eqHR Solutions Business Tips: Be Careful What you ask Applicants about Their Criminal Records

Your company could be hit with big damages for asking illegal questions about an applicant’s criminal record.

Although it is permitted to ask about most convictions, employers can get into trouble under anti-discrimination laws if they have a policy of automatically denying employment to anyone ever convicted of a crime. This policy could have the effect of eliminating applicants from protected groups that in some instances may have statistically higher conviction rates.

Employers must never treat people with similar criminal records differently because of their race, national origin, or another Title VII protected characteristic (which includes color, sex, and religion).

Title VII also prohibits employers from using policies or practices that screen individuals based on criminal history information if:

• They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND

• They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Rather than having a blanket no-hire policy, consider whether a direct relationship exists between the person’s offense and the responsibilities of the job.

The fact that an individual was arrested is not proof that he or she engaged in criminal conduct. 

Therefore, an individual's arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee).

However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

What you can Ask

• Have you ever been convicted of a crime? (Exclude convictions for marijuana-related offenses more than two years old; and convictions that have been sealed, expunged or legally eradicated)

• Briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case.

Note that the company should not deny employment to any applicant solely because the person has been convicted of a crime. The company should always consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

What you can’t Ask

Here are some questions you should avoid:

• Have you ever been arrested?

• What is in your arrest record?

Employers should tread carefully whenever making employment decisions based on criminal background information.

For more guidance on this or other HR topics, call eqHR Solutions today!

This article was written by Laurn Sims, a senior eqHR HR consultant

New Client - A-Z Bus Sales - ADP Product Training

We are pleased to announce a new client, A-Z Bus Sales.  Our services include a one-day, ADP Product Training on the topics of Custom Reporting and Performance Review / Goal Management with optional follow up product training.

A-Z Bus Sales has been a leader in the business for over 20 years, selling all types of buses, providing excellent service and an extensive part department.

A-Z Bus Sales is dedicated to providing the customer with the best possible value and meeting every need.

eqHR Solutions is a preferred, on-site product training vendor for all ADP Products.  Please call us to fulfill your next ADP training requirements. 

eqHR Solutions Business Tips: Do you understand California's Standby or On-Call Work Pay Rules?

A recent California Supreme Court decision could affect how many employers are scheduling and paying for on-call or “standby” time.

Many California employers require their employees to perform standby or on-call work, where they are required to be available to perform work if needed.

Non-exempt employees must be paid for standby time when the time is “controlled” rather than “uncontrolled.” Whether the standby time is controlled depends on the situation.

Controlled Standby Time

Controlled standby means that an employee is required to remain on call on either the employer’s premises, or so close to it that the employee cannot use the time for their own purpose.

For example, an IT employee must remain available for 2 hours every Saturday morning and answer all calls and emails within five minutes of receiving them. Controlled standby time must be added to regular time worked to determine if overtime compensation is due. 

Controlled standby time may be compensated at a different rate than is paid for other work by the same employee, so long as the employee is paid at least minimum wage.

Uncontrolled Standby Time 

Uncontrolled standby generally means that an employee is not required to remain on the employer’s premises, and is merely required to carry a cell phone or pager.

Uncontrolled standby time may be spent for the employee’s own purposes. An employer may require that an employee on uncontrolled standby must remain no further away from the employer’s business than a twenty-minute response time.

Employees on uncontrolled standby time need only be paid for the actual hours they work. For example, for the time they spend taking work related calls, or if they have to be called back in to the office to perform work. They do not need to be paid for any of time they are waiting and able to do other things.

The California Department of Labor Standards (DLSE) considers the following standards to determine if on call time is compensable:

1. Geographical restrictions on the employees' movements;
2. The required response time;
3. The nature of the employment;
4. The extent the employer's policy impacts personal activities during on call time.

Recently, the California Supreme Court ruled that employees who were required to stay at a worksite while on standby should be compensated for all their hours, including sleep time.

In the decision, the state’s highest court determined that security guards, who were obligated to stay in trailers on worksites in case they were needed, were entitled to be paid for all their time, even if they spent it watching TV, scouring the Internet or dozing.

This case could have potential impact for other professions, such as live-in domestic workers, agricultural employees and private contractors who patrol parks, fight fires or clean up after environmental disasters.

We recommend employers should review their policies and procedures on how they are compensating employees who are on standby to ensure they are not at risk for potential lawsuits or settlements for unpaid wages.

Need assistance reviewing your policies on standby workers? Call eqHR solutions today!

This article was written by Lauren Sims, a senior eqHR consultant.

Sexaul Harassment / Bully Prevention - Albert Grover & Associates

We are pleased to announce that Albert Grover & Associates selected eqHR Solutions to provide their state mandated Sexual Harassment / Bully Prevention training (AB1825 & AB2053). Like many companies, they understand the value of live, interactive training for these important topics.

  

Headquartered in Orange County, California, Albert Grover & Associates (AGA) is the recognized leader in meeting the engineering needs of one of the nation’s most challenging transportation venues. They offer a broad range of engineering services to private and public sector clients throughout California and beyond. AGA keeps traffic moving!

Details of our sexual harassment & bully prevention training can be reviewed at: http://www.eqhrsolutions.com/sexual-harassment-bully-training.html. Please call us today for pricing and scheduling.

85c Bakery - ADP Payroll Workforce Now Training

We are pleased to announce 85c Bakery as a new client. Our services include a one-day, ADP Workforce Now training class at the client’s location, with additional training as required.

The ADP WorkForce Now training modules include Performance Management, Training Tracking and Custom Reporting.

85c Bakery first opened in 2004 and now has over 400 stores in the US, China and Australia and Hong Kong.  Its name is based the belief that coffee holds its flavor best at a steady 85 degrees Celsius. http://www.85cafe.us/

eqHR Solutions is a preferred, on-site product training vendor for all ADP Products.  Please call us to fulfill your next ADP training requirements. 

Orange County Chapter of National Alliance on Mental Illness - New Client

We are pleased to announce NAMI – Orange County Chapter of National Alliance on Mental Illness as a new client.  Our initial services will include a live, two-hour (AB1825 & AB2053 compliant) Sexual Harassment and Bully Prevention Training class for their supervising staff and volunteers. Steve Pitman, the chapter president, understands the benefits of providing staff training even if not required by regulation.

The mission of NAMI Orange County is to provide emotional support, education and resources for families, and those affected by mental illness. In collaboration with the entire community, we advocate for a life of quality and dignity, one without discrimination, for all those persons affected by this illness.

NAMI Orange County a volunteer based non-profit organization, is the leading self-help organization in the County for families and friends of those suffering from serious mental disorders. Founded in 1980, NAMI Orange County offers family support groups, advocates for legislation, supports research efforts and works to educate the public to reduce stigma. NAMI Orange County, affiliated with NAMI California and the National Alliance on Mental Illness (NAMI), receives its funding from its membership and from the community and provides services free to the public.

Oakmont Management Group - New HR Client

We are pleased to announce Oakmont Management Group as a new client.  Our services will include an executive search a new human resources executive and a senior HR generalist.  During their HR staffing void, eqHR will provide strategic and tactical human resources support for their property managers and executives. 

Oakmont Management Group owns and operates Oakmont Senior Living, a family owned and nationally recognized leader in the development and construction of high-end senior communities. The Oakmont team has designed and built 34 retirement communities on the West Coast, including continuing care retirement communities and independent living, assisted living, and memory care communities.