Wednesday, March 15, 2017

Making Minority Hiring Better In Theory And Worse In Practice


A BRIEF HISTORY OF BAD CHOICES


I'm friends with some very thoughtful minority business owners who have made a conscious decision to hire ex-cons who’ve exhibited a willingness to bootstrap themselves up from where they used to be.  One is Jailhouse Christian who has been blessed with financial success. His own faith took root while he was an inmate at Wasco State Prison.  He now runs a very successful auto repossession business, but also suffers from the searing pain of having had to bury his own son, who he lost to the world of gangs and drugs. Another is an ex-con who runs an automotive service business in San Fernando. Both are outstanding human beings. But, unlike most business owners, they measure their success by the number of lives they can touch, not the number of dollars in their bank account.  They each probably give away more money than they keep, but, as one of them puts it, “as long as he keeps blessing other people, the Lord keeps blessing him.” As much as I admire both of these men, it is clear that their business experience is not representative of the business community at large. The business community is risk-averse, and hiring people with a sordid past can be risky, especially if that past includes violence. When the City of Los Angeles enacted FCIHO, the Fair Chance Initiative for Hiring Ordinance, city rule makers wanted to encourage employers to give people with prior criminal histories a chance. Starting January 1, 2017, Los Angeles businesses that employ ten or more employees have been given new mandates that are supposed to be more forgiving to those of us with a sordid past.  

BACKGROUND

Let’s clear the air about pre-employment screening. The City of Los Angeles bureaucrats meant well. The old “have you ever been arrested?” checkbox on a background questionnaire is long gone, and good riddance. With the original “box,” a current state prison parolee and a 60’s freedom rider were both considered equally worthless. The question made no distinction as to whether the accused was adjudicated innocent or guilty. With institutional bias in law enforcement, disparate sentencing in the court systems, and a host of other societal evils, this wording was a particularly bad choice.

While the old “been arrested” or the modern "been convicted" part of the question comes down hard on Black and Latino males in particular, the front half of the question “have you ever,” comes down hard on older applicants who had cleaned up their lives and left their youthful indiscretions behind. “Have you ever,” has now gone away too, even when followed by the phrase “been convicted of a crime.” 
The question an HR professional in California would likely ask today, is “have you been convicted of a crime in the last seven years.” While the “Ban the Box” or BTB concept is simple, keeping on top of its recordkeeping requirements is not. BTB started in Hawaii in the late 90’s, and has since spread to 24 states and 150 cities and counties, each with variations on the theme. The way it typically works is: 

THE OLD MANDATE

1.      The employer's not allowed to ask up front about criminal convictions.

2.      With a signed release from the applicant, a criminal background check is done once a conditional offer of employment is received.

3.      If the background reveals an adverse finding, the applicant receives a "pre-adverse action notice," and gets an opportunity to challenge inaccuracies.

4.      If the applicant doesn't respond in a timely manner, an "adverse action notice" is sent telling them they've out of the running.

THE ROCK VS. THE HARD PLACE

Labor and employment laws have changed tremendously over the years. Many of these changes have turned out to be for the better, but hiring decisions are still ventures into shark-infested waters. The small business owner can find him or herself stuck between a rock and a hard place. The rock that can hit small business owners is a negligent hiring or negligent retention action. In a negligent retention action, the sword that Plaintiff’s Counsel is looking for is proof that:

1.      Your employee behaved badly.

2.      You should have known about it.
 Understanding the rock is comparitively straightforward. It sticks out of the shark infested waters. As long as you do a pre-employment background check, you’ll likely see what you "reasonably should have known." Understanding the hard place of “fair employment practices,” is more like sailing shark infested waters where there are submerged reefs. Those submerged reefs are a rocky field of federal, state, county, and municipal requirements. In a fair employment practices action, the sword Plaintiff’s Counsel is looking for is proof that:

1.      The employer made an adverse employment decision.

2.      The decision was made without giving the employee a fair chance.
 The first question out of a business owner’s mouth is likely to be “that sounds kind of vague, define fair chance.”

THE NEW MANDATE

Under LA’s 2017 rules, you can no longer say that a criminal background must be “passed to be considered for a position,” and you can’t inquire about an applicant’s criminal history prior to extending a conditional employment offer, but it’s a lot more complicated than that. Here’s the short version for employers hiring in the VICINITY of Los Angeles:

NAVIGATING - the short version

1.      Make a determination whether the applicant falls within the expanded definition of “Employee” as defined in FCIHO.

a.       Is their workplace within the City of Los Angeles?

b.      If not, during the last four weeks before the position was advertised, did the individual performing the job perform two or more hours of work inside the City of Los Angeles on an average week?

c.       Is the applicant a “telecommuter” who works for an employer outside the city while living inside the City of Los Angeles?

d.      If you answered yes to any of the above, they’re subject to FCIHO.

