California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Uniform Pay is Anything But Uniform: Should Yours Be Included in the Regular Rate of Pay?

Posted in Wage and Hour

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This blog post was authored by Shardé C. Thomas.

Public employers often require employees to wear uniforms and the employers may reimburse employees to cover the cost of maintaining or replacing the uniforms.  Some employers provide employees more than the cost of maintaining or replacing the uniform, either in an excess of caution or as a form of additional compensation.  But providing uniform pay can have FLSA implications.  Some types of uniform pay are considered mere reimbursements, but some types are considered compensation.  Here are a few things you need to know about uniform pay.

1.     Uniform pay may be excluded from the regular rate of pay.

The Fair Labor Standards Act excludes “reasonable payments” for certain expenses, including uniform reimbursement, from the regular rate of pay.  Therefore, if an employer provides employees with a reasonable amount to reimburse employees for uniforms and related costs, the uniform pay payment may be excluded when calculating the FLSA regular rate of pay for overtime purposes.

2.     Uniform pay should reflect the actual or reasonably approximate amount for maintenance of uniforms.

Uniform pay which reflects the actual or reasonably approximate amount for purchasing, laundering or repairing uniforms or special clothing an employer requires an employee to wear does not need to be included in the regular rate of pay.  This type of uniform pay is considered a reimbursement.

3.     Uniform pay in excess of the actual or reasonably approximate amount for maintenance of uniforms should be included in the regular rate of pay.

When employers pay an amount above what might be considered reasonable to maintain uniforms, that additional payment may be considered compensation for employees and required to be included in the regular rate of pay.  An Illinois federal court recently addressed this precise issue in Caraballo v. City of Chicago (N.D. Ill. 2013) 969 F.Supp.2d 1008.  A group of paramedics sued the City of Chicago for failing to include the $1250 the paramedics received annually as uniform pay in their regular rate of pay.  The Court determined the City was entitled to exclude at least some of the uniform pay from the regular reimbursement because at least some of the uniform pay reimbursed the paramedics for maintaining and cleaning the uniforms.  But the Court also determined that the City had not set forth evidence to show the amount of the uniform pay was the “actual or reasonably approximate amount” for maintaining the uniforms as intended.

If an agency reimburses employees for uniform pay with an amount in excess of what is reasonably needed to clean and maintain the uniform, the agency should include the excess amount in the regular rate of pay when calculating overtime pay for those employees.  To determine the excess over a “reasonable amount,” employers should review and maintain records and evidence of the “reasonable amount,” such as receipts for cleaning the uniforms or purchasing new ones.

 

Court of Appeal Holds That Actual Notice Must Be Provided to Police Officer Within the 1-Year POBRA Statutory Timeframe

Posted in Public Safety Issues

Gavel-and-Books.JPGOn November 13, 2014, the Third Appellate District in Earl v. State Personnel Board held that the notice of intended discipline required to be given to a public safety officer under Government Code Section 3304(d) must actually be provided to the officer within the one-year statute of limitations.

Subject to certain exceptions, Government Code Section 3304(d) states that no punitive action or denial of promotion against a peace officer may be taken if the investigation of the misconduct is not completed within one year.  Under this section of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), the one-year statute of limitations is triggered by the date “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation.…”  Plus, if a public safety department determines that disciplinary action will be taken, it must complete its investigation and “notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year.”  However, the department is not required to impose the discipline within that one-year period.

In the Earl case, on May 27, 2009, the California Department of Corrections and Rehabilitation learned that one of its parole agents, Baron Earl, engaged in potential misconduct when the Department discovered at a hearing regarding another employee that Earl may have conducted an unlawful search of a residence.  On May 27, 2010, after having completed an investigation and sustaining findings of misconduct, Earl was served, by certified mail, with a notice of intent to discipline him.  He received the notice of intent more than one year after the Department learned of the potential misconduct.  At his administrative hearing appealing the discipline, Earl argued that the notice he received was inadequate, as he received it late.  This argument was rejected, and his discipline was upheld.  Earl next filed an administrative mandamus petition making the same argument, and the petition was denied by the trial court.

