Monday, December 8, 2014

We Don’t Hire Convicted Felons!


Scanning media for great examples of what to do or what not to do, a great blog came across my desk the other day and frankly it was worth a read and then a second read.  One of my clients proudly stated at a meeting where I was hired as their keynote speaker, “We don’t hire convicted felons.”  Hum…well here’s a link to the original blog – “Does Your Hiring Policy Exclude Ex-Con’s?  Watch Out!”  Perhaps you, too, will be interested in this eye opening blog post!
Convicted FelonWhat caught my attention is the content related to new EEOC guidelines regarding the use of criminal background data in employment decisions.  This material is important and worth the time to read.  It is reprinted in it’s entirety below.
This is a guest post by Joseph H. Harris, Partner, White Harris PLLC.
The United States Equal Employment Opportunity Commission (EEOC) has issued a new set of guidelines concerning the use of criminal background information in employment decisions. The guidelines should serve as a reminder to employers, and their attorneys, that they cannot automatically exclude from consideration all job applicants with criminal records. That includes applicants with felony convictions.
To be clear, the EEOC does not require employers to ignore criminal background information. However, it does restrict the manner in which employers may use that information to exclude an individual from employment. Employers who fail to abide by the EEOC’s new guidelines could find themselves charged with disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964, even if the policy is applied uniformly to all applicants regardless of their race, age, gender, or other legally protected characteristic. One company recently settled a case with the EEOC for $31 million for its policy which automatically excluded anyone with a criminal record from employment. In addition, in its recently released Draft Strategic Enforcement Plan, the EEOC listed recruiting and hiring discrimination as its top priority.
  • Arrests. A prior arrest cannot, in and of itself, serve as the basis for excluding an individual from employment. Under the law, we are presumed innocent until proven guilty. However, employers may consider the underlying facts of the arrest. If those underlying facts bear directly on the job in question, then excluding the individual would be permissible.
  • Convictions. Employers may not maintain blanket policies making a prior conviction, even for a felony, the basis for automatically denying employment. Employers may, however, adopt narrowly tailored policies stating that certain specific jobs cannot be held by individuals with criminal convictions for particular offenses. For such a policy to be in keeping with the EEOC’s guidelines, it must be job-related and consistent with business necessity. In other words, there must be a link between the “specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” To meet that standard, employers have two options. They can use empirical data to establish that link (an expensive and time consuming task). Or, they can establish a targeted screen by considering the following three factors: the nature and gravity of the crime that would serve as the basis for exclusion, the amount of time that has passed since the crime was committed or the sentence completed, and the nature of the job at issue. In addition, employers are strongly encouraged to engage in an individualized assessment to determine whether the exclusionary policy should apply. As part of that assessment, the employer should notify the individual that he or she has been excluded because of a criminal conviction and give the individual an opportunity to demonstrate why the exclusionary policy should not apply due to the particular facts and circumstances of the case. The employer should then consider whether the information provided by the excluded person warrants an exception to the policy.
The EEOC has provided the following list of factors that employers should consider to ensure that their exclusionary policy and screening process is consistent with the new guidelines. “The facts or circumstances surrounding the offense or conduct; [t]he number of offenses for which the individual was convicted; [o]lder age at the time of conviction, or release from prison; [e]vidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; [t]he length and consistency of employment history before and after the offense or conduct; [r]ehabilitation efforts, e.g., education/training; [e]mployment or character references and any other information regarding fitness for the particular position; and [w]hether the individual is bonded under a federal, state, or local bonding program.”
A word of caution for employers: It is the EEOC’s position that Title VII preempts state laws that require the automatic exclusion from employment of individuals convicted of certain offenses. This puts employers in a difficult position and may present them with an impossible choice: Abide by state law and exclude an applicant with a criminal record, but face the possibility of EEOC charge for violating federal anti-discrimination laws, or follow the EEOC’s guidelines, hire the individual because the targeted screen and individualized assessment does not warrant an automatic exclusion, and face liability for violating state laws.
About the author: White Harris PLLC practices exclusively in the area of labor and employment law, representing management. The firm counsels businesses on how to comply with local, state, and federal employment laws and represents them in court, before government agencies, and in alternative forums such as arbitration and mediation. For more information, visit http://whiteharrislaw.com.
Mr. Harris is an alumnus of Oxford University and a graduate of Haverford College and the Benjamin N. Cardozo School of Law. He is admitted to practice in the state of New York and in the federal courts in the Southern and Eastern districts of New York. He is a member of the Labor and Employment Law Section of the New York State Bar Association and the Labor and Employment Law Committee of the New York City Bar Association.
WOW…at some level this is a game changer!  As a convicted felon, I understand the challenges that many face with seeking employment.  I have, in fact, been denied more than one job because of my criminal background (guilty of embezzlement and tax evasion for a crime in 1986/87).
Today I work with multinational companies primarily in ethics and fraud prevention, but it would appear that another prospective challenge might be how firms deal with this EEOC change.
YOUR COMMENTS ARE WELCOME!

