Maryland bans the box

Maryland Bans the Box for private employers

NOTE: This article was initially posted in May 2013 and has been updated with new and current information.

As you may know, Ban the Box refers to removing the criminal convictions question from employment applications. Preferring that any discussion of criminal histories be done further along in the application process and in person. Hoping to make the process fairer for applicants.

In October of 2013, Maryland’s first Ban the Box law took effect. The law removed the criminal conviction question from State employment applications. At that time, there were only seven states with similar legislation.  Since then the Ban the Box movement has swept the nation with cities, counties, and states enacting laws. According to the National Employment Law Project, as of July 2019, there were thirty-five states and one hundred and fifty cities and counties that have Ban the Box laws. Thirteen states have laws that prohibit private employers from asking about criminal history on the application. As of January 1, 2020, Maryland became the fourteenth.

Maryland Private Employer law takes effect January 2020

The Maryland legislature passed a private employer Ban the Box law in 2019 only to have the law vetoed by the Governor. In one of the first acts of the 2020 legislature, the Maryland General Assembly voted to override the veto.

The new law states that, before the first in person interview, employers may not ask an applicant to disclose details about whether or not a criminal record exists. This law only applies to those employers with fifteen or more employees too include seasonal, temporary, and contractual employees.

So far only a few major corporations, such as Target and Walmart, have publically “Banned the box”.

Details of the laws procession through the legislative process can be found at http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0994/?ys=2019rs

Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

Smoke 'em if you got 'em? {Marijuana in the workplace}

Note: This article was originally posted in 2017 and has been updated with current information on the topic.

Oklahoma passed a medical marijuana bill in 2018 becoming the thirtieth state (Including Maryland) to do so. State by state the legalization of marijuana for medical and recreational purposes is gaining ground. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.

Decriminalization v. Legalization

So far thirteen states have decriminalized marijuana, allowing recreational use. Up from just eight in 2017. Those are Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, and Rhode Island. Nine states have legalized marijuana for recreational use (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) 

While this legislative activity is taking place on the state level, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice Department after Colorado legalized marijuana have not occurred.

Decriminalization does not mean legalization. Decriminalizemeans that possession of small amounts no longer carries criminal penalties. Most states offer a civil violation or no violation at all. Legalizedmeans that marijuana is completely legal to possess. In this case, states have set limits as to the amount that can be possessed and qualifications regarding trafficking.

High on the job

A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights)

Some businesses not only allow the consumption of marijuana at work, but they also encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. It should be noted that these businesses are mainly in the legal cannabis industry or tech fields.

What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.

American with Disabilities Act

The American with Disabilities Act  (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under state law but remains illegal Federally. Then there’s the Drug-Free Workplace Act of 1988 requiring that Federal contractors provide drug-free workplaces as a condition of receiving a contract.  The ADA states that employers can require employees to conform to the Drug-Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs. 

What the courts have found is that while marijuana remains illegal under federal law the ADA cannot be applied to individuals with disabilities. However, state disability laws may apply in states where medical marijuana use has been legalized.

Court challenges

Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on-site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on-site consumption but protects the medical marijuana cardholder against hiring discrimination. 

A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre-employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)

Another twist to the saga is the off-site or off-duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off-site medical marijuana use, the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case was the first to look at whether off-duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off-Duty Activities Statute. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees. 

In July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for an employee to use medical marijuana off duty. The ruling was based on the state’s anti-discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.

Maryland

Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. Dispensaries began opening in 2018. Maryland decriminalized possession of fewer than 10 grams of marijuana in 2014.  Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged. 

What to do, what to do…

While the use of marijuana is becoming more openly acceptable in society and states have either made it legal or decriminalized, businesses are still within their legal rights to set drug use policies and restrictions.

Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place. 

See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017

Languages spoken? June 2017

Ban the Box update August 2016

Health History Discrimination May 2016
Medical marijuana in workplace May 2013

History of leave

With the passing of mandatory paid sick leave by the Maryland legislature in January 2018 the idea for this post began as a look at the history of sick leave in the American workplace. Research revealed the reason why there are paid leave advocates. Leave from work, whether for sick or personal, is a relatively new concept as it applies to the American workplace. Still, this is probably a good topic for a little background.

During the agriculture phase of the America people worked as the farm dictated. Once the Industrial Revolution arrived factories sprung up with no shortage of workers. People lined up waiting for jobs. Employers could set wages and hours are they saw fit. There was little to no regulation. People worked six days a week for pennies an hour in deplorable conditions. If you missed work you weren’t paid or lost your job. These conditions continued well into the 20^th century until a president floated a new concept.

