Recently, the North Carolina General Assembly enacted “An Act to Amend the Law Regarding a Certificate of Relief For Criminal Convictions” (the “Act”). The Act will become effective on December 1, 2018, and applies to petitions for relief filed on or after that date. Legislators contemplated the Act would assist individuals convicted of certain crimes during their reintegration into society—particularly with regard to employment options. Essentially, when an individual obtains a certificate of relief, which is a court order, many collateral consequences associated with criminal convictions will be eliminated. In addition, the Act provides a defense for employers who may be concerned about negligent hiring/retention claims. In a lawsuit or administrative proceeding alleging negligence (such as negligent hiring or retention claims), a certificate of relief will bar any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise doing business with or engaging in activity with an individual whom a certificate of relief was issued. The key to this defense, however, is that the employer must show that it relied on the certificate of relief at the time of the alleged negligent act. If the employer did not know about the certificate of relief at the time of the alleged negligent act, this defense will not be helpful.
California Will Dramatically Change Management of State Sex Offender Registry System in 2021
In October 2017, California Governor Jerry Brown signed Senate Bill 384 (SB 384) – also known as the “Sex Offender Registration Act” – which will dramatically change how the state manages the California Sex Offender Registry when the law eventually takes effect on January 1, 2021. Existing California law requires persons convicted of specified sex offenses to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Willful failure to register is a misdemeanor or a felony, depending on the underlying offense. Starting on January 1, 2021, SB 384 will instead create of a new three-tiered system of sex offender registration, and California will organize registered offenders into three tiers based on their offense and risk of re-offending instead of treating all registerable sex offenses the same.
From Discrimination to Invasions of Privacy: The Dangers of Social Media Background Checks
State laws do not bar employers from using social media for any form of background check, but they do make it more difficult. Left to their own devices, employers must use social network search functions to find their candidates on LinkedIn (usually pretty easy), Facebook (more difficult), and Twitter (next to impossible).
This added challenge brings to light issues with the consistency and verifiability of social media background checks. Employers can rarely be sure if they’ve found the correct social media profile for a candidate. Since many candidates are difficult to find on social media — whether because they don’t have active accounts or have activated robust privacy settings — there is no consistency to the social media background check process.
Someone who is very active on Facebook could have a disadvantage compared to a candidate who doesn’t have a profile. With any background check, consistency in procedures from one applicant to the next is paramount. That consistency cannot be achieved with social media background checks.
Employers and job seekers alike should be aware of the rocky implications of social media background checks. More traditional background checks — from criminal history searches to educational verifications to reference checks — are considerably more effective and less legally or ethically treacherous. Even though more and more employers are using social media to vet their candidates, there are countless reasons that the practice is time-consuming at best and extremely risky at worst.
Be Careful What You Ask For: Asking a Job Applicant About Previous Pay May Violate the Equal Pay Act
Until recently, employers have been able to use an employee’s previous pay as a justification for different wages between employees of different sexes because it fell within the “any factor other than sex” exception to the EPA. In Rizo, the Fresno County Office of Education used a female employee’s prior pay to explain why it paid her less than men who performed equal work. The Ninth Circuit held that using prior pay to justify unequal wages perpetuated the very wage gap the EPA was designed to cure. Rizo makes it clear employers can no longer use previous pay to justify unequal wages under the “any factor other than sex” exception to the EPA. While Rizo is only binding in the Ninth Circuit (essentially the West Coast), employers in every state should be careful about asking job applicants about their previous pay and, in general, refrain from asking such questions.
As ban-the-box turns 20, compliance challenges grow
On July 15, 1998, Hawaii became the first state to adopt a fair-chance law applicable to both private and public employers. The law bars employers from inquiring into, or considering, the criminal record of a prospective employee until after a conditional offer of employment has been made.
Since then, 30 other states — and more than 150 cities and counties — have adopted some form of “ban-the-box” legislation or fair-chance law designed to give applicants a shot at getting hired without the stigma of a conviction or arrest record, according to the National Employment Law Project (NELP).
Particularly for multi-state employers, the patchwork of disparate laws can be daunting from a compliance standpoint. So how are they coping? HR Dive spoke with three experienced employment law attorneys to get their insights.
