Massachusetts Court Delay Updates

CEO, Christine Cunneen, along with other members of the NAPBS Government Relations – Access Subcommittee met with the Massachusetts District Court Administrator to address delays faced by CRAs in dealing with Massachusetts court records.  Improvements with speed and availability have already been noted.  See below for more information:

 

 

Attention New York City Employers: Salary History Law Goes into Effect on October 31st

As of October 31, 2017, all New York City employers, regardless of their size, are prohibited from inquiring about a job applicant’s salary history during the hiring process.

While the law continues to allow employers to engage in discussions with prospective employees about salary and benefits expectations, it is now an unlawful discriminatory practice for an employer in New York City to:

  • inquire into the salary history of an applicant or
  • to rely on the salary history of an applicant to determine the salary, benefits, or other compensation during the hiring process.

The term “inquire” includes searching public records for an applicant’s compensation history.  It is important to note that inquiries would violate the law regardless of whether they are made before or after a conditional offer.  However, if a prospective employee volunteers such information, without prompting, the employer may consider it.  The New York City Commission on Human Rights has also included some guidance in the form of Frequently Asked Questions.

Best Practices Tip:  Employers in New York City should exclude any written or oral references to salary history, including compensation and benefits and train their hiring personnel accordingly to stay in compliance with the new law.  They should also keep detailed documentation on what factors besides salary history went into the salary offer decision.

Full text of the New York City law.

California’s New Fair Chance Act Expands ‘Ban the Box’ More Than Just Geographically

The Governor of California signed several employment bills into effect this month, including statewide ban the box legislation.  These new laws become effective on January 1, 2018 and will have significant impacts on employers within the entire state.

AB 1008, the California Fair Chance Act, prohibits employers with five or more employees from asking about an applicant’s criminal records or conviction history until that applicant has received a conditional offer of employment.  Then, and only then, may an employer inquire as to the applicant’s criminal history.

The California Fair Employment and Housing Act (FEHA) issued final regulations, effective July 1st 2017, on the consideration of criminal history in employment decisions and this bill confirms what was provided therein.  Specifically, that it is an unlawful employment practice under FEHA for a California employer to consider, distribute, or disseminate information about any of the following:

  • Arrest not followed by a conviction (except in limited circumstances),
  • Referral to or participation in a pretrial or post-trial diversion program
  • Convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

The legislation goes further to require employers who intend to deny employment because of a criminal record to make an individualized assessment of that applicant.  They must consider the age, nature, and gravity of the offense and do so with particular regard to the position for which the applicant has applied.  This assessment should be consistent with EEOC Guidelines in the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

If an employer makes a preliminary determination based on the assessment to deny employment, the employer must notify the applicant of the reasons for that preliminary decision in writing and must include the following:

  • The conviction item that is the basis for the potential denial.
  • A copy of the conviction history report.
  • Explanation of the right to respond, and time limit thereof, which shall include the right to submit evidence disputing the accuracy of the report, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has five business days to respond with a dispute of accuracy or information that supports mitigation or rehabilitation.  If, within the five business days, the applicant notifies the employer in writing of a dispute or mitigating circumstances, then the applicant shall have five additional business days to respond to the notice.

The employer shall consider information submitted by the applicant during the pre-adverse process prior to making a final decision on hiring the applicant.  If that final decision is to deny employment, an employer must notify the applicant in writing with the following information:

  1. The final denial.
  2. Any existing procedure the employer has to challenge the decision or request reconsideration.
  3. The right to file a complaint with the Department of Fair Employment and Housing.

Best Practices Tip: California employers should act now to prepare themselves for implementation of this new law to ensure they are in compliance, as of January 1, 2018.  They should update their employee and hiring manuals and train hiring personnel to avoid all questions pertaining to criminal histories until a conditional offer of employment has been made and to ensure proper handling of the use of criminal records in the hiring process.

California Bans Salary History Questions

As of January 1, 2018, California employers will no longer be able to ask a job applicant about his or her salary history.  California joins three other states (Delaware, Oregon, Massachusetts), three cities (New York City, Philadelphia*, San Francisco), and Puerto Rico, all of which have similar laws prohibiting employers from seeking or relying on an applicant’s salary history when making hiring and compensation decisions.  Under AB 168, employers:

(1) May not ask, either orally or in writing, personally or through an agent, for an applicant’s prior salary history, including compensation and benefits needs and requirements;

(2) May not consider such information, if it is learned, in determining whether to offer employment to that applicant and if so, what compensation package should be offered; and

(3) Must provide a pay scale for the position being applied for upon reasonable request of the applicant.

There are very few caveats to these rules.  For example, applicants are not prohibited from voluntarily, without any prompting by the employer, disclosing their salary history, and if they choose to do so, employers may consider that information.  Additionally, the law does not apply if the salary history is disclosable to the general public pursuant to federal or state law.  Finally, the law does not define “pay scale” or “reasonable request.”

While proponents argue that this law will help to narrow the gender wage gap, many employers and other groups point out that it eliminates not only their ability to attract the right people to the positions, but also their ability to negotiate a fair wage, without fear of a lawsuit if they say the wrong thing.

California employers must act now to prepare themselves for implementation of this new law to ensure they are in compliance.  They should update their employee and hiring manuals, train hiring personnel to avoid all questions pertaining to salary histories, including benefits packages, and establish pay grades for each position to be able to respond to requests from applicants.

*The Philadelphia law is currently being challenged.

Effective Date for New Form I-9 is September 18th

The USCIS released a revised version of Form I-9, Employment Eligibility Verification on July 17, replacing the current version (dated November 14, 2016).  This is the second mandatory change in less than one year.  While the changes are generally minor in nature, all employers will be required to use the new form (dated July 17, 2017) as of September 18, 2017.  Employers may use the previous or the current form through September 17.  However, after that date, all previous versions will not be acceptable.

There are changes to both the instructions and the List of Acceptable Documents on Form I-9, with the goal of easing navigation of the form.
The new Form I-9 instructions:
Remove “end of” from the phrase “first day of employment” when describing the day on which the Form I-9 completion is required; and
Revise the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section (IER).
Another revision includes the addition of the Consular Report of Birth Abroad (Form FS-240) to List C.  Employers completing the form on a computer will be able to select Form FS-240 from the drop-down menus and E-verify users will be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.  All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C.  Finally, all List C documents have been renumbered, except for the Social Security card.
All changes are included in a revised Handbook for Employers:  Guidance for Completing Form I-9 (M-274).  While employers have the option to continue to use the previous Form I-9 through September 17th, it is advisable to start using the updated version as soon as possible to help ensure that all hiring managers and human resource representatives are in compliance by the deadline.

NYC’s FCA Final Rules & Regulations

New York City’s Fair Chance Act: Final Rules and Regulations issued

Although the New York City Fair Chance Act (FCA) became effective in October, 2015, the City has just published the Final Rules and Regulations.

If you are a NYC employer, please read the article below for more information.