October
20
2011
Well, there are a number of screening companies that ignore California Law, following only the Federal law which has lifted the time requirement. California is special in that it maintains a 7-year reporting limit on convictions and a violation of that rule is a big deal!
One other thing that is nebulous, as a practice in all states is understanding the “full adjudication” component of reporting criminal convictions.
Generally, it is mistakenly believed that the date of the conviction is what anchors the reporting date limit, but that is not correct. Actually, what is permissible is the reporting of convictions that antedate “full adjudication” by the 7-year period, not necessarily 7 years from the date of conviction.
That means, simply that if you are convicted of a crime on January 1, 1990, say for murder, and you serve 20 years, being released from prison, on January 1, 2010 that conviction is reportable since you were released from the court’s jurisdiction within the 7-year statutory reporting period.
Now, that can even extend further, if there is parole involved the way we at APSCREEN interpret the law is that a conviction is reportable 7 years from the date that the convicted party is released form court custody, meaning not only have they been released form prison, but have completed all court requirements including parole, and in many cases not until restitution is complete, IF the restitution is part of the release conditions from the court.
There are pitfalls to that, as well, since many screening firms mistakenly believe that the reporting period can actually be until 7 years from the date that the convicted person’s civil rights are restored, but that is also incorrect, as civil rights restoration is not automatic, it is a function of the person requesting that the rights be restored, and is not tied to any jurisdictional custody dates, or to the full adjudication date, or the date that the person was completely and unconditionally released from the courts custody and jurisdiction.
October
14
2011
A Case for Candidacy Determinant in the Wake of Bad Legislation
As someone who has been in the employment screening and credit reporting business since 1980, I have seen just about every attempt possible to thwart the use of credit reports in various settings as a candidacy determinant – especially the employment setting. Simply put, people continually try to outlaw credit reports for every reason imaginable because they work with deadly efficiency.
That said, most, if not all legislative attempts to ban the use of these incredibly valuable tools have failed because they become so watered down that the politicians are able to convince their constituencies that as long as they persevere, the law will pass. Such is the case with the new AB 22 law in California created several revisions and vetoes ago by Assemblyman Tony Mendoza and signed by Governor Jerry Brown over the weekend of October 8-9, 2011.
This bill has been presented to the Governor’s desk and has twice failed to garner the Governor’s signature until Jerry Brown came into office. Similarly, this one has virtually no teeth when the real measurements are made.
This legislation, like most of the knee-jerk liberally biased legislation in California, was accomplished by Assembly Member Tony Mendoza, the architect of the definitions of those areas where credit reports are no longer available in the pre-employment setting. One can only imagine what went on his mind when the NEW governor finally signed the bill after two failed attempts with the old governor!
The new law hailed by those out of the know prescribes specific areas of defined use until it gets to Chapter 7, which is the gaping loophole for most employers, and for most employment positions available in California.
Now, usually, as a guy that takes the law very seriously, I cannot help but be drawn to what some may consider the dark side, and want to advise California employers of ways around this effectively useless law (the way it is presently written) and to provide specifically the ways in which people who hire can avail themselves of this still viable and highly valuable candidacy determinant.
Let’s begin with what may and may not be used in the hiring context with regard to what is included in an employment credit report.
Actually, you can read the context of the law at the following site: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0001-0050/ab_22_bill_20111009_chaptered.pdf so it is easier to simply tell you what part of an employment credit report may not be used, and that part is what many that presently use credit reports don’t use anyway, namely the trade line information, or, as the new law reads:
(1) “Consumer credit report” has the same meaning as defined in subdivision (c) of Section 1785.3 of the Civil Code, but does not include a report that (A) verifies income or employment, and (B) does not include credit-related information, such as credit history, credit score, or credit record. “
Clearly, as long as what a prospective employer sees does not include credit history (actual payment history) and a credit score (you know what that is, namely a FICO score, which incidentally has been excluded from ALL Employment Credit Reports from the three major credit bureaus ever since “Employment Credit Reports” were invented), or “credit record” which is the same thing as “credit history,” the rest of what is included in an Employment Credit Report is still available, and that is VERY important.
