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Issue 1 - 2014 Newsletter

In This Issue:

  • Announcement of Sarah Lucas Appointed as Director 
  • Bay Area Commuter Benefits Program
  • San Francisco's "Ban the Box" Ordinance 
  • Workplace Violence and Employer's Obligations

Sarah Lucas

Announcement 

We are very pleased to announce that Sarah Lucas has been appointed a Director of our firm. Ms. Lucas has been a key attorney with Simpson, Garrity, Innes & Jacuzzi for well over 10 years.  She is a highly skilled and effective litigator, as well as a strategic and pragmatic employment law counselor.

Bay Area Commuter Benefits Program

All companies employing employees in the designated nine Bay Area counties meeting the 50 or more employee threshold will have to comply with the commuter benefits law by September 30, 2014.  There are four ways to comply, including providing employees the ability to pay for mass transit commute expenses on a tax-free basis.  Refer to https://commuterbenefits.511.org/.  While the employer must implement one of the options, the employer may first be required to give a union representing its employees the opportunity to bargain over the options. 

San Francisco’s “Ban the Box” Ordinance

On August 13, 2014, the Fair Chance Ordinance  (“FCO”), also known as ”Ban the Box”, will come into effect.  The FCO places limits on employer inquiries into applicants’ criminal history and requires adherence to a prescribed process before an “adverse action” (e.g., termination or refusal to hire) can take place, among other things.  It applies to applicants and employees whose duties are performed in whole or in substantial part (not defined in the FCO) within San Francisco city limits, and to employers with 20 or more employees, regardless of their location (“covered employers”).  The FCO exempts employers who are required by federal or state law, or an agency implementing these laws, to conduct background checks.  The San Francisco Administrative Code has also been amended to extend the requirements of the FCO to applicants and employees of contractors or subcontractors who would be or are performing work under a contract or lease with the City and County of San Francisco, regardless of where the work is performed.  The FCO does not apply to the City and County of San Francisco, the largest City employer.

The FCO prohibits covered employers from requesting an applicant to disclose on an employment application or during a first interview any details concerning a conviction or unresolved arrest.  Employers are permitted to inquire about criminal history only after the first interview or after a conditional offer of employment. 

However, under the FCO employers are prohibited from inquiring into or taking adverse action based on:

  • Arrests that did not lead to conviction (although employers may obtain information about and consider pending arrests);
  • Participation in or completion of a diversion or a referral of judgment program;
  • Convictions that have been judicially dismissed, expunged, voided, or invalidated;
  • Juvenile convictions;
  • Convictions that are more than seven years old (measured from the date of sentencing);
  • Information pertaining to an offense other than a felony or misdemeanor—such as an infraction.

 

If a job posting is reasonably likely to reach a person seeking employment in San Francisco, the job posting must state that the employer will consider qualified applicants with criminal histories in a manner consistent with the requirements of the FCO.  The FCO requires the San Francisco Office of Labor Standards Enforcement (“OLSE”) to publish a notice informing applicants and employees of their rights under the FCO.  Employers must post that notice in a conspicuous place at every workplace, job site, or other location in San Francisco that is under the employer’s control and that is frequently visited by employees or applicants.  Additionally, employers must send a copy of the notice to each labor union or worker representative with which they have a collective bargaining agreement.  Also, before conducting any criminal history inquiry an employer must provide the applicant or employee with a copy of the OLSE notice. 

When considering a candidate’s or employee’s conviction history, the FCO requires the employer to conduct an individualized assessment that:

  • Considers only a “directly-related conviction,” before refusing to hire or taking any other adverse action based on an applicant’s or employee’s conviction history.
  • Takes into account the time that has elapsed since the conviction or unresolved arrest; and
  • Considers any evidence of inaccuracy or evidence of rehabilitation or other mitigating factors. 