2.      Collect resumes, applications, etc., without touching on the issue of criminal history at all.

3.      Conduct interviews without touching on the issue of criminal history at all.

4.      Extend a conditional offer of employment. Get the candidate’s written permission to conduct a background investigation.

5.      Have a criminal background investigation done, making sure the investigator redacts any inadmissible findings.

6.      If a history of criminal conduct is found, assess whether that history is deemed an “unreasonable risk.” 

7.      If the answer is “yes,” prepare a written notice specifically articulating why that conditional employee’s conviction constitutes an unreasonable risk to the company. This notification should consider, at minimum, the nature and gravity of the offense, the time that has passed since the offense and/or sentence, and the nature of the job held or sought.

8.      Record the date the conditional employee is notified, follow all document retention requirements, and give the conditional employee at least five business days to complete the Fair Chance Process.

9.      If the conditional employee submits evidence or other information, do the whole assessment process over again, considering what the conditional employee provided.

They say the path to hell is paved with good intentions. They also say that “in propria persona” means your lawyer has a fool for a client. With FCIHO, Los Angeles has reached the point when employers need to either write their own legal arguments explaining how their conditional employee’s criminality precludes them from working, or hire a labor and employment attorney to write custom responses every time a background gets a “hit.” 

CRIMINAL CONDUCT EXCLUSION

In some cases, “criminal conduct exclusion” is a fairly clear business necessity. A past crime shouldn’t be used to exclude a conditional employee unless it is in some way relevant to the job they are being asked to perform. Clearly pedophiles doing childcare and bank robbers driving armored cars are legitimate criminal conduct exclusions, but how does an employer handle a conviction related to domestic violence where both the alleged victim and the alleged perpetrator were criminally charged. There’s no way in the world a streetwise California business owner would make that call without involving a labor and employment lawyer. 

The simple fact however, is that when business owners feel legal pressure to give an up or down vote, things go sideways, and that’s where the problem lies. Under the new L.A. system there are clear winners, and clear losers. 

WINNERS & LOSERS

The biggest winners are:

1.      Los Angeles area Labor and Employment Attorneys

2.      LA City Bureau of Contract Administration & Office of Finance Bureaucrats.

 The biggest losers are: 

1.      Low skilled Black males without criminal records

2.      Low skilled Latino males without criminal records.

 Why? In the words of Yogi Berra “In theory, things turn out the same in theory and in practice. In practice, they don’t.” Call it subconscious avoidance, pernicious racism, or a reality check, but given the litigious climate here in sunny Southern California, the simple fact is that employers don’t want to hire people who’ve been convicted of crimes. BTB was conceived as a way to combat racial prejudice, and while that’s a good premise on the surface, when we look at actual employer behavior, it’s an ugly game of connect the dots. 

In the real world, employers know that some minority populations, particularly young Black and Hispanic men, are disproportionally represented in the criminal justice system. When Jennifer Doleac of the University of Virginia and Benjamin Hansen of the University of Oregon did a BTB study(1), they found that “removing information about job applicants’ criminal histories could lead to employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable. This would worsen employment outcomes for these already-disadvantaged groups. In this paper, we use variation in the details and timing of state and local BTB policies to test BTB's effects on employment for various demographic groups. We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men. These findings support the hypothesis that when an applicant's criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.” 

BOTTOM LINE

The City of Los Angeles, despite good intentions, has almost certainly taken the single largest problem with BTB, and given it a dangerous injection of steroids with the implementation of FCIHO. 

1.        Doleac, Jennifer L., Hansen, Benjamin. National Bureau of Economic Research Working Paper No. 22469. NBER, July 2016.        http://www.nber.org/papers/w22469

Tuesday, December 2, 2014

The Twilight Zone of Employment Law - Part 2



by Paul LeGrand, CA Licensed Private Investigator

Last month, we looked at the nightmare case of the fatal attack at a Vaughan Foods plant in Oklahoma, where a 54 year old grandmother, Colleen Hufford was murdered by a co-worker named Alton Nolen in an ISIS style beheading. A second employee, Traci Johnson, who was stabbed numerous times, survived her attack thanks to the quick reaction of former CEO Mark Vaughan, a reserve sheriff’s deputy who shot Alton Nolen and rescued Johnson from almost certain death. 
Since the attack, Traci Johnson has been released from the hospital and is recovering.  A high school friend of Traci’s set up a GoFundMe.com page at http://www.gofundme.com/f44exo to raise money to help in her recovery, but that site has only raised a few thousand dollars, a fraction of the actual economic impact Johnson incurred in the aftermath of the incident. No negligent hiring/negligent retention lawsuit appears to have been filed against the employer at this time. 

