On September 19, 2012, the Newark Municipal Council passed Ordinance 12-1630, which limits employers' ability to conduct criminal background checks. The ordinance, which goes into effect November 18, is the latest effort in a recent trend attempting to curb employers' inquiries into the criminal history of applicants.
Ordinance 12-1630 prevents employers with five or more employees who do business, employ persons or take applications for employment in the City of Newark, from asking applicants about their criminal history. If an applicant voluntarily discloses this information, the ordinance does not prevent the employer from discussing the information disclosed. The ordinance also provides that employers may not produce or disseminate any advertisement that in any way limits eligibility for employment based on an applicant's criminal history.
Once a conditional offer of employment is made, employers may make certain criminal history inquiries, such as:
Employers may not, however, inquire about, require any applicant or employee to disclose, or take any adverse action against an applicant or employee based on any arrest not then pending and which did not result in a conviction; on any records that have been erased, expunged, pardoned, or nullified; or on any juvenile adjudications of delinquency (generally, crimes committed as a juvenile) or any records that have been sealed. Employers may still make inquiries where any federal or state law requires the consideration of an applicant's or an employee's criminal history for the purposes of employment, provided this exemption is limited to those offenses the federal or state law requires the employer to consider.
Employers may not make criminal history inquiries unless they make a good-faith determination that the position in question is of such a sensitive nature that a criminal background check is required. In such cases, employers must notify applicants that a criminal background check is being conducted and obtain written consent authorizing the specific inquiry.
When evaluating criminal information, employers must consider several relevant factors, including the nature of the crime and its relationship to the duties of the position sought, any information pertaining to the applicant's or employee's degree of rehabilitation and good conduct, whether the prospective job provides an opportunity for the commission of a similar offense, whether the circumstances leading to the offense are likely to reoccur, how much time has elapsed since the offense, and whether any certificate of rehabilitation has been issued by any federal or state agency. Employers must document their consideration in an Applicant Criminal Record Consideration form and provide this form to any applicant who has a conditional offer revoked because of his or her criminal history. Employers must also provide applicants with the relevant portions of the ordinance at this time and must notify applicants of their opportunity for review of the accuracy and or relevance of the results of the inquiry.
The ordinance also addresses the procedures employers must take when an adverse employment action is taken against a current employee. In such cases, as with denials of applications, employers must notify the employee of the adverse employment decision, provide a copy of the results of the inquiry and a written notice of the decision explaining the reasons for the decision, and again advise the employee of the opportunity for review.Fines for violations of the ordinance can be as high as $1,000 for each occurrence. To avoid these fines, employers should consider altering their application forms to remove inquiries about criminal history, training hiring managers and human resource representatives about the provisions of the ordinance, and carefully evaluating the circumstances of each application for employment to determine whether to go forward with criminal background inquiries. Additionally, employers should remain aware of various other federal and state restrictions addressing these practices, including the EEOC's recent guidance, the federal Fair Credit Reporting Act and its New Jersey equivalent, as well as a pending New Jersey bill to similarly restrict such inquiries.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."
Day Pitney Alert
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.