Criminal Background Checks

February 26, 2018

The new law regarding criminal background checks has some employers confused so let’s go over it step-by-step.

Effective January 1, 2018, this new law amends the California Fair Employment and Housing Act to prohibit employers with 5 or more employees from inquiring about criminal history on an employment application and/or at any time (including the interview process) prior to making a conditional offer of employment.

This law also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of:

  1. Whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job sought;
  2. You must take into consideration the nature and gravity of the offense;
  3. The amount of time that has passed;
  4. The nature and duties of the job sought by the applicant.

An employer who makes a preliminary decision to deny employment based on that individualized assessment must provide the applicant:

  1. A written notification of the preliminary decision that identifies the disqualifying conviction(s);
  2. Inform the applicant that he or she may provide a response that includes evidence challenging the accuracy of the conviction information and/or demonstrating rehabilitation or other mitigating circumstances;
  3. The employer also must provide a copy of the conviction history report, if any. (The employer may, but is not required to, explain or justify the reasoning for its preliminary decision.);
  4. The applicant must be provided with at least 5 business days to respond (before the employer can make a final decision on employment);
  5. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant must be given an additional 5 business days to respond to the notice;
  6. The employer is required to consider any information submitted by the applicant before making a final decision;
  7. If a final decision is made to deny employment, the employer again must provide written notification to the applicant and inform the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing and/or of any internal appeal rights the applicant may have to challenge the decision.  (Again, the employer may, but is not required to, explain its justification/reasoning for its final decision.).

This new law does not apply in those limited circumstances where a public or private employer is required by law to conduct a criminal background check or to restrict employment based on criminal history.  Covered California employers should familiarize themselves with the requirements of this new law and modify their employment applications and hiring processes accordingly.

NOTE: I will be speaking on the “Impact of Domestic Terrorism on the Workplace” on Monday, March 5th, 2018 from 10 am to 11:30 am at the Manhattan Beach Library. This opportunity is being presented by the Manhattan Beach Chamber of Commerce.

Bringing Your “Peacock” to Work!

February 19, 2018

An issue has re-emerged because of the passenger wanting to bring a “Peacock” on the plane claiming it was a service animal. We have received some calls because there are those who want to bring their animals to work. So the peacock event raised the question, once again, about whether or not employees can bring service animals to work. Let’s get some clarifications going between “service animals” and “support animals.”

The truth be told, whether it was a large peacock, or a small parakeet, or a dog, or any other animal labeled “emotional support,” the airline acted well within its rights, whether dealing with a customer or an employee. The ADA makes no reasonable accommodation allowance for “emotional support animals” of any species and of any size. Period. The ADA makes a clear distinction between “service animals” (some of which an employer must consider accommodating) and “emotional support animals” (none of which must be accommodated).

A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. …

Emotional support animals, comfort animals, and therapy dogs are not service animals under … the ADA. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either. … It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

In what circumstances must an employer consider allowing a service animal as an accommodation? When the work or tasks performed by the service animal is directly related to the individual’s disability. Examples include:

  • Assisting individuals who are blind or have low vision with navigation and other tasks.
  • Alerting individuals who are deaf or hard of hearing to the presence of people or sounds.
  • Providing non-violent protection or rescue work.
  • Pulling a wheelchair.
  • Assisting an individual during a seizure.
  • Alerting individuals to the presence of allergens.
  • Alerting a diabetic to irregular blood-sugar levels.
  • Sensing that an anxiety attack is about to happen and taking a specific action to help avoid the attack or lessen its impact.
  • Retrieving items such as medicine or the telephone.
  • Providing physical support and assistance with balance and stability to individuals with mobility disabilities.
  • Helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Only two species can ever qualify as service animals under the ADA—dogs and miniature horses (yep if you can believe that about the miniature horses!). That’s it. Any other animal, even if trained to do work or perform tasks for the benefit of an individual with a disability, is not an animal for which the ADA requires the consideration of an accommodation. So, to answer the question, “Can I bring my peacock to work?” “No, you may not.” If it’s a service dog (or miniature horse), however, and the employee asking is disabled, you must engage in the interactive process with the employee, and consider granting the request as an accommodation. Hope this clarifies this issue for the last time!