Earl then appealed to the Court of Appeal and argued that he was entitled to “actual notice” of the contents of the notice of intent within one year of the date of discovery; not service by mail that was received after the one-year date of discovery. The Court of Appeal agreed.

On appeal, Earl argued that although civil service laws contained in the Government Code allow for serving notices of disciplinary action by personal service or by mail, peace officers are subject to an entirely separate statute, the POBRA, which requires actual notice, not constructive notice such as by mail.  Earl argues that basic principles of statutory construction provide that a statute that is silent as to the manner in which notice must be given contemplates personal service of said notice.  The Department of Corrections argued that the word “notify” in Section 3304(d) of POBRA allows for either actual or constructive notice.

The Court of Appeal relies on its 2007 decision in Hoschler v. Sacramento City Unified School District to hold that Section 3304(d) of the POBRA requires actual service of the notice of intent to discipline a peace officer within the relevant one-year statute of limitations.  In Hoschler, the Court of Appeal interpreted a provision of the Education Code which provided that a probationary teacher would be reelected and ultimately achieve tenure unless timely notified of non-reelection by March 15.  The School District had sent notice of non-reelection to a teacher by certified mail on March 12, and there was no evidence that the teacher evaded picking up his mail.  In Hoschler, the Court of Appeal held that where a statute is silent as to the method of notice, then personal service or some other method equivalent to imparting actual notice is required.

The Court of Appeal applies the same interpretive rule to Section 3304(d) in the Earl case and holds that service by mail as perfected by the Department was not adequate because he did not get actual notice of the contents of the notice of intent for discipline within one year of the date of discovery.

The Court of Appeal also states that Earl is not a case of willful evasion of notice, and concludes that the issue of evasion is thus not before it.  In a footnote, it cites to Sullivan v. Centinela Valley Union High School Dist. (2011), a case where a School District hired a probationary teacher for the 2006-2007 school year and reemployed him for the 2007-2008 school year. On March 10, 2008, the District’s human resources director told Sullivan that the District had decided not to recommend his reelection for the following school year and that he could resign in lieu of being non-reelected. Sullivan called in sick on March 11 and 12. On March 13, the District’s governing board approved Sullivan’s non-reelection against the wishes expressed by Sullivan’s attorney during the public comments portion of the board meeting. On March 14,  Sullivan called in sick. On March 15, the District personally delivered a non-reelection notice to  Sullivan’s home address of record and, because Sullivan was not home for the entire day on March 15, another resident accepted the letter on Sullivan’s behalf. On March 16, Sullivan returned home and read the non-reelection notice, one day after the deadline to get notice of non-reelection.  Sullivan challenged his non-reelection and sought a court order compelling the School District to reinstate him because the District was one day late in serving him with the non-reelection notice.

Sullivan clarifies how a non-reelection notice may be properly served in light of the Hoschler decision. In Sullivan, the court held that Mr. Sullivan had actual notice of his non-reelection, as required by Hoschler, i.e., before March 15. The Court found that substantial evidence existed to reasonably infer that Sullivan was evading attempts to personally serve the non-reelection notice, and held that the District’s failure to personally serve him under such circumstances was excusable. Importantly, the court found that Sullivan had actual notice that the board would not reelect him for the following school year on March 10, when the District’s human resources director gave Sullivan the option of resigning in lieu of being non-reelected by the board. The court further found that Sullivan’s actual knowledge of his non-reelection was evidenced by his attempts to avoid personal service of the notice.

The Earl Court’s citation to Sullivan is significant, as it leaves the door open for law enforcement departments to make arguments for other forms of service, such as certified mail to be received before the expiration of the one-year statutory period.  This is the case especially where there is evidence of a peace officer evading personal service of a notice of intent for discipline.  However, every effort should be made to complete the investigation and draft the notice of intent for discipline in a fashion to allow time for personal service.  Further, if there is evidence that a peace officer is evading service, then that should be documented and service in some way other than personal service that provides the officer with actual notice of the intention to discipline should be effectuated before the expiration of the one-year statutory time limit.