In practice, unless certain jobs require an actual understanding of the payment history of a candidate, most employers presently opt of using the payment histories. Instead they choose to use the parts of the credit report which are very important, namely the identification part and the past employment part, especially when it comes to trying to verify an applicant’s prior employment history, and in determining what the candidate’s identities actually are, versus who they say they are; which is critical in the determination of prior criminal conviction history.
In essence what this new law has done is take away mostly what employers don’t care about anyway; namely the actual payment history unless the job calls for it such as an accountant, cash handler, etc. Remember, credit “scores” have never been available to employers, so that part of the law is moot – yet another example of uniformed politicians trying to make policy based on incorrect information and assumptions.
Now, let’s look at the best possible gift that this new law has to offer employers, namely paragraph 7 of Labor Code Section 1024.5, Section. 2. Chapter 3.6 which is one of the further identified areas where these reports are available to a prospective employer:
“(7) A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information..”
I don’t know about you, but as a 31+ year businessman, my competitive edge has always been the way I do things in my business. That means that when I hire someone, I don’t want them discussing ANYTHING with my competitors or anyone else as it could compromise my competitive edge and put me out of business.
That said, how do I (as the law specifies) protect my “confidential or proprietary information including a formula, pattern, compilation, program, device, method, technique, process or trade secret”?
The answer is simple … with a proprietary and trade secrets agreement as well as a germane company policy that is acknowledged by every one of my employees.
What, you say? These types of agreements are unenforceable in California? Well, that may very well be true, but the very existence of them while not always enforceable establishes beyond any reasonable doubt what you as an employer decides meets the standard of confidentiality and that directly translates to Paragraph 7.
In essence, who can successfully argue that I do not have the right to reasonably determine what parts of my business are confidential and proprietary? The answer is NO ONE can determine that, except me (or potentially a court) since I own and operate the business, and I am the one who can only determine what confidential and proprietary methods and processes would be damaged if they were to be unlawfully or otherwise disclosed to a third party.
This clearly proves that with such an agreement and policy in place, specifically designed and intended to protect yourself and/or the business, and that specifically delineates what was confidential and proprietary, that’s all you need to effectively be able to use credit reports in the hiring process for most if not all of your candidates.
That said, it is important to understand that the Mendoza law is essentially focused on relieving the stress on those who pose credit risks with regard to the general employment populous, namely blue collar jobs, and “lesser” skilled positions where a bad credit report shouldn’t really apply. Contrary to the mistaken beliefs of Governor Brown and Assemblyman Mendoza, most employers are not concerned with a janitor’s credit report.
In the end, the way to continue to use employment credit reports is to follow the law, use everything in the credit report except the payment history, and create a solid trade secrets and proprietary and confidential information policy and agreement with your employees that formally establishes that what you have is sacred and could result in the loss of business if compromised.
Once established, using employment credit reports is not a problem as long as you give proper notice to the Consumer, obtain written consent, follow the FCRA’s Pre-Adverse and Adverse Action Notice Requirements and rely only on the ID components and the employment histories, when the actual credit history does not apply.
September
13
2011
We’ve been providing comprehensive background checks for pre-employment screening for a long time and we wanted to share the top 5 tricks employment applicants are using to cheat drug tests. These pose real risks to employers and could lead to negligent hiring lawsuits.
- Rapid Detoxification — Many applicants will ingest anything from high quantities of cranberry to pickle juice, herbal concoctions and other digestive aids to cleanse the system. However, most drugs contain metabolites that stay in the body for several days and can be detected regardless of what they take to disguise the drug’s profile.
- Shy Tester — Some applicants try to avoid the drug-screening by showing up and claiming an inability to produce the required amount of urine. This way, the tester can try to secure the position first, hoping the drug screen slips through the bureaucratic cracks. But patience is a virtue and we make the applicant wait up to three hours and even then an applicant unable to provide a specimen is asked to provide a medical explanation for their inability to void a specimen. The absence of a medical explanation results in a refusal to test which has the same consequences as a positive test.