What to do When an Employee Refuses to Sign a Warning!

February 12, 2018

The one consistent question that comes up when we conduct “Documentation” trainings is “What if the person refuses to sign?” Let’s keep it real for a moment. You cannot force anyone to sign anything. Having stated that let’s look at some techniques that might help.

The hardest part is getting managers and supervisors to actually write someone up. Understand something. If you do not and a wrongful termination lawsuit is filed, how are you going to prove the termination was justified? It is as simple as that.

Moving forward you have an employee that is either not performing or has violated company policy. The next step after any verbal warning is to move toward a written warning. You have completed the form, presented it to the employee, and now it is time for that signature but hold on, he is refusing to sign it. Don’t panic. Employees often refuse to sign disciplinary actions, but they are more likely to sign if the notices are presented and worded in the right way. You want their signature as proof that they received the discipline for their behavior. There are other ways to prove he “saw it” although he refused to sign.

Ask the employee if he would like to write a rebuttal to whatever is written on the action form. If he says “yes” then let him write it out. Do not take offense to whatever he writes. Remember, the objective is to prove he read it, not that he agrees with it. If the employee still does not want to do anything then have a witness acknowledge that he saw the disciplinary action form being presented and the employee refused to sign.

Keep in mind, employees are more likely to sign disciplinary notices that clarify right above the signature line that they may disagree with the warning and, by signing, they are acknowledging only that they received and reviewed the documents.

Another well-known technique is to having wording to the effect that they understand, “My signature here indicates ONLY that I have had the opportunity to read this report. It does NOT indicate my agreement with the contents” and then have a signature line below it. If there is a comments box, include another signature line below it.  

If all else fails you can also have them write on the form that they refuse to sign it. Believe it or not in my experience they will do that nine times out of ten! If they do, have them initial it (they often think an initial is different than a signature) and date it.

Never fire an employee for refusing to sign. Consider this. After the meeting send an email recapping the meeting and that you respect their right not to want to sign. When they reply back what do you have, an acknowledgement by them that they saw the document. That’s all you want. Don’t let your emotions take over for the refusal.

Good luck! Any questions call me.



Employees Stealing Documents to use Against YOU!

February 5, 2018

All too often we get calls regarding employees stealing (or possibly stealing) documents they intend to use against you in whatever possible case they think they might have. It’s a situation that is now playing out all too often. Because of the ease of technology, these individuals can email documents to a personal email address, or drag them into a personal Dropbox, or copy them to a stick drive. Sometimes an employer may believe that the individual is starting up a business to compete against the employer or going to work for a competitor. But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit? Does an employee have a right to copy your documents to prepare a discrimination lawsuit? Believe it or not the answer is not that simple. It depends! In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.

In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.

  1. How did the employee obtain the documents?
    • Was it accidental or in the course of their job duties?
    • Or did they rummage through files or snoop around offices for documents?
  2. To whom did the employee produce the documents?
    • To their attorney?
    • Or to coworkers?
  3. How strong is the employer’s interest in keeping the documents confidential?
    • Do they contain trade secrets, or other confidential information, or suchthings as social security numbers or medical information?
    • Or do they contain non-confidential information?
  4. How did the employer discover the misappropriation?
    • Did the employee volunteer the information as part of the lawsuit?
    • Or did the employer discover it on its own?
  5. Did the employee violate a company policy by taking the documents?
    • What do the employer’s privacy and confidentiality policies say?
  6. Does the employee have an ability to preserve the evidence in a manner other than copying the documents?
    • Can the employee merely describe the content of the documents to his or her attorney?

So, the question then becomes, if you catch the employee red-handed with the documents, what should you do? Often, it’s fire now/ask question later. And courts generally support this plan of attack. For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.

In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The Courts will protect reasonable attempts to contest an employer’s discriminatory practices however, it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

The 6th Circuit reached a similar conclusion in Niswander v. Cincinnati Ins. Co. This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are other more legitimate ways to achieve the same goal (retaining counsel, who send a preservation letter to the employer). So what should you do if you catch an employee copying documents? Always seek to get advice on such matters. Don’t try to figure it out yourself. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and, unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee. Misappropriation of company property is usually (or should be) in your company handbook. Use it!