Starting a conversation

The idea of employee paid leave in the United States started with President William Taft in 1910 who thought that workers should have three months of vacation per year. Congress never bought into it but the conversation was started. Sixteen years later the work schedule began to change. The Ford Motor Company was one of the first, if not the biggest, company to offer employees a five day, 40 hour workweek. The policy went into effect in may 1926 at the urging of Henry Ford’s son, Edsel, who thought every man needed more than one a day a week for rest.

By the 1930’s, countries around the world had begun adopting paid time off for employees. The U.S. Department of Labor took up the fight again creating the Committee of Vacations with Pay to study why the U.S was so far behind the rest of the industrialized world. Nothing came from this committee.

It would be sixty some years later before the U.S government made significant changes. In 1993 the passage of the Family Medical Leave Act (FMLA) mandated twelve weeks of unpaid time off for workers to attend to their own or a family members medical issues. Leave from work agreements were, and still are, between employer and employee with no mandate for payment. While FMLA provided for leave without retribution from employers, the leave was still unpaid.  

There is not a statutory requirement for paid vacation in the U.S. Individual employers decide on what leave and type of leave to offer employees. Employer’s decisions on leave run the spectrum. A few companies are experimenting with unlimited leave while the majority offer some sort of paid time off. There are still small percentages that offer no leave.

Regarding statutory paid sick leave, currently nine U.S. states mandate it (Arizona, California, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, and Washington). Expect that number to grow in the coming years.

Please share this and any post. See the blog archive for other posts about employee benefits.

Smoke 'em if you got 'em? August 2017

Employee implants July 2017

What's in your wallet? May 2017

Workplace monitoring May 2016

Overtime history May 2016

The mighty have fallen

One of the biggest and repeated subjects of news for 2017 were charges of sexual harassment. Most notably the coming forth of victims in the entertainment industry. The topic so dominated the news that Time magazine made their 2017 Person of the Year all the women who came forward about sexual harassment.

Although it seems obvious, not everyone may know what constitutes sexual harassment. Especially in businesses with a small, familiar workforce. This is not a defense of the aggressors. Any reasonable person knows that touching and sexual comments have no place in the workplace, especially between supervisors and employees. But lesser degrees of harassment too include verbal, written, or pictorial may be thought of as accepted behavior. When in fact they meet the definition of harassment. This applies to the harassers and the victims. Victims either don’t realize that simple offenses rise to the level of complaint or do not feel that they can report the smaller incidents. Lines get crossed everyday.

Small business owners have to stay educated on changing cultures, how to protect themselves, and provide safe work environments. What was perceived as an acceptable work environment in the past is not today. This post hopes to address some of those questions.

Definition

Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964, which applies to all employers with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as:

unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature and also can include offensive remarks about a person’s sex (male/female/orientation). Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In 2016, EEOC received 6,758 charges alleging sexual harassment. Although the majority of cases are female victims, males filed 16.6% of the charges. The EEOC figures do not include charges and complaints filed with state authorities. Also not tabulated is the number of cases handled within the workplace and, of course, unreported cases.

Mind of the harasser

Dr. Ellen Hendriksen, provided four characteristics of a sexual harasser in an article written for the Psychology Today website Four Psychological Traits of Sexual Harassers November 9, 2017. Briefly, Dr. Hendriksen described harassers as someone who has a personality that enjoys exploitation, deception, and manipulation. They have the ability to disengage morally allowing them to justify their actions and create their own version of reality. Next harassers are employed in a male dominated field. This is important because women are the minority gender and more significantly targeted as victims of harassment. The last characteristic described by Dr. Hendriksen is an overall hostile attitude towards women. Harassers justify their actions as being normal and/or deserved. They feel they have done nothing wrong. Dr. Hendriksen summarizes by saying that, “harassment indicates a willingness to exploit and manipulate as a way to maintain or gain power. It demonstrates carelessness toward the victims and aims to keep them in their place.” Which might explain the powerful men who have had their harassment exposed.

Not reported

The majority of victims do not feel safe reporting any inappropriate behavior. Fear of retaliation is one of the main reasons victims do not come forward, that and humiliation. #WhyWomenDontReport has been viral several times since being started as an outlet for victims to share their stories. Just reading a few of the posts explains why victims may not report attacks for years or decades. Most of the posts support the reasons of retaliation and humiliation. Others relate how the victims believe that nothing will happen even if they do report the incident.