- The Switch — One of the most popular tricks is for an applicant to attempt to submit a ‘clean’ sample which did not come from their own body. Our process includes a step-by-step authorization, as well as a blood and urine screen, that immediately flags a sample if certain criteria, odd temperatures or unusual activity is noticed. We’ve even caught applicants trying to use unique prosthetic devices. The laboratories test every specimen to determine that it is in fact normal human urine.
- Pleading Invasion of Privacy — Another common strategy is for an applicant to deny the employer consent to the drug-screening, hiding behind an ‘invasion of privacy’ claim. A strict well-written company policy requiring the testing will hold up in all courts throughout the United States as grounds for not hiring someone or releasing someone from employment. Besides drug testing, APSCREEN uses every other service at our means to double check the applicant’s use of money, credit, neighborhood references, driving and criminal activities among other ways to identify if the applicant is hiding a problem. When we deliver the complete report, the employer can make an educated decision about hiring the individual.
- The Waiting Game—Other testers will concede to the drug-screening but ask for up to 90 days before showing for the test. This is a red flag that shows the applicant could be ‘dirty’ and needs time to clean up. Our process recommends the applicant be tested immediately upon being notified of selection for testing. Any delay caused by the applicant is duly noted and supplied in the final report.
According to the University of Buffalo’s Research Institute on Addictions, nearly 19 percent of on-the-job fatalities, the person dying tests positive for alcohol, drugs or both. Additionally, the federal government estimates that 71 percent of illegal drug users are employed. The Department of Transportation requires workers in the airline, railroad, trucking, pipeline, mass transit and shipping industries be regularly tested for drug use. Other non-regulated industries across the country are implementing drug free workplace programs at the request of employees in order to ensure a safer working environment.
We envision a ‘drug-free workplace’ for the safety and betterment of our economy. Our drug testing service administered by Florida Drug Screening and is Nationally Accredited for Administration of Drug and Alcohol Testing Programs (NAADATP) – a unique certification received by only 65 providers in the United States from the Drug & Alcohol Testing Industry Association (DATIA). We adhere to the highest level of service and legal compliance available as with all our services.
According to Joe Reilly of Florida Drug Screening, the key to identifying the ‘cheaters’ is consistent specimen collection procedures and use of laboratories certified by the United States Substance Abuse Mental Health Services Administration (SAMHSA). Reilly is currently the Chairman of the Board of Directors of the Washington DC based Drug and Alcohol Testing Industry Association (DATIA).
“This includes emptying of pockets, no overcoats or purses, or pocket books brought into the collection area, securing all sources of water, checking temperature of the specimen, observing for sights and sounds indicating falsification; and laboratory testing for adulteration and substitution,” – Joe Reilly
Reilly also said numerous Federal and State laws regulate the drug-screening industry and we like to keep our clients up to date on any specific changes that may be impacting the service.
Thomas Lawson is a Certified Fraud Examiner, Certified International Investigator and Expert Witness for lawsuits regarding negligent hiring, human resource management/compliance, employment screening as well as use, interpretation and compliance of FACTA/Fair Credit Reporting Act/CCRRA/Gramm-Leach-Bliley (Financial Privacy) Act in the HR Context.
September
12
2011
Well, for us, not much because the language is vague enough, and the justification for the use of the report easy enough so that those who presently use credit reports in the employment context can easily justify their continued use.
Also, like any law of this type, it is wholly subjective, and there is not really a “thou shalt not.” Only a “thou shalt be sure that the use is compliant, or justified,” so I am not really worried. About 1/3rd of our clients opt not to use them, and even in that context, we can still provide the ancillary benefits from pulling that report, (the ID verifiers, etc.) but not provide the actual meat of the credit information. We do that a lot at present for those who want the benefit of the report, but not the payment history, and that is highly compliant, even with AB 22 proposals.
Essentially the gist of the law is not to disqualify candidacy because of the PAYMENT HISTORY and if you don’t send that with the report, you are fine, but the value of the ancillaries in the report can still be included, as long as a decision is not made on payment history.
See text below. (The kicker is in paragraph 1, last part “confidential information”. Isn’t most company information “confidential” these days?; and in 2A :”managerial position” – that one is a no brainer.)