The suspect in the beheading, Alton Nolen, is now in the Cleveland County Jail after initially being hospitalized for the gunshot wounds incurred during his takedown.  Alton’s social media postings related to Islamist interests and claimed sharia law was coming, and he openly admitted to killing Hufford and injuring Johnson. He remains in custody on a first degree murder charge. His preliminary hearing is scheduled for today. Prosecutors are expected to seek the death penalty.
Whether the Vaughan Foods murderer was a jihadist who idolized terror, or a sociopath who developed a fascination for beheadings, Alton Nolen was clearly a violent man with a prior criminal history.  In 2011, Alton Nolen was sent to prison for assault and battery on a police officer. He was released in 2013 and was still on parole when he was hired to work at Vaughan Foods.  The incident triggering Nolen's 2011 arrest was startlingly violent.  The female Oklahoma Highway Patrol Trooper he overpowered and escaped from stated “He exploded out of his car, hit me in the chest and pushed me back.” Nolan was captured 12 hours later. Looking back at the incident, Trooper Betsy Randolph stated “I wish I’d have killed him.” 

Now let’s shift gears away from troopers and jihadists.  In hindsight, it’s obvious that Alton Nolen was a violent person.  What’s not so obvious is that while employers continue to need employees, they need to meet some important and sometimes conflicting standards when they hire them.
Employers clearly need to avoid hiring candidates that pose a clear risk of harm, but they also need to be very careful not to engage in a pattern of hiring where candidates (or employees) become victims of impermissible discrimination. If statistical data for your company shows disproportionate hiring, it could open the door for class action based claims against it. While large employers have been relatively successful at fighting class action employment lawsuits, that defense is by no means 100% successful.

What constitutes a legal and proper background check can vary greatly from state to state, and even from city to city.  In California, you typically can’t report a criminal conviction from more than seven years ago, a FICO score, or an arrest where the candidate was exonerated. In San Francisco, if you do government contracting, you can’t have a check box for criminal convictions on your employment application.  As a California employer, you can run a credit check on a candidate whose position involves access to confidential or proprietary information, but you can’t run a credit check on a candidate whose position will involve routine access to customer’s personal information while they’re processing credit card applications.  It’s a crazy world, but those are just the cards the modern H.R. Professional is dealt these days.

In Human Resources, the name of the game is often avoiding liability exposure down the road. In order to be fair to your employees, you’ll want to look at what positions your company is offering, then decide, and more importantly, document what level of background investigation is appropriate for the position prior to hiring.  Stick with the same program for all the applicants trying out for that position. Fair is fair.  If you give warehouse workers a “level one” background, and warehouse supervisors a “level two,” and you promote someone from warehouse worker to warehouse supervisor, a new “level two” background check is in order. If you’re smart and organized, your documentation should show you’ve made the effort to keep the playing field level.  

While uniform, appropriate background checks based on position are certainly the best practice, doing consistent checks will soon open the door to another problem, negative adjudication. As always, it is up to the employer to set the bar as to what constitutes a “pass” and what constitutes a “fail” in the background. While there are many nuances to doing this, I can safely say that deciding what to do with a candidate who has a 2011 felony conviction and state prison time for assault and battery on a police officer is still a “no brainer,” even in the People's Republic of California.  

Monday, October 6, 2014

The Twilight Zone of Employment Law - Part 1



The Twilight Zone of Employment Law – Part 1
By Paul LeGrand

In what instantly became a national news story, disgruntled jihadist Alton Alexander Nolan, a production line worker at a food processing plant in Moore, Oklahoma, allegedly murdered 54 year old grandma Coleen Hufford in an ISIS style beheading. Once the attack started, Vaughan Foods’ company exec Mark Vaughan, who is also Reserve Sheriff’s Deputy with the Oklahoma County Sheriff’s Department, immediately came to the rescue. Though it was too late to save Colleen Hufford, whose head was completely severed, Vaughan immediately took down Nolan with multiple gunshots as Nolan stabbed and was attempting to behead another Vaughan Foods employee, Traci Johnson. Without a doubt, Mark Vaughan’s skill at arms and his quick decision to use lethal force saved the life of Traci Johnson and countless others.