New Annual Reporting Requirements for Employers under the Affordable Care Act

Posted in Healthcare, Public Sector

Healthcare.jpgThis blog post was authored by Heather DeBlanc.

The Affordable Care Act (“ACA”) will require Applicable Large Employers (i.e. large employers subject to the employer mandate) and employers sponsoring self-insured plans to comply with new annual Internal Revenue Service (“IRS”) reporting requirements.  The first reporting deadline will be February 28, 2016 as to the data employers collect during the 2015 calendar year.  The reporting provides the IRS with information it needs to enforce the Individual Mandate (i.e. individuals are penalized for not having health coverage) and the Employer Mandate (i.e. large employers are penalized for not offering health coverage to full-time employees).  The IRS will also require employers who offer self-insured plans to report on covered individuals.

Large employers and coverage providers must also provide a written statement to each employee or responsible individual (i.e. one who enrolls one or more individuals) identifying the reported information.  The written statement can be a copy of the Form.

The IRS recently released draft Forms 1094-C and 1095-C and draft Forms 1094-B and 1095-B, along with draft instructions for each form.

Which Forms Do I File?

Employer Description Applicable Forms
Applicable Large Employer Offering Fully-Insured Coverage 1094-C and 1095-C(except Part III)
Applicable Large Employer Sponsoring Self-Insured Coverage 1094-C and 1095-C(incl. Part III)
Applicable Large Employer Offering Self-Insured Coverage to Non-Employees (e.g. retirees/COBRA qualified beneficiaries) 1094-C and 1095-C(except Part III);

1094-B and 1095-C

Small Employer (non-ALE) Sponsoring Self-Insured Coverage 1094-B and 1095-B
Small Employer Offering Fully Insured Health Plans Not Applicable

When?

Statements to employees and responsible individuals are due annually by January 31.  The first statements are due January 31, 2016.

Forms 1094-B, 1095-B, 1094-C and 1095-C are due annually by February 28 (or by March 31, if filing electronically).  The first filing is due by February 28, 2016 (or March 31, 2016, if filing electronically).

Even though the forms are not due until 2016, the annual reporting will be based on data from the prior year.  Employers need to plan ahead now to collect data for 2015.  Many employers have adopted the Look Back Measurement Method Safe Harbor (“Safe Harbor”) to identify full-time employees under the ACA.  The Safe Harbor allows employers to “look back” on the hours of service of its employees during 2014 or another measurement period.  There are specific legal restrictions regarding the timing and length of the periods under the Safe Harbor, so employers cannot just pick random dates.  Employers also must follow various rules to calculate hours of service under the Safe Harbor.  The hours of service during the measurement period (which is likely to include most of 2014) will determine whether a particular employee is full-time under the ACA during the 2015 stability period.  The stability period is the time during which the status of the employee, as full-time or non-full-time, is locked in.  In 2016, employers must report their employees’ full-time status during the calendar year of 2015.  Therefore, even though the IRS forms are not due until 2016, an employee’s hours of service in 2014 will determine how an employer reports that employee during each month of 2015.  Employers who have not adopted the Safe Harbor should consider doing so because it allows an employer to average hours of service over a 12-month period to determine the full-time status of an employee.  If an employer does not adopt the Safe Harbor, the IRS will require the employer to make a monthly determination, which is likely to increase an employer’s potential exposure to penalties.

What Must the Employer Report?

Form 1095-C

There are three parts to Form 1095-C.  An applicable large employer must file one Form 1095-C for each full-time employee.  If the applicable large employer sponsors self-insured health plans, it must also file Form 1095-C for any employee who enrolls in coverage regardless of the full-time status of that employee.

Form 1095-C requires the employer to identify the type of health coverage offered to a full-time employee for each calendar month, including whether that coverage offered minimum value and was affordable for that employee.  Employers must use a code to identify the type of health coverage offered and applicable transition relief.