Unless the aggressor is publically boisterous with their behavior incidents of harassment rarely have witnesses. The strength in the complaints comes from the victims speaking out and sharing their stories. Even if complaints are made, the aggressors do not usually see a courtroom. Many states do not have specific sexual harassment laws or even workplace nondiscrimination laws. Charges are usually filed under the umbrella of other laws or in civil court. In order to get the complaint heard at the federal level charges must be filed with the EEOC. This is why you see quick dismissals with lawsuits filed at later times.

Companies are protecting themselves from legal action as well as their brand. They do not want to be seen as having a culture of harassment. If it can be shown that a company encouraged or did nothing to stop sexual harassment the employer could find themselves in court along with the aggressors.

Training and Education

A 2012 Supreme Court ruling held that a company could not be held responsible if there was an exercising of reasonable care to prevent and correct sexual harassment incidents.

A lot of small businesses view training as requirements for certifications or skills associated with the job functions of their employees. They sometimes miss the need to educate employees on issues facing the workplace. Employees not only need to improve their job skills, they need to learn how to conduct themselves in the workplace.

Be proactive. Don’t wait for a legal requirement to provide training. Twenty-five states have no requirements for sexual harassment training in the workplace. The other half range from: encouraging employers to provide training - only training supervisors - training for all employees. Some states, such as Maryland, will take into consideration a company’s training and education efforts when hearing complaints of sexual harassment. If a complaint is made against your business, you’ll want to be able to show the steps taken to prevent incidents and support provided to victims.

Training and education of employees should be held at regular intervals. Ensure all employees are made aware that any type of harassment will not be tolerated. They have to know that owners/executives/managers do not approve of and will not tolerate any form of harassment. Do not assume that everyone knows what constitutes harassment. Educate everyone on the basic definitions and provide the outlets necessary to receive and process complaints.

Have outreach efforts to ensure victims feel they have a safe environment in which to report incidents. This goes back to the company’s stance on the issue. If victims do not feel that they will be taken seriously and no action will be taken against aggressors, they will not file complaints. And even though a training and education program is in place, a hidden culture may still exist.

All reports must be taken seriously and employees must feel that they can make reports against any employee or supervisor without fear of retaliation. Which itself is a crime. But it is not enough to only take complaints. Management must conduct serious investigations and implement penalties when warranted.

Please share this and any post. See are blog archive for other posts on this topic.

Health history discrimination May 2016

Languages spoken? June 2017

Ideologies in the workplace August 2017

Workplace safety November 2017

Employee implants

In 1985, Dr. Hannis Stoddard invented an injectable microchip based pet recovery system. In the last decade Hollywood picked up on the theme by injecting humans with microchips. Who knows what goes on in the secret world of the military and espionage? This week a Wisconsin company made the news when it announced that employees had been offered microchip implants to use as a method for building access and food purchases. This is something that’s happening and is going to change the workplace.

What are Microchips?

Microchips are rice-sized radio frequency identification devices that use passive Near Field Communication (NFC) technology to transmit data when held a few inches away from readers. Passive meaning that the microchips hold data that the reader recognizes but the devices cannot receive data. The devices were popularized in the 1990’s for recovery use in pets, being injected under the skin in the neck/shoulder area.

The technology was tested for office uses in 1998 when British scientist Kevin Warwick experimented with microchip implants to open doors, and switch on lights. The technology has been experimented with since that time for commercial and medical uses with little success or popularity.

In January 2015, the Swedish company Epicenter began offering voluntary implants to its employees. The chips are used as a replacement for magnetic key cards to access secure areas and for use as payment in company stores. For human use in this manner, the microchip is inserted in the fleshy area between the thumb and forefinger. Three Square Market, a Wisconsin technology company, have partnered with the same Swedish company who conducted the inserts for Epicenter and plans on using the technology in the same manner.  This is the first time the technology has been used in a broad setting tagging workers.

Microchipping issues

All new technology brings concerns of privacy and security, which begets legal debate and regulation. In this instance the technology also raises religious concerns.

According the National Conference of State Legislatures, nineteen states have some law referencing microchipping. Five of those states (California, Missouri, North Dakota, Oklahoma, Wisconsin) have specific laws prohibiting the mandatory implantation of microchips. Some states currently use tag/bracelet based RFID technology to track prisoners. After some recent high profile escapes there has been legislative debate to use tracking implants on prisoners.

Mark Gasson is a British scientist who is a proponent of enhancing humans through the use of implanted technology. In 2009, Gasson inserted a microchip into his own hand and went on to demonstrate that not only could the device be hacked but could receive a computer virus. This and other experiments raise security concerns. Implanted microchips have the potential to store personal and health data. As with any data storage device, the implants would have to be protected against hacking.