1024.5. (a) An employer shall not use a consumer credit report, as defined in subdivision (c) of Section 1785.3 of the Civil Code, for employment purposes unless the following criteria are satisfied:
(1) The information contained in the report is substantially job-related, meaning that the position of the person for whom the report is sought has access to money, other assets, or confidential information.
(2) The position of the person for whom the report is sought is any of the following:
(A) A managerial position.
(B) A position in the state Department of Justice.
(C) That of a sworn peace officer or other law enforcement position.
(D) A position for which the information contained in the report is required to be disclosed by law or to be obtained by the employer.
(b) This section does not apply to a person or business subject to Sections 6801 to 6809, inclusive, of Title 15 of the United States Code and state and federal statutes or regulations implementing those sections if the person or business is subject to compliance
oversight by a state or federal regulatory agency with respect to those laws.
(c) For purposes of this section, “managerial position” means a position held by a person who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
September
12
2011
In an effort to make communications with APSCREEN easier, we have expanded into other social media platforms. We setup a company page for APSCREEN on Facebook and our very own Founder and CEO Tom Lawson is now tweeting on Twitter. If you are currently on either Facebook or Twitter we encourage you to reach out to us and “like” or “follow” us. Check out the links below to the websites.
August
24
2011
This educational video provides information on the laws surrounding the landlord-tenant relationship in the following Kentucky jurisdictions: Barbourville, Bellevue, Bromley, Covington, Dayton, Florence, Lexington-Fayette County, Georgetown, Louisville-Jefferson County, Ludlow, Melbourne, Newport, Oldham County, Pulaski County, Shelbyville, Silver Grove, Southgate, Taylor Mill and Woodlawn. If you want information for the laws surrounding landlord/tenant laws in other jurisdictions, please visit kyjustice.org This video contains legal information and not legal advice. If you need legal advice, please consult an attorney.
August
24
2011
Get the True Benefit out of Employee Benefits Consulting Services
It’s a tough competitive world out there and most global enterprises comprehend the advantages of having satisfied employees at their workplaces. Having an inclusive employee benefits plan in place can be one of the sure-fire signs of ensuring that employees and their benefits can be taken care of. But are all enterprises of handling the same on their own? For such entities there are employee benefit services that they can engage in to keep attrition rates in check and having employees that can be retained easily. These services come with lots of benefits that ranges from planning and executing employee benefits schemes, which may also include employee health benefits, managing human resources etc. These services help provide enterprises with solutions to handle issues relation to life insurance plans of employees, their compensation and health insurance plans.
By equipping the enterprise with an optimized employee benefits consulting service solution, the enterprise can be assured of receiving legal advice for all compliance related requirements which may extend to handling of 401(k) plans as well. The best advantage is that with a good employee benefits service partner, global enterprises need not worry about the handling of employee benefit programs any longer. Since most employee benefits consulting vendors have experienced staff handling all client requirements, enterprises can be assured of having the best available service handling their employee’s requirements. So be it the handling of retirement or post retirement benefit services or medical or health insurance of any kind, with the right kind of employee benefits partner by its side, enterprises can be guaranteed of having a satisfied workforce.
Since global enterprises function in a globalized set-up they need to be aware of the local laws and about the general payroll practices in different host countries. Employee benefits services can handle all these complex demands rather easily with their global presence and their rich and varied experience. In the end for a global entity it is all about having a workforce that feels that they are being looked after and employee benefit services can do that a lot more. These services can help save a lot of money for enterprises and bring about better decision making skills for them thereby also help improve efficiency levels for the enterprise.
These services understand the importance of aligning their solutions as per the goals and objectives of the enterprise, therefore global entities can be assured of receiving tailor made solutions suitable for their specific enterprise requirements.
Know more information about – tax compliance services here.
Writing article is my hobby………………………………
A video explaining the law regarding disability benefits, ERISA, pension and employee benefits.
Video Rating: 0 / 5
August
24
2011
3 Lawsuits That Are Changing the California Labor Law Landscape
Employment lawsuits have risen to their highest peak in history, with almost 100,000 claims files in 2010, according to the EEOC. Incredibly, that number reflects a 31% increase from just 4 years ago! There is a never-ending flow of new court cases and decisions that change the employment landscape, making it extremely difficult for employers to stay ahead of the curve. Particularly in California, labor law evolves faster than federal law, adding to the complexity of employment compliance.