Employers that offer self-insured health plans also must report information about each individual enrolled in the self-insured health plan, including any full-time employee, non-full-time employee, employee family members, and others.

Form 1094-C

Applicable large employers use Form 1094-C as a transmittal to report employer summary information and transmit its Forms 1095-C to the IRS.  Form 1094-C requires employers to enter the name and contact information of the employer and the total number of Forms 1095-C it submits.  It also requires information about whether the employer offered minimum essential coverage under an eligible employer-sponsored plan to at least 95% of its full-time employees and their dependents for the entire calendar year, the number of full-time employees for each month, and the total number of employees (full-time or non-full-time) for each month. 

Form 1095-B

Employers offering self-insured coverage use Form 1095-B to report information to the IRS about individuals who are covered by minimum essential coverage and therefore are not liable for the individual shared responsibility payment.  These employers must file a Form 1095-B for each individual who was covered for any part of the calendar year.  The employer must make reasonable efforts to collect social security numbers for covered individuals.

Form 1094-B

Employers who file Form 1095-B will use Form 1094-B as a transmittal form.  It asks for the name of the employer, the employer’s EIN, and the name, telephone number, and address of the employer’s contact person.

Failure to Report – What Happens?

The IRS will impose penalties for failure to timely provide correct written statements to employees.  The IRS will also impose penalties for failure to timely file a correct return.  For the 2016 reporting on 2015 data, the IRS will not impose a penalty for good faith compliance.  However, the IRS specified that good faith compliance requires that employers provide the statements and file the returns.

More Information

Liebert Cassidy Whitmore will host a webinar on the ACA reporting requirements on December 11, 2014.  For more information, please visit http://www.lcwlegal.com/december-aca-webinar.  You may also find additional information on the ACA at http://www.lcwlegal.com/ACA.

 

California Supreme Court to Hear Issue of Peace Officer Personnel Files

Posted in Public Safety Issues

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On August 11, 2014, the Court of Appeal in People v. Superior Court (Johnson) considered the interplay between the United States Supreme Court’s 1963 decision in Brady v. Maryland, which requires the prosecution’s disclosure of evidence that is favorable and material to the defense (including evidence of dishonesty, bias or moral turpitude on the part of a peace officer) and the statutory discovery procedures articulated by the California Supreme Court in Pitchess v. Superior Court, which provide that peace officer personnel records are “confidential and shall not be disclosed in any criminal or civil proceeding except by discovery” pursuant to Evidence Code section 1043.  In doing so, the Court of Appeal held that a prosecutor’s preliminary inspection of a peace officer’s personnel files for purposes of identifying Brady material does not violate Penal Code section 832.7(a), and does not require the filing of a Pitchess motion.  The Court further found that if a prosecutor identifies Brady  material, he or she must then file a Pitchess motion before disclosing said evidence to the defendant.

On September 18, 2014, the City and County of San Francisco and the San Francisco Police Department (“SFPD”) petitioned the California Supreme Court for review.  The California Supreme Court granted review on October 29, 2014.

The primary issue before the Supreme Court is whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files if the purpose of such access is to search for Brady material that may be subject to disclosure to a criminal defendant.

Criminal defendant, Daryl Lee Johnson, was charged in November 2012 with hitting a female minor in the head in a San Francisco home. After a disclosure by the SFPD that two officers involved with the Johnson arrest had Brady material in their personnel files, the prosecution brought a Pitchess motion.  Criminal defendant Johnson argued to the trial court that Penal Code section 832.7 is unconstitutional to the extent that it bars the prosecution from access to peace officer personnel records to comply with Brady.  The trial court agreed with Johnson and directed SFPD to give the prosecutor access to the peace officers’ personnel records to allow the prosecution to comply with Brady.  The City and County of San Francisco and the District Attorney filed a writ petition challenging the trial court’s decision.