Wearable technology is not new to the workplace. Watch like and other devices are used to track employees throughout their day. The November 2016 post, Employee monitoring, gave an overview of wearable tech in the workplace. The concerns raised were legality of employer access to health data as well as monitoring outside of the workplace. With implanted devices the concerns are the same except in this instance the employee cannot be separated from the monitoring device.

Another issue is of a religious concern. Christians believing that this type of technology is another step closer to the writings in the book of Revelation. The EEOC has ruled in favor of Christian employees in past cases where a company has implemented fingerprint scanning.

The few people I've spoken to have said no way. The Swedish company, Epicenter, has parties celebrating an employee's decision to be implanted. The Wisconsin company, Three Square Market, already has fifty employees agreeing to the implants.

Employers considering this or any type of employee tracking devices should do considerable research. Definitely work with an attorney to develop policies and updates to employee handbooks.

Technology is ever changing our world. Whenever any new piece of technology or approach to employee monitoring is introduced there will be legal issues. How the devices are deployed, what they are used for, how data is collected and stored, and what the data is used for will all present legal challenges.

George Orwell is probably very happy.

Read other posts regarding employee monitoring and privacy. Please feel free to share and like.

Employee monitoring November 2016

Social media checks July 2016

Workplace monitoring May 2016

Frequently Asked Questions

During my time providing investigative services to businesses the same questions regarding pre employment screenings and background checks were repeatedly asked. To address those questions, we developed a list of frequently asked questions, which are shared below. I hope this will help answer questions you may have and guide you through the hiring process.

·      What are an employer’s legal obligations?

• Fair Credit Reporting Act (FCRA). As of October 1, 1997 the FCRA requires that all employers who request background checks for pre employment screening purposes have a written consent from the applicant. 
• Civil Rights Act of 1964, Title VII. Employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job.
•  Equal Employment Opportunity Commission (EEOC. The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”
• National Labor Relations Act (NLRA) was enacted in 1935. The Act allows for the National labor Relations Board to enforce laws that give employees the right to act together for improved pay and working conditions, even if they are not part of a union. 

·      What is a “National” record check?

• We were always asked to conduct national criminal record checks. This request is difficult to explain because most people’s perception of the criminal justice system is marred by television. Simply put, there is no “national” database that houses criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. Conducting a non-law enforcement national background check would be better said as a “nationwide” check. To obtain a thorough picture of a person’s criminal past, all levels of government entities maintaining criminal records should be searched. Read our post "National" record checks, which further explains the subject.

If there is no national database, how do you get the most detailed information?

• Look for companies that search both public and commercial databases within the Federal, State, and County jurisdictions. Analyzing the information to ensure the utmost accuracy for your screenings.

·      What is “Ban the box”?

• Ban the box is national grassroots movement to remove the question, “Have you ever been convicted of a crime” from employment applications. Many State and local jurisdictions have passed laws removing the question from government employment applications.

·      What is Bright line hiring?

•  “Bright line” is a clearly defined rule or standard, generally used in law, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application. 
• A Bright line hiring example would be to not hire someone with a criminal record. Bright line hiring practices are dangerous for any business, as you may have violated the Civil Rights Act of 1964 or EEOC guidelines.

·      Can expunged records be located?

• Sometimes. The legal term “expunged” has different definitions in different states. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed”, but the other details of the case are the same. In Maryland, it means to remove from public inspection. 
• Although records are expunged, they are filed somewhere.  Third party vendors purchase data from government entities before records are expunged. They then resell that data. Although records get expunged, they remain active through third party vendors.

·      Why should I do pre employment checks?

• Avoid the expense of making a bad hire. Bad hires can cost as much as three times the salary of the job in question
•  Reduce liability: Putting current employees at risk by placing a violent person in the workplace.
• Find those with a propensity for violence. Workplace violence has been found to make up 18% of all crime.
•  Reduce of workplace accidents
•  Reduce resume puffing. One-third of resumes have some degree of puffery
•  Aid the applicant. During the process other names associated with the applicants’ social security number are regularly discovered. This information may help the applicant thwart identity theft.

·      Why can’t I just do checks myself?

• You can and many do. The Internet is a very powerful tool. The questions are: Do you have time? Do you know where to look? Do you know how to decipher the information you do find? Are you sure you are looking at the correct person?

See our blog archive and topic categories for more on this topic.

How well do you know someone? March 2017

Social Media Checks July 2016

FCRwhat? March 2015

Just checking local Internet records not enough December 2014

Convicted? Never convicted. October 2014

Have you ever been convicted of a crime? February 2014

What is the price of not doing a background check July 2013

"National" record checks April 2013

Ban the box

Languages spoken?

