|What is this about:||The Department of Public Works Bureau of Contract Administration (the “Department”), which bears administrative responsibilities for the Fair Chance Initiative for Hiring (“LAFCIH”) issued its rules and regulations (the “Regs”) to guide covered employers (and city contractors/subcontractors) in meeting compliance requirements. As reported in our previous alert, effective January 22, 2017, the LAFCIH prohibits inquiring about an applicant’s criminal history until a conditional job offer has been extended and imposes significant compliance obligations.|
|Notable amplifications and clarifications:||1) “Applicant” means an individual who submits an application or other documentation for employment to an employer regardless of location.
2) “Employee” means any individual who performs at least two hours of work on average each week within the geographic boundaries of the City for an employer. Average week is determined by the last four complete weeks before the position is advertised.
3) An individual who lives in the City and performs work for an employer from home, including telecommuting, is an employee
4) An individual who works from a home that is outside of the City is not an employee even if he/she works for a Los Angeles-based company unless the individual also works at least two hours on average per week within the geographic boundaries of the City.
5) The LAFCIH applies to employees regardless of an employer’s designation of an employee as an independent contractor and labeling a worker as an independent contractor is not conclusive for the purpose of the LAFCIH.
|Criminal history:||According to the Regs, “a conviction shall include a plea, verdict, or finding of guilt regardless of whether the sentence is imposed by the court. In the State of California, an employer is prohibited from asking about any arrest information, unless it results in a conviction, and otherwise specified.” Note: the definition above cites California Labor Code §432.7(a)(1). The first sentence is correct; however, the second sentence is not, as that statute expressly allows inquiries about pending cases, stating that “nothing [in this section] shall prevent an employer from asking about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.” Nevertheless, the Regs, in a section titled “Employer Assessment of Criminal History,” go on to remind employers that “arrests cannot be considered in employment decisions.”|
|Other guidance items:||The Regs amplify other definitions and aim to explain the various employer requirements, including, but not limited to, the application and interview procedure, assessment of criminal history, the “Fair Chance” process, notice and posting, recordkeeping, enforcement, and exceptions. See below for some links regarding this new guidance:Read the Regs here
Access the notice to applicants/employees regarding the LAFCIH here
The Department’s sample letter to rescind a job offer here.
The Swiss-U.S. Privacy Shield Framework (the “Framework”) made its debut on January 12, 2017 without much fanfare when Swiss federal councillor Johann Schneider-Ammann announced the Framework’s approval as a valid legal mechanism to comply with Swiss requirements for transferring personal data from Switzerland to the United States. The Framework, designed by the U.S. Department of Commerce (the “DOC”) and the Swiss government to align with the EU-U.S. Privacy Shield, will immediately replace the U.S.-Swiss Safe Harbor. The DOC will begin accepting self-certifications starting April 12, 2017 to give organizations ample time to review the new Framework’s principles and compliance requirements. For more of Scherzer International’s coverage of the EU-U.S. Privacy Shield, click here.
The City of Los Angeles passed the “Fair Chance Initiative for Hiring (LAFCIH),” a new “ban-the-box” legislation that goes into effect January 22, 2017, with monetary fines for non-compliance starting July 1, 2017. The LAFCIH applies to most private sector employers that (1) are located in or doing business in the City of Los Angeles; and (2) employ 10 or more people. The law covers both applicants and incumbent employees in virtually any type of employment situation.
The ordinance prohibits covered private employers from inquiring about an applicant’s criminal history until a conditional offer of employment has been extended, and imposes significant compliance obligations, including a requirement that before making an adverse decision based on a criminal record, the employer “performs a written assessment that effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.” At a minimum, the employer must consider factors identified by the Equal Employment Opportunity Commission in its 2012 Enforcement Guidance and any other factors that may be required by rules or guidelines promulgated by the city’s Department of Public Works, Bureau of Contract Administration [Department] which will be administering the LAFCIH.
The employer must then engage in a “fair chance process,” allowing the candidate to provide information or documentation regarding the accuracy of the criminal record or other information that the employer should consider, such as evidence of rehabilitation or other mitigating factors. The proposed position must be held open for at least five business days after the candidate has received the employer’s notification and assessment. If the candidate provides additional information or documentation, the employer is required to consider the new information and perform a written re-assessment.
Additionally, the LAFCIH provides that all covered employers include the following language in any advertisement or solicitation seeking applicants: “The employer will consider for employment qualified applicants with criminal histories in a manner consistent with [the Los Angeles Fair Chance Initiative for Hiring].” There is also a notice posting requirement, which must be in a conspicuous place at every workplace, job site, or other location in the City of Los Angeles under the employer’s control that is visited by applicants. Copies of the notice must be sent to each labor union or representative of workers that has a collective bargaining agreement or other agreement applicable to employees in Los Angeles.
Employers are required to maintain all records and documents related to an individual’s application for employment, including any written assessments and re-assessments for a period of three years after the receipt of the job application.
As with other “ban-the-box” legislation, the LAFCIH makes it unlawful for an employer to retaliate or otherwise take adverse action against an individual who has complained about the employer’s non-compliance or anticipated non-compliance; opposed any practice made unlawful by the ordinance; participated in any proceedings related to enforcement of the law, or otherwise sought to enforce or assert his/her rights under the LAFCIH.
The LAFCIH does not apply in the following circumstances: (1) when the employer is required by law to obtain information regarding an applicant’s criminal convictions; (2) when the applicant will be required to possess or use a firearm in the course of his/her employment; (3) when the applicant is prohibited by law from holding the position sought due to a conviction, regardless of whether the conviction has been expunged, sealed, eradicated, or dismissed; or (4) when the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
With this new ordinance, Los Angeles joins the fast-growing list of localities (Austin, Baltimore, Buffalo, Chicago, Columbia (MO), the District of Columbia, Montgomery County (MD), New York City, Philadelphia, Portland, Prince George’s County (MD), Rochester, San Francisco, and Seattle) and nine states (Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont) that have enacted similar laws for private employers.
Companies covered by the LAFCIH should immediately review and revise, if applicable, their applications, offer letters, background check forms, and notices, and ensure that their employment screening policies incorporate the ordinance’s pre-adverse and adverse action procedures and documentation, and record keeping requirements.
Since “ban-the-box” legislation is gaining momentum at a rapid pace, all nationwide employers may want to conduct an assessment of their employment screening practices to ensure their compliance with applicable laws and regulations.
Scherzer International’s participation in Arthritis Foundation’s annual Jingle Bell Run in Los Angeles
UPDATE: Scherzer International is proud to have raised over $5,000 during the Arthritis Foundation’s Jingle Bell Run fundraiser this year! We’d like to express a special thank you to everyone for their donations and helping to spread the word. The event on December 11th was a great success and a good time for all who participated.
Scherzer International is excited to once again participate in the Arthritis Foundation’s annual Jingle Bell Run in Los Angeles! As many of us know too well, arthritis steals everyday joys and long-term dreams. It is painful and often devastating to nearly 53 million U.S. sufferers, their families, their employers, and the economy. It does not discriminate by age, gender, race, nationality, or socio-economic status.
The Arthritis Foundation exists to conquer arthritis (an umbrella term covering over 120 different forms including osteoarthritis, rheumatoid arthritis, lupus, fibromyalgia, ankylosing spondylitis, juvenile arthritis, and