The public and the law enforcement community both praised Deputy Vaughan for his quick and decisive action, but as much as Mark Vaughan may have been a hero, the “it could have been a lot worse” defense won’t be particularly useful in the event that Johnson, et. al. v. Vaughan Foods, gets filed in Oklahoma’s civil court system. Heroism notwithstanding, Mark Vaughan and the owners of Vaughan Foods are about to enter the Twilight Zone of employment law, negligent hiring claims.

Meet the infamous Alton Alexander Nolan, age 30. Was he a jihadist lone wolf terrorist who promoted Islam and disparaged non-Muslims, or a production worker who acted out in a moment of rage after being suspended? Whether they classify him as a terrorist or not, I’ll venture to say that it’s highly likely prosecutors will seek the death penalty. It’s also highly likely that his capital murder defense team will urge Nolan to cop a plea in order to serve life without parole. So much for the criminal side. Criminally, the guy’s probably toast. 


In the employment law civil actions which are likely to follow, it’s time to enter the Twilight Zone.  For starters, Nolan will not be the one on trial, Vaughan Foods will.  Whether Nolan’s motive was revenge or religion will have little bearing on the outcome of the civil trial. What will matter is whether Alton Alexander Nolan was Oklahoma Department of Corrections Inmate #534241 before Vaughan Foods hired him[1].  Nolen was released from ODOC custody on 3/23/2013. His priors include Possession of a Controlled Substance with Intent to Distribute, Escape from Detention, and Assault & Battery on a Police Officer.  Bottom line:  Pre-incident indicators of Alton Nolan’s potential for violent behavior arguably exist.  In the event Vaughan Foods gets sued, the potential causes of action against Vaughan Foods include negligent hiring, negligent retention, negligent supervision and/or negligent entrustment. Each of these is a different, specific allegation.  In some of these areas, Vaughan Foods may have a pretty good defense, but not all of them. 

An attorney bringing a civil case against Vaughan Foods will no doubt claim that his client(s) would not have been hurt, but for the employer’s actions.  There are two key questions here.  First, did Vaughan Foods exercise reasonable care in hiring Nolan?  Second, as soon as the employer had a complaint that Nolan was acting inappropriately, did they conduct a prompt and thorough investigation, and do they have supporting documentation leading to a determination about his continuing eligibility?

From what we can tell based on the media reports, Alton Nolen was suspended (not terminated) just prior to the beheading incident.  He allegedly went home, retrieved a knife, hid it in his boot, and returned to the company, crashing his vehicle into cars in the company lot before going inside.  He attacked Coleen Hufford from behind, cutting across her throat with a sawing motion and severing her head. Nolan then attacked Traci Johnson, the woman who submitted the complaint initiating the investigation.  Allegedly, Nolan made statements advocating the stoning of women.  These kinds of statements create a hostile work environment, so the employer appears to have acted appropriately in suspending Nolan in order to investigate Johnson’s complaint against him.  This decision helps the employer as far as negligent retention and negligent supervision claims are concerned.   The negligent hiring allegation is going to be tougher for Vaughan Foods to defend against.  

Traditional negligent hiring claims typically come about when an employer either 1) fails to screen employees properly, or 2) hires employees who lack the skills needed to perform their work. In the case of Nolan, there is little public information indicating how much Vaughan Foods actually knew about Nolan’s propensity for violence.  Civil courts in the United States have become the little guy’s lotto.  The whole medico-legal food chain involved in personal injury, worker’s compensation, and harassment / discrimination actions is huge compared to almost anywhere else in the world.   U.S. Criminal courts put more people in custody than courts anywhere else in the world.   With 719 inmates per 100,000 population, the U.S. has the world’s highest incarceration rate. Germany, by comparison, has 80.  Combine these civil and criminal statistics and there’s a huge social problem that spills over into employment practices.

Imagine a society where your life is determined by what kindergarten you get into.  If companies all did exhaustive background checks, and had a zero tolerance policy for criminality, it would lead to a society where all people convicted of offenses become totally unemployable.  While we don’t know whether Vaughan Foods did a background investigation of Alton Nolan before they hired them, we do know that in the real world, employers need to hire people quickly and cost effectively. With jobs like production line work where opportunities for theft are minimal, contact with the public is limited, and labor rates are very competitive, it can be very difficult for employers to decide “where to set the bar” when it comes to backgrounds.  There are a lot of business owners out there who are looking to give people a hand up, not a hand out. In the United States, one in four adults has a criminal of some kind record.  That’s 92.3 million of us.[2]  A quarter of the labor force would be gone if true “zero tolerance” was the standard.
Did Vaughan Foods have knowledge of Nolan’s propensity to commit harm in advance?  Did Alton Nolan complete a background investigation form? Did they check any of his references?  Did Nolan falsify information to conceal his criminal past?  These will be key questions in a civil case.  There will certainly be others.  In Oklahoma, an employer is liable for a wrongful act of its employee if the employee commits the act while working within the scope of his or her employment. Clearly, Alton Nolan did not commit the attack during the course of his employment, and little argument could be made that beheading co-workers was within the scope of his employment. Ultimately, however, the person truly responsible for the act will have no ability to pay, and Vaughan Foods’ insurance carriers will find settling this case, perhaps even for policy limits, will be a more cost effective strategy than putting the matter before a jury when opposing counsel can put a victim of an attempted beheading, who was traumatized by an actual beheading a few feet away, on the witness stand.