As a customer of almost any business there is a high probability that you will interact with someone who speaks in accented English or speaks little English. As an employer, there is also a high probability that your job applicants will speak in accented English. Customers should to be patient and polite; Employers need to be cautious of not violating the law.

A colleague had a difficult time placing an in person order with a store employee who spoke accented English. They asked me if it was illegal for employers not to hire people who had difficulty clearly communicating with customers. The short answer is, yes. Any employer that discriminates against an applicant for their accent or attempts to establish an English only policy without establishing a business necessity would more than likely be in violation of Title VII of the Civil Rights Act of 1964. Employers cannot use English only policies to discriminate against employees or prospective employees due to their accent or lack of English skills.

A lot of small business owners that I’ve encountered do not have documented hiring policies. They have a basic understanding of hiring laws, but still hire who they “like” with little documentation. Establishing a hiring component such as business necessity can be laborious for small businesses.

The Equal Employment opportunity Commission explains language discrimination as follows.

Discrimination Based on Accent

Treating employees differently because they have a foreign accent is lawful only if accent materially interferes with being able to do the job.

• Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English.
• Jobs that may require effective oral communication in English include teaching, customer service, and telemarketing to English speaking clients.
•   If a person has an accent but it is able to communicate effectively and be understood in English, he or she cannot be discriminated against.

Speak English Only Rules

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. 

•  A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
•  An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
•   Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
•  Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

The complete EEOC pamphlet on immigrant rights can be found at
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws

State laws may also apply to these hiring situations. Employers should always consult their employment law attorney before establishing any hiring requirements.

See the blog archive for other posts about hiring.

Hiring in the Millennial Age May 2017

Health History Discrimination May 2016

FCRAwhat? March 2015

Have you ever been convicted of a crime? February 2014

What’s in your wallet?

The salary question

The movement to remove the criminal history question from employment applications has been steadily gaining popularity over the last several years. Ban the Box (referring to the checkbox asking if an applicant has ever been convicted of a crime) laws have been enacted by cities, counties, and states. Most affect only government applications but a few apply to the private sector. They are currently 26 states and 150 cities and counties. Maryland is one of those states and the laws applies to state government applications only. While it is not against federal employment laws (past bills in Congress have failed) the EEOC strongly encourages employers not to base hiring decisions based on the applicant’s criminal history.

Another interview question under scrutiny is the salary question-“What is your current and/or most recent salary?” Proponents feel that asking the question will help correct salary disparities by not basing offers on past pay. Arguing that pay should be offered for the position, based on market values, not the person. Employers feel that the new laws are more government intrusion that affects hiring and hurts their overall business.

The attention to this question comes from the equal pay for women campaign, which is gaining popularity on political platforms. Women earn roughly 80 cents per dollar compared to men based on information form the U.S. Census bureau. This pay disparity tends to follow a woman throughout her career when new salary offers are based on current or past history.

Pay equity laws

As with Ban the Box, once the wave starts rolling it does not take long for cities and states to follow suit. The National Conference of State Legislatures lists 43 states with equal pay laws that prohibit discriminating between the sexes. However, Massachusetts was the first to enact a law that specifically prohibits paying a woman less than a man.

In August 2016, the Governor of Massachusetts signed into law the Pay Equity Act, which will take effect July 1, 2018. Under this law it will be illegal for employers: to pay men and women differently for comparable work, screen applicants based on past salaries, contact the applicant’s former company reference salary, and restricting employees from discussing their salaries.

After Massachusetts big cities quickly passed laws. Philadelphia became the first to enact such a law, which was to take effect in January 2017, but is delaying implementation awaiting a federal ruling on a petition to block the law. In April 2017, New York City barred employers from inquiring about salary information.

This issue is gaining attention at the federal level as well. In September of 2016 the Pay Equity for All Act of 2016 was introduced to the United States House of Representatives and is still in committee. The original proposal would make it illegal to screen prospective employees based on their previous wages or salary histories; ask for previous wages or salary; or fire or retaliate against any current or prospective employee because the employee opposed disclosing salary information.

Maryland’s equal pay act took effect October 1, 2016 when The Equal Pay for Equal Work Act of 2016 was enacted. The law applies to employers of any size and extends protections to gender identity as well as sex and bars employers from prohibiting employees from discussing or disclosing wages or those of another employee. The full law can be found at Maryland Equal Pay for Equal Work 

  

See our blog archive for more Ban the box and hiring discrimination posts:

Ban the Box update August 2016

Health History Discrimination May 2016

Students say ban the Box April 2016

Gauging one’s appearance May 2014

Have you ever been convicted of a crime? February 2014

Maryland Bans the Box May 2013

Should the box be banned? February 2013