 

If, after conducting the assessment, an employer intends to take an adverse action based on the applicant’s or employee’s conviction history, it must: 

  • Provide applicant or employee a copy of the background check report or conviction report that it is relying on;
  • Notify the applicant or employee of the prospective adverse action and the reason(s) for such action; and
  • Notify the applicant or employee of the criminal history item(s) forming the basis for the prospective adverse action.

 

Thereafter, the employer must wait seven days for the applicant or employee to provide a response, either orally or in writing, regarding any evidence of inaccuracy of conviction history, rehabilitation, or mitigating factors.  If such response is provided, the employer must once again wait for a reasonable period of time (duration is not defined) to reconsider the adverse action in light of the new information.  Only then the employer may take a final adverse action based upon the conviction history.  However, when doing so, an employer must notify the applicant or employee that the adverse action was taken because of his or her conviction history.  This notice is required regardless of whether the criminal history information was obtained via a consumer reporting agency or some other method.

The FCO prohibits an employer from retaliating against an applicant or employee who exercises his or her rights under the FCO.  Additionally, the FCO requires employers to retain application forms, interview notes, criminal background reports, and applicant responses to inquiries and prospective adverse actions for at least three years.  Employers are required to provide information to the OLSE on an annual basis to verify its compliance with the FCO.  Failure to maintain records results in a presumption that the employer was not compliant.

Once the FCO comes into effect, it will significantly impact the hiring process for positions in San Francisco (or those substantially within San Francisco city limits).  Therefore, employers should seek advice from employment counsel now to ensure that their applications, hiring guidelines  and processes comply with the FCO.

Workplace Violence and Employers’ Obligations

A former or current employee threatens your company. What should you do? An employer has a legal duty to use reasonable care to protect employees and business visitors against foreseeable criminal attacks.

While most acts of violence in the workplace are committed by third parties (e.g. armed robbers), over half a million non-fatal violent crimes occur in the U.S. workplace each year, according to the U.S. Department of Justice.

In general, an employer has a legal duty to use reasonable care to protect employees and business visitors against foreseeable criminal attacks. This obligation arises out of several sources of law.

  1. Common Law (Court Created) – An employer owes a common law duty to its employees and visitors to use reasonable care in the selection and retention of competent employees, as well as a duty to provide adequate security against foreseeable criminal attacks on the premises.
  2. Cal OSHA – Employers have a duty to provide a safe and healthy workplace. Cal-OSHA applies to require employers to protect employees from violent situations.  Therefore, employers who learn of threats of violence against employees should take reasonable measures to protect their employees, just as with any safety issue at the workplace.
  3. Workers’ Compensation – In California, an employee’s injuries are compensable under workers’ compensation if the injury occurred while the employee was performing a service for the employer. Even if an employee is injured or killed by another employee, the employee (or his/her family) may be able to recover benefits from the employer.

There are a variety of assessment and protective measures that an employer can implement. These include:

-contacting law enforcement

-conducting internal investigations

-using psychiatrists, psychologists, or other mental health professionals to assess and/or diffuse the situation

-hiring security personnel

-obtaining court restraining orders

-conducting background checks

-improving security procedures at the premises

Companies must be dynamic when deciding what measures to take. For example, if a company initially decides not to use security personnel, but a background check later reveals that the perpetrator has a violent criminal conviction record, the company should reassess utilizing security personnel.

Obviously, legal guidance is essential to help determine what preventative actions will meet the company’s legal obligations. Numerous legal landmines can arise in dealing with threat situations. Experienced legal counsel should be a part of the “response team” to identify those issues and resolve them.

 

Issue 2 - 2014 Newsletter
Issue 3 - 2013 Newsletter | What's New For Employe...

Our Locations

Simpson, Garrity, Innes & Jacuzzi, P.C.
601 Gateway Boulevard, Suite 950
South San Francisco, CA 94080
Map and Directions

Tel: 650-615-4860
Fax: 650-615-4861


2175 N. California Blvd, Suite 710
Walnut Creek, CA 94596
Map and Directions

Tel: 925-322-8889
Fax: 925-322-8890


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