On appeal, the Court of Appeal analyzed Brady and found that it requires the prosecution team to divulge impeachment or exculpatory evidence to the criminal defense, even where the evidence is known only to the police and not to the prosecutors, thereby creating an obligation for the prosecutor to learn of any evidence.

The Court of Appeal drew a distinction between the identification and disclosure stage of the Brady process.  The identification phase requires access to the peace officer personnel files to determine whether Brady material exists.  The Court of Appeal concluded that a prosecutor is not precluded from reviewing the files to identify whether Brady material exists, and does not need to file a Pitchess motion because the disclosure at this stage is not publicly disseminated.  Because the prosecutor and the police are a single prosecution team, prosecutors can examine the records without violating confidentiality, the Court of Appeal said in a 3-0 ruling.  The Court of Appeal further noted when and if the prosecution finds Brady material, then the prosecution’s duty to disclose is triggered and thus, the prosecution must then file a Pitchess motion to determine what material, if any, will be disclosed to a criminal defendant.  The effect of the Court of Appeal’s ruling is that it takes the identification phase out of the hands of the police/sheriff’s departments, and puts it in the hands of the prosecution.

In its Petition for Review to the California Supreme Court, the City and County of San Francisco and SFPD argue that the Court of Appeal’s ruling contradicts published decisions that require a prosecutor to first file a Pitchess motion to get access to otherwise confidential peace officer personnel files.  The Supreme Court granted review on October 29th.  We will continue to update you about this important case.

Tips from the Table: Interacting with City Council

Posted in Labor Relations, Negotiations

We are proud to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Performance Evaluations: Why It’s A Good Thing For Public Employers

Posted in Personnel Issues, Workplace Policies

ClipboardIn the corporate world, the practice of giving annual performance reviews to employees is under attack.  Leading business magazines and newspapers have printed articles advocating for the elimination of performance evaluations.  There are even books in the marketplace that teach companies how to get rid of performance reviews.  Among the reasons for eliminating annual evaluations is that the process is a waste of time, bad for morale, and unnecessarily creates conflicts between employees and supervisors.  So, if private employers are moving towards eliminating annual evaluations, should public employers also do away with them?

The short answer is “no.”  The primary reason for this is the difference between private and public employment.  Generally, private sector employees are “at-will” meaning they can be terminated at any time without notice and for any non-discriminatory reason or no reason at all.  By contrast, public employees usually have a vested right to continued employment and this property right cannot be taken away without first being afforded certain procedural safeguards pre- and post-discipline.  These due process protections place the burden on public employers to show there are factual grounds for the discipline and that the level of discipline is appropriate.  One way public employers can satisfy this burden is by using performance evaluations.  Therefore, it is critical that public employers continue the practice of giving annual performance reviews.

Now, in fairness to proponents of getting rid of annual evaluations, those proponents do not support giving no feedback at all on employee performance.  They also recognize the employer’s need to motivate, direct and improve employee performance.  Rather, they are encouraging employers to replace the annual review with “check-in” meetings that occur throughout the year where supervisors can regularly discuss the employees’ performance and what is needed from them.  We agree with this approach and train employers that regular “check-ins” should be part of an on-going process of assessing employee performance throughout the entire year that culminates in the employee’s annual performance evaluation.  In other words, the annual evaluation is the final chapter in a year-long review process.

Another fair criticism of annual evaluations from critics is that they are ineffective because they are usually poorly written.  Some supervisors view annual performance evaluations with dread because they are time consuming or because the supervisors are uncomfortable with having to honestly assess employees.  Consequently, it is no surprise that written evaluations can fall short.  The following are a few tips for giving effective annual evaluations:

Observe Employees’ Performance During the Entire Evaluation Period

The evaluation should reflect performance over the entire evaluation period, not just the few weeks or months before the evaluation is given to the employee.  This makes it important for supervisors to observe and assess the employee’s performance throughout the year and keep a record of it.  As these observations are being made, supervisors should also make it a point to address performance issues with the employee as they arise.  Not only is it important to raise performance deficiencies with the employee as they come up, but supervisors should also make a point of praising employees when they do a good job.