In the first half of 2011, employment and labor lawsuits in California have resulted in many important decisions that will directly affect the way employers in the state relate to their employees. Many of these cases have already been decided upon by the California Supreme Court, while others are still pending a decision.
Below is a brief outline of three key cases, and an important “take away” for employers from each one.
Summary: The Plaintiff was a senior executive at Google and claimed that he was discriminated against because of his age in a notoriously “young” corporate culture. To support his case, he relied on various comments by superiors and coworkers that his ideas were “obsolete” or “too old to matter,” that he was not a “cultural fit” and that he was an “old man” and an “old fuddy-duddy.” Google argued that none of these remarks were made in connection with any employment decision and should be deemed irrelevant “stray remarks.”
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The California Supreme Court rejected the notion that “stray remarks” made by non-managerial staff, or by supervisors outside of the disciplinary process, should not be given weight in court. Rather, such “stray remarks” may and should be considered in the context of the evidence and could be used towards reaching a final decision.
Take away: All managers should be aware of what is being said in the workplace, even in casual talk between employees, and to be proactive in eliminating derogatory or discriminatory remarks.
Summary: This employer’s corporate location was based in California, but had employees working out-of-state. Due to California’s dissimilar overtime laws, the employer paid the out-of-state employee based on his state of residency, and not according to California’s overtime regulations. The California Supreme Court is currently reviewing the case to determine if the California Labor Code applies to overtime worked in California for a California-based employer, by out-of-state workers.
Take away: While the case is still pending before the Supreme Court, employers should carefully review all state labor code guidelines.
Summary: The E.E.O.C. sued a California airport services company based on a male employee’s allegation that he was sexually harassed by a female co-worker and thus suffered from a hostile work environment. The California Ninth Circuit Court of Appeals reversed a summary judgment for the employer, emphasizing that Title VII of the Civil Rights Act entitles men, like women, to protection from an abusive work environment. The California Supreme Court eventually found in favor of male plaintiff.
Take away: Never just tell a male employee to “Be a man” or “Get over it”, if he claims of harassment. Take the claim seriously and conduct a proper investigation.
Most work related acts made by employers toward employees are not intentionally bigoted, malicious or discriminatory by nature. However, the complexity of labor laws in California demand that employers act with extreme caution when engaging employees and making employment decisions. In many cases, these actions can and will be brought against them in an employment lawsuit. As a reminder, California labor laws differ in many areas from Federal laws, so check with legal counsel before making any questionable employment decision or act.
Ari Rosenstein is the Director of Marketing at CPEhr, a Human Resource Services firm, specializing in outsourcing HR and PEO, servicing 15,000 employees and hundreds of clients nationwide.
CPEhr was founded in 1982 and assists small employers with the management of their employees. It provides an array of HR services including compliance with labor law in California, employment administration, employee health insurance benefits, safety consulting, training, recruiting and payroll and tax services.
August
5
2011
San Francisco considers barring employers, landlords from inquiring about arrests or convictions – latimes.com
Therein lies the rub – “which record belongs to the person I am interested in?”
There is a tremendous amount of “data” but which of it applies? That is why there is VERY HEAVY regulation in the Consumer Reporting Industry, and it amazes me how these firms can simply say “we are not a consumer reporting agency” when they are clearly one. That reduction in the costs of compliance and verification account for 98% of the difference in a $6 search versus an $85 search.
That is why when I say “you get what you pay for” you really do, and you also get the gift that keeps on taking which is the liability that goes along with it.
For those of you using cheapie background check services and social media websites now, especially with the FTA’s position statement on social media website use needing FCRA compliance, “you get what you pay for” means more now than ever before!
July
24
2011
Visit www.zamelaw.com or Call 818-469-3030 For more than 30 years, I have been providing a broad range of high quality legal services to a wide range of clients, including both businesses and individuals, throughout the greater Los Angeles area.
