obama moved to ban the checkbox last year, the executive action he took was limited to federal government hiring.

Inmates at a crowded California prison. CREDIT: AP Photo/Eric Risberg, File

Out of 24 states with fair-chance hiring laws, just nine extend to the private sector. Los Angeles is the 15th local jurisdiction to extend ban-the-box thinking to private firms. Among the five largest American cities, only Houston has yet to ban the checkbox.

Between 60 and 75 percent of people coming out of prison are unable to find work in their first year back on the street. Research indicates that an applicant’s chances of a callback drop by half if they indicate a criminal record—though white applicants who check the box fare significant better than black ones. There is also evidence that people who get far enough into the process to actually meet with a company representative are much more likely to get an offer despite their record—a key argument for eliminating the check-box filtering mechanism.

The idea’s spread during the latter years of Obama’s tenure seemed emblematic of the broader re-evaluation of a criminal justice system that is more punitive than rehabilitative. Formerly incarcerated people and their supporters rallied in front of the White House in 2015 to call for action, sharing stories of the hardships they faced in finding legitimate work after re-entering society.

The administration’s eventual move on hiring paperwork was just one in a flurry of progressive reforms to the incarceration system, all of which may be in jeopardy once president-elect Donald Trump takes office in January.

Americans leaving prison face high hurdles to regaining their economic and social footing without returning to crime. These obstacles are complicated to dismantle, rooted as they are in societal and individual prejudices about people with criminal pasts.

Policy changes can’t will charity into people’s hearts, of course, and there’s even some evidence to suggest that personal prejudices around the formerly incarcerated are so entrenched that fair-chance laws trigger ugly unintended consequences.

Two groups of researchers have published analyses suggesting that hiring managers simply begin ruling out young black men by default when they know they can’t ask about criminal history in the initial stages of their search. One of those studies outright argues that banning the checkbox does more harm than good.

But as the National Employment Law Project notes, that analytic conclusion gets things backward.

“Rather than identifying the root of the problem—which is both coupling criminality with being African American and the dehumanizing of individuals with records—the argument blames the reform,” NELP researchers wrote in response. “This distinctly economic framework, which views employers as entirely rational actors, fails to appreciate the extent to which negative racial stereotypes continue to plague the hiring process.”

Tinder on Fire: How Women in Tech are Still Losing

Thursday, August 21st, 2014

  A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

 This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

Background checks: It’s not a “good thing”

Wednesday, December 11th, 2013

Christian SchreiberConsider the following hypothetical.  You own a restaurant and you’re looking for an assistant to the head chef.  The applicant needs to be able to cook, yes.  But the position also requires administrative skills – ordering, inventory, relationships with vendors and staff.  Creativity with the menu would be a plus.  A woman comes with lots of relevant experience. You notice she has a six-month interruption in her resume in late 2004, early 2005.

Years ago, an interview might have sufficed; perhaps you would have called her references, or tried her out on a lunch shift.  Today, in addition to the tryout and the references, you ask her to authorize a background check.  In the meantime, she wows you on the lunch shift.  Her plates look great.  She cleverly rearranges the pans between orders.  Then you get back her background check: she was convicted in federal court of conspiracy, obstruction of an agency proceeding, and making false statements to federal investigators.  Does she get the job?

While the dark potential of our information age remains thankfully unrealized, the workplace remains a frontier of personal data collection and snooping.  TheACLU claims that “it receives more complaints about privacy in the workplace than about any other issue.”

For workers, this unquenchable thirst for more information often first presents itself under the auspices of “background checks” (called “consumer reports”) required by employers.  Where background checks were once the province of private investigators and reserved for high-level executives, now even low-wage workers are asked to authorize employers (and potential employers) to investigate their “character, general reputation, personal characteristics, or mode of living.”  The trend is dangerous and often serves as the pretext for discrimination that would otherwise be prohibited under State and federal anti-discrimination law.

One of the most popular myths is that employers who screen candidates for credit histories and criminal records can reduce their potential liability from “bad hires.”  Some courts have even adopted the rhetoric that background checks embrace a “common sense” approach because they help employers “better evaluate the trustworthiness, reliability, and effectiveness of prospective employees.”  Yet, while other “common sense” claims hold up based on evidence of their truth, in this arena, employers have never even been asked for any proof that credit and criminal background checks increase retention rates, worker productivity, or diminish liability for negligent hiring or supervision.

In fact, consumer reports are notoriously flawed. The Federal Trade Commission and its successor, the Consumer Financial Protection Bureau, have claimed there may be as many as 42 million Americans with errors on their credit reports.  But this is only part of the problem.  Despite propaganda from the industry, race and gender result “substantial differences in credit scores across racial groups…with blacks and Hispanic whites having notably lower credit scores than other racial groups. These racial differences persist, even after controlling for other demographic characteristics such as age, marital status, and an estimate of income.”  Though the law is still evolving in this area, denying employment on the basis of a bad credit history, therefore, may be tantamount to denying employment on the basis of race.

For workers with criminal histories, background checks present a more obvious and intractable problem.  As a practical matter, criminal background checks are often harmful beyond the criminal conviction history they may include.

Like credit histories, they are frequently incorrect—sometimes the reports mix up identities (are you the same “Michael Miller”?), omit essential information about the offense or the disposition, or misstate charge levels or convictions.  By the time such errors are challenged or corrected (companies have up to 30 days), employers have already moved on to the next applicant.  This can also involve purely practical considerations: employers may understandably have difficulty sifting through charging codes, references to statutes, or interpreting dismissals and dispositions.  Is it worth understanding a complicated report when a stack of “simple reports” offers a large enough applicant pool?

Or consider an individual who has had her record “expunged,” a process whereby the individual withdraws a guilty plea and the court dismisses the charges.  Consumer reporting agencies often unlawfully report both the conviction and the dismissal, which they then claim is “factually accurate.”  One can fairly ask what purpose the expungement serves if it fails to shield the conviction from later disclosure.

As the government grows more opaque, criminal records have become more public.  The increase in computerized public records has made background checks easier and cheaper to obtain.  What once required a trip to the courthouse is now accomplished by a few seconds at the keyboard.  Consumer reporting agencies use sophisticated databases to package, market and sell criminal record information and credit histories to anyone with curiosity and a credit card.

This isn’t to suggest that childcare providers shouldn’t have access to criminal records of convicted child abusers, or that employers should not be able to discuss resume gaps with applicants and evaluate a potential employee’s record on a case-by-case basis.

Ultimately, given the over-representation of African Americans and Latinos in the criminal justice system, using criminal background histories is itself a race-conscious undertaking.  This alone should give employers pause.  Blind reliance on background checks of dubious reliability used to prescreen applicants only encourages discrimination.  More importantly, it denies willing and capable workers, including ex-offenders, the opportunity to make an honest living.

This article was originally printed on CELA Voice on December 5, 2013.  Reprinted with permission.

About the Author: Christian Schreiber joined Chavez & Gertler in July 2009 as a class action litigation associate.  Mr. Schreiber works primarily on cases involving consumer rights, employment, and financial services matters.  Prior to law school, he worked in Sacramento as a legislative aide for former California State Senator Joe Dunn, and served as Chief Investigator for the State Senate Select Committee to Investigate Price Manipulation of the Wholesale Energy Market.  Mr. Schreiber worked for several years as a freelance writer.  Mr. Schreiber was a class action litigation associate at Schneider Wallace Cottrell Brayton Konecky LLP in San Francisco before joining Chavez & Gertler.

Your Rights Job Survival The Issues Features Resources About This Blog