Use S-P-I-R-I-T When Writing the Evaluation

The comments in the evaluation should be written with S-P-I-R-I-T.  This means that the comments should be Specific, have Purpose, and identify specific performance Incidents that the employee did well and where improvement is needed.  Where misconduct has occurred, the comments should also reflect workplace Rules that were violated and the Impact the performance problems have caused to the employer, other employees and/or members of the public.  Finally, the Timelines for giving evaluations in your agency’s rules should be followed.

Make Time to Meet with the Employee to Go Over the Evaluation

After the evaluation is written, supervisors should meet with each employee to discuss the evaluation.  Too often, employees complain that their supervisors just give them their evaluations to review on their own.  This is a poor practice.  Successful personnel management requires effective communication.  Therefore, supervisors should make time to meet with employees, provide honest and constructive feedback, recognize accomplishments, and develop a plan for improvement, if necessary.

For more tips on writing performance evaluations see our workbook on Evaluation and Discipline.

Some Relief for CalPERS Employers Faced With Arrears or Payroll Adjustments

Posted in Retirement

Retirement-Sign.jpg This blog post was authored by Steven M. Berliner

We have discussed in prior blog posts that more and more agencies are being audited by CalPERS.  The auditors may find that compensation was not reported correctly or that individuals (such as certain part-time employees or consultants/independent contractors) who were not enrolled as members should have been enrolled.  Sometimes the retroactive period can be years or even decades.  In addition, we have noticed a trend by former independent contractors to claim employee status for the services provided.  Given these trends, it is likely your agency will eventually be faced with having to either make adjustments to previously reported compensation, or will need to enroll a former employee or independent contractor for prior service.

Under the current version of Government Code section 20533, the contributions required  on those corrections had to be made at the employer’s current contribution rate.   This requirement has been extremely expensive for agencies, as employer rates have grown significantly over the years.

AB 2472 made changes to Government Code section 20533, which become effective on January 1, 2015.  From that date, employer contributions in these circumstances will be set at the rate in effect at the time the compensation was earned.  CalPERS put out a Circular Letter last week on this issue.

Payroll adjustments and/or enrolling individuals retroactively can be unexpected and expensive.  This statutory change should take some of the sting out of these obligations.

Temporary Employees: Are They Your Employees?

Posted in Wage and Hour

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This blog post was authored by Michelle Meek.

Many public employers turn to staffing companies to fulfill their temporary staffing needs. Although staffing companies offer quick access to qualified workers, employers should be aware that there are FLSA implications:

  • Joint Employer

A public agency and a staffing company are generally considered “joint employers” if both entities govern the essential terms and conditions of employment.

  • Wages and Overtime

Joint employers are individually responsible for compliance with the Fair Labor Standards Act (FLSA). The FLSA requires that employers pay their employees overtime and a minimum wage. Although public employers will certainly pay the staffing agency more than minimum wage for a temporary employee’s work time, the public employer should also ensure that the amount the individual actually receives complies with the FLSA.

  • Recordkeeping and Reporting

The FLSA requires that employers keep certain records for each nonexempt employees, and this applies even to temporary employees who may only work with the employer for a few days or weeks. The FLSA requires that the employer maintain, for example:

  • Employee’s full name and social security number.
  • Address, including zip code.
  • Time and day of week when employee’s workweek begins. Hours worked each day and total hours worked each workweek.
  • Regular hourly pay rate.
  • Total overtime earnings for the workweek.
  • Total wages paid each pay period.
  • Date of payment and the pay period covered by the payment.

An employer must retain these records for approximately three years.

  • Other Considerations

Public agencies employing temporary employees through staffing agencies are also required to comply with many laws providing for leaves, benefits, and worker’s compensation.

Because a public agency may share legal responsibility for temporary workers employed through a staffing agency, we suggest that employers ensure that temporary employees receive the benefits required by law.

