“Not to be outdone by San Francisco or New York City, the City of Los Angeles has enacted the strictest ‘ban the box’ ordinance in the country, and its many requirements are detailed and onerous….Notably, the employer need not be located within the city” to be covered, provided it has “10 or more employees who perform an average of at least two hours of work each week in the City of Los Angeles.” Employers cannot ask about criminal convictions before offering jobs, and can do so afterward only by using a multi-step process — providing a rationale in writing, holding a job open for at least five days while the applicant responds, then writing another document of justification — designed to facilitate successful litigation over the withdrawal of an offer. [Karen Dinino, Christine Samsel, and Sherli Shamtoub/Brownstein Hyatt Farber Schreck]
- In the mail: “No Child Left Alone: Getting the Government Out of Parenting,” forthcoming book by Abby Wisse Schachter [more: Pittsburgh Tribune Eric Heyl interview]
- Neighbor reports Winnipeg mom to child services for letting kids play in fenced-in back yard [Canadian Press/National Post via Amy Alkon]
- “Public space in Germany is not held hostage by liability lawsuits; Berlin playgrounds are not designed by lawyers.” And they’re awesome [Anna Winger, New York Times]
- Controversy intensifies further on Scotland’s Named Person scheme [Scottish Mail on Sunday (“complete stranger” will be assigned as Named Person to each child over school holidays), Gerald Warner/CapX, earlier here and here]
- Omar Mateen’s road to becoming a security guard: “He had issues. All the records were discarded by the school system, per statute. Clearly, if his employer had access to his juvenile record, he would be the last person to own a weapon.” [Yahoo]
- Kansas Supreme Court orders state legislature to increase funding for poor districts [ABA Journal, earlier here, here, etc.]
- Left-right cooperation on school reform begins to break down amid demands to toe social justice line [Robert Pondiscio]
“‘Ban the box’ forbids public and often private employers from inquiring about an applicant’s criminal history until late in the hiring process. Such policies have been adopted in cities and states across the country.” But two new working papers now “suggest that, as economic theory predicts, ‘ban the box’ policies increase racial disparities in employment outcomes” and specifically harm young minority applicants with clean criminal records. “We should repeal ‘ban the box’ and focus on better alternatives.” [Jennifer Doleac, Brookings Institution/Real Clear Markets]
- Obama pay reporting rules: “Forget for a moment that the whole purpose [is] to provide litigation attorneys a database they can mine to legally harass businesses. The reporting requirements here are incredibly onerous.” [Coyote, earlier here and here]
- This seems so French: “Man Sues Former Employers for Boring Him” [Atlas Obscura, Paris; but compare 1994 Canadian story of attorney Paul Ebbs]
- Second Circuit: managers, supervisors can be individually liable for Family and Medical Leave Act violations [Daniel Schwartz, Jon Hyman] Can one of those managers dismiss an employee who’s exhausted the allotted FMLA leave and not come back? Given the presence of the ADA in the background, you might have to guess [Schwartz]
- Invincible myths of the pay gap [Robin Shea, Hans Bader/CEI, Claudia Goldin 2014 via Marc Andreesen, earlier]
- Yes, a legislature does advance important state interests when it pre-empts local employment regulations [Hans Bader, CEI, on one element of North Carolina HB 2 law, on which earlier]
- Here come “ban the box” bills restricting private, not just public, employer inquiries into criminal records of job applicants [Daniel Schwartz, Connecticut; Aabid Allibhai, On Labor]
HUD to private landlords: from now on, prepare to defend a discrimination suit if you decline to rent to felons. After all, any such rule might have disparate impact on members of protected groups. [NPR] Julia Vitullo-Martin writes: “Amazing, given that government — in the form of public housing — has refused to rent to felons since Clinton administration reforms.”
- Now watch out for the next phase of the “ban the box” effort, which will demand that private employers not be allowed to ask about applicants’ criminal records [Open Society via @georgesoros]
- “We have one restaurant in Seattle, and we probably won’t be expanding there. That’s true of San Francisco and Los Angeles, too.” [Buffalo Wild Wings CEO Sally Smith via David Boaz]
- New York Times reporting vs. nail salons: the video [Reason, earlier] The other Greenhouse effect, in this case Steven: Times “sees the labor beat as having essentially an advocacy mission.” [Adam Ozimek]
- The lawsuits of September: “the EEOC has once again rushed to file a blitz of federal court complaints just under the fiscal year wire” [Matthew Gagnon, Christopher DeGroff, and Gerald Maatman, Jr., Seyfarth Shaw]
- I was a guest on Ray Dunaway’s morning drive time show on WTIC (Hartford) talking about cop fitness tests and the blind barber suit, you can listen here:
- NYC Commission on Human Rights — with an assist from Demos and New Economy Project — runs public ads saying “There’s no evidence that shows a link between credit reports and job performance. That’s why NYC made it illegal to use credit reports in employment decisions.” The “Suburbanist” responds: “We will punish those who depart from our null hypotheses regarding their business. Human rights indeed.”
- What are the biggest legal questions facing employers? “What is work?” and “Who is an employee?” are a start [Jon Hyman]
Commenter Gitarcarver on yesterday’s item about how some in the Charlotte Police Department have talked about designating “public safety zones” where persons who have previously been arrested would be forbidden to go:
The City wants to make these zones based on arrests (not convictions.)
At the same time, an employer cannot ask whether a person has been arrested. Of course, there is now the push for “ban the box” which means an employer cannot ask about a conviction.
The City wants to say it can ban people and arrest people from public property, but those private companies can’t even ask about those convictions (much less arrests) during the initial hiring process.
THAT makes sense.
Automaker BMW in Spartanburg, S.C. began conducting criminal background checks on logistics workers and dismissed about 100 existing employees under guidelines that “excluded from employment all persons with convictions in certain categories of crime” not distinguishing misdemeanor from felony or recent from long-ago convictions. About 80 percent of the dismissed employees were black, and the EEOC sued, saying that because the application of the check program had a disparate impact, BMW was obliged to, but had not, properly validated its policy in detail for “business necessity.” A federal judge declined to dismiss the case and BMW has now agreed to pay $1.6 million and offer jobs to 56 discharged employees as well as up to 90 who had applied but not been hired under the policy. [Judy Greenwald, Business Insurance via Jon Hyman] The EEOC in recent years has led a crackdown on employer use of criminal background checks.
It’s like some weird inversion of the (itself bad) big-city trend toward “ban-the-box” laws restricting private employers’ right to ask about criminal records: Amherst County, Virginia, has passed a law under which the county can revoke the business license of any business that employs a convicted felon, or one convicted of a misdemeanor involving “moral turpitude.” [Eugene Volokh]
The so-called ban-the-box movement, which aims to curtail what it sees as improper discrimination against job applicants with criminal records, claims one of its biggest victories yet at the expense of private employers, with strong support from New York City’s left-leaning City Council. [Ford Harrison]
More: NYU lawprof James Jacobs, author of The Eternal Criminal Record, in a Cato podcast with Cato’s Tim Lynch (more) and guestblogging at Volokh Conspiracy in February first, second, third, fourth, fifth posts.