Wednesday, August 1, 2018
We're on the air!
We're on the air! Paul Dryman is a featured guest on The Conejo Valley Advice Giver's Podcast, featuring business owners, fascinating entrepreneurs, and the brightest minds from the Conejo Valley area. Hosted by husband and wife team Jay & Michelle Lieberman, the well-established local show is now in it's 117th episode. In this episode, Paul takes the listeners on a tour of how a good private investigator can help out in both business situations, and some of those other delicate moments in people's lives. It's not like the TV shows at all. The podcast episode will be airing Wednesday, August 8th, and you can listen to it here.
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.
[1]
Oklahoma Department of Corrections inmate information http://docapp065p.doc.state.ok.us/servlet/page?_pageid=394&_dad=portal30&_schema=PORTAL30&doc_num=634241&offender_book_id=391688&imageindex=1
[2]
Bureau of Justice Statistics, 2008
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.
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
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.
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