Screening Applicants With Domestic Violence Criminal History

Posted in Employment

Employment-Application.pngThe National Football League’s handling of several recent high-profile domestic violence incidents involving players Ray Rice, Greg Hardy and Jonathan Dwyer has raised the national consciousness regarding how employers handle domestic violence issues. Domestic violence has been, and continues to be, a prevalent problem that creates many challenging issues for employers.  A recent Centers for Disease Control and Prevention study found that domestic violence victims lose a total of nearly 8.0 million days of paid work which is the equivalent of more than 32,000 full-time jobs as a result of the violence.  Employers have to consider issues including workplace security, whether discipline is appropriate for off-duty conduct, and handling accommodations for the victims of domestic violence.

Because of the many challenges that employers face, the natural inclination may be systematically to screen out all job applicants who have any criminal history of engaging in domestic violence, so that the agency can protect against the pernicious effects of domestic violence on the workplace.  However, employers should be extremely cautious in screening for particular types of criminal history, including when it involves domestic violence. Employers must comply with all applicable federal and state laws regarding the collection and consideration of criminal history records.

California “Ban the Box” Law

Since July 1, 2014, California state and local agencies are prohibited from making any inquiry about conviction history on the initial employment application.  This does not mean that the employer cannot inquire about convictions at all.  Rather, criminal background inquiries can only be made after the employer has established that the applicant meets the minimum qualifications of the position. This does not apply to those positions in which the agency is required by law to conduct a criminal history background check (e.g., peace officers) or to positions within a criminal justice agency.

Once minimum qualifications have been established, the employer can ask about criminal convictions. In California, with the exception of peace officers, the agency still cannot ask about arrests not resulting in convictions.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination based on race, color, national origin, and other protected classifications. The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII. According to the latest EEOC Guidance on the use of criminal records information, blanket criminal record exclusions may have a disparate impact on African-American and Hispanic applicants. While a policy that automatically screens out applicants with a domestic violence criminal history does not on the face of it discriminate against any protected classification, employers must avoid creating a disparate impact on any protected group.  If an applicant can establish that the policy has a disparate impact, then the employer must show the policy is job related for the position in question and consistent with business necessity.

To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity, the employer needs to show that the risks inherent in the duties of a particular position are enhanced by the applicant’s previous criminal conduct.  In the case of a domestic violence conviction, the employer would need to show that this specific offense demonstrates unfitness for the job the applicant  seeks.  Consider, for example, whether a domestic violence conviction makes an applicant for a data entry position unfit to perform the duties of that job.  Ostensibly, an applicant with a domestic violence conviction could satisfactorily perform a data entry job as well as an applicant without such a conviction.  Thus, the criminal conduct does not necessarily demonstrate unfitness for the position and an automatic exclusion from this position based on the criminal conviction is not likely to be found sufficiently job related and consistent with business necessity.

The EEOC Guidelines describe three factors that the employer should consider when assessing criminal records:

  1. The nature and gravity of the offense or conduct (evaluating the harm caused, the elements of the crime, and whether the crime was a felony or misdemeanor);
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought (including essential functions, specific duties and environment).

The EEOC Guidelines state that employers will “consistently meet the ‘job related and consistent with business necessity’ defense” if the employer develops a targeted screen considering at least the three factors listed above, and then provides an opportunity for an individualized assessment for applicants excluded by the screen.

An individualized assessment means the employer:

  1. informs the applicant that he or she may be excluded based on his or her criminal record;
  2. offers the applicant an opportunity to explain why the exclusion should not apply  (for example, an applicant may be able to show the record has misidentified him, or contains other inaccuracies); and
  3. considers whether the applicant should continue to be excluded.

If the applicant refuses to provide any additional information about his or her background, the employer may make its employment decision without the information.

In sum, while a policy that automatically excludes applicants with a domestic violence criminal history may seem like a good idea, employers should refrain from having blanket screening policies that are not narrowly tailored for the specific job, because those policies may well run afoul of Title VII.  As the EEOC guidance provides, the best practice is to have a targeted screen based on the three assessment factors listed above and to provide an individualized assessment.