Obama’s EEOC: We’ll Sue You If You Don’t Hire Convicted Felons

Obama’s EEOC: We’ll Sue You If You Don’t Hire Criminals Friday, 15 Feb 2013 10:52 AM By Jim Meyers The Obama administration’s Equal Employment Opportunity Commission says it should be a federal crime to refuse to hire ex-convicts — and threatens to sue businesses that don’t employ criminals. In April the EEOC unveiled its “Enforcement Guidance on the Consideration of Arrest and Conviction Records,” which declares that “criminal record exclusions have a disparate impact based on race and national origin.” The impetus for this “guidance” is that black men are nearly seven times more likely than white men to serve time in prison, and therefore refusals to hire convicts disproportionally impact blacks, according to a Wall Street Journal opinion piece by James Bovard, a libertarian author and lecturer whose books include “Freedom in Chains: The Rise of the State and the Demise of the Citizen.” Most businesses perform background checks on potential employees, but the EEOC frowns on these checks and “creates legal tripwires that could spark federal lawsuits,” Bovard observes. An EEOC commissioner who opposed the new policy, Constance Baker, said in April that the new guidelines will scare businesses from conducting background checks. Reason: If a check does disclose a criminal offense, the EEOC expects a firm to do an “individual assessment” that will have to prove that the company has a “business necessity” not to hire the ex-convict. If the firm does not do the intricate assessment, it could be found guilty of “race discrimination” if it hires a law-abiding applicant over one with convictions. Bovard points out that the “biggest bombshell” in the new guidelines is that businesses complying with state or local laws requiring background checks can still be sued by the EEOC. That came to light when the EEOC took action against G4S Secure Solutions, which provides guards for nuclear power plants and other sensitive sites, for refusing to hire a twice-convicted thief as a security guard — even though Pennsylvania state law forbids hiring people with felony convictions as security officers. Bovard quotes Todd McCracken of the National Small Business Association: “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.” Bovard concludes: “Americans can treat ex-offenders humanely without giving them legal advantages over similar individuals without criminal records.” http://www.newsmax.com/Newsfront/eeoc-federal-crime-convicts/2013/02/15/id/490605?s=al&promo_code=12791-1#ixzz2LHq8b2xQ5

Monday, December 1, 2014


Michael Brown’s Mother Could Face Felony Theft Charges: Report  

Leslie McSpadden has been accused by her ex mother-in-law of leading a mob to rob her.  
Posted: 
 
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Lesley McSpadden (center), the mother of slain teenager Michael Brown, arrives for a press conference with the Rev. Al Sharpton (left) Aug. 12, 2014, in St. Louis.  
SCOTT OLSON/GETTY IMAGES
As the nation waits for possible charges to be brought against Darren Wilson, the police officer who killed Michael Brown in Ferguson, Mo., Brown’s mother may be facing charges of her own.
Leslie McSpadden has been accused of leading others to attack and steal money from a group selling “Justice for Mike Brown” merchandise. If charged, McSpadden could face felony armed-robbery charges, reports the New York Daily News.
One of the people included in the group that was attacked was McSpadden’s former mother-in-law, Pearlie Gordon. Gordon claims that she was knocked down by the group that McSpadden led. In total, roughly $2,000 in merchandise and cash was taken by the group.
“You can’t sell this s--t,” Gordon claims McSpadden told her during the altercation.
The Ferguson, Mo., Police Department is currently investigating these claims and will then decide whether to bring charges against McSpadden.
Read more at the New York Daily News.
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Felon's Gun Rights Restored


OMG! 666 GA Felons’ Gun Rights Restored! OMG!

Georgia prison (courtesy voiceofdetroit.net)
“Everyone deserves an opportunity for a second chance,” Gale Buckner told ajc.com. The former Georgia state parole board chairwoman was defending her employer’s decision to restore the gun rights of more than 1400 Peach State felons in recent years, 666 (mark of the beast!) in 2013 alone.ajc.com says 358 of those felons were convicted of violent crimes (including 32 homicides), 166 went down for drug-related crimes and an unspecified number were incarcerated for crimes against children. To qualify for rights restoration, an applicant must maintain a clean record for five years after release and provide three references. Successful applicants’ criminal records are not expunged. As you can imagine, the antis will seize on the info as proof that “guns everywhere” Georgia is a pistol-packing pariah amongst “civilized” gun control states. I say good for them.