Tuesday, September 23, 2014

A really fun speaking engagement

Yesterday morning we were blessed with the opportunity to give a really fun presentation.  While we do many speaking engagements in the Conejo Valley and surrounding areas, we typically are sharing our specific expertise on subjects like pre-employment screening, where there are hundreds of little regulatory nuances, or evidence photography, where it is important to be consistent with your protocols and document everything perfectly. When we got the invite to speak at University Village, a very elite country club style retirement living complex, we jumped at the change.

We always put a lot of prep work into our speaking engagements. When we first started planning our presentation, we were thinking about how retirees might need investigative services.  The people who invited us had recently had a speaker cover the topic of scams, so that was out. We even briefly pondered doing a speech on "how to protect your grandkids when your kid's marriage breaks up."

After a little conversation with their leadership at University Village, it quickly became apparent that we live weird and fascinating professional lives, and what they really wanted was a window on our world.

Friday, July 26, 2013

DIGITAL FOOTPRINTS




(The blue dot above equals 1 million customer's data breached)

Digital Footprints

The other day I heard a talk radio host refer to a guy robbing somebody as “analog crime.” There are bad people after both your hard earned dollars, and your information.  Nobody wants to give in to them, and it seems like we all enjoy the convenience of being online, except when things suddenly go wrong. 

In the world of digital crime, when something does go wrong, it’s likely to show up not in your own backyard, but halfway around the world.  The last time it happened to me, the problem came in the form of a consumer electronics purchase from a Tesco store.  Tesco is a European chain store similar to the USA's Wal-mart. Though the chain does actually own Fresh & Easy, I think the closest Tesco to my house is somewhere in England. 
 
Today’s crook is sophisticated, and we are currently exposed to more financial risk from digital crime than we are from “analog” crime.  By 2017, there will be 1.3 billion online users filing documents, images  and financial records in cloud storage, so there are plenty of opportunities for people to access data.

Keeping your private stuff private helps.  Whether you’re careful, or not,  it is very possible for your information to be stolen from a source you have absolutely no control over, like Visa/MasterCard, your bank, Apple, T-Mobile, or the Veteran’s Administration.   It’s worth taking a good look at your statements for any erroneous charges.

It’s also worthwhile to conduct your life so you don’t put out too much personal information.  Over the course of the last month or two, news stories on people like Edward Snowden and Julian Assange have increased public awareness of programs like the NSA’s PRISM surveillance program, and wholesale collection of Verizon customer’s pin register data.  Clearly the executive branch has a huge interest in  data archiving on a massive scale, and congress is not going to do anything to close those particular floodgates.   For many of us, personal privacy is not that important.  I’m not a particularly private person, and with a litany of past publications, speaking engagements, and op-ed pieces of one kind or another, short of changing my name and dropping off the grid, I really don’t expect to have much privacy.

If you DO value your online privacy.  Here are a couple of thoughts

1.    Online banking provides less privacy than paper banking.
2.    Encryption is quick, cheap, and easy.  It also makes you look like a suspect if it is found in certain places, but a thumbdrive is probably OK.
3.    Thumbdrives move data between machines more securely than dropbox or email.
4.    Webmail provides less privacy than using an email client like MS Outlook installed directly on your PC.
5.    Cloud storage provides less privacy than your hard drive.
6.    Web photo aps like flickr and instagram make tracking your photos a breeze! For everybody!
7.    Cloud based word processors like GoogleDocs provide less privacy than locally stored word processors like MS Word.
8.    There’s more snooping than the general public realizes.
9.    Anti-spyware programs work against the majority of the threats to your HDD and your phone.
10. Some things, like your retirement fund, really don’t need to be accessible at the click of a mouse.

Figure that God, and at least one three letter acronym, are looking over your shoulder, and you’ll probably be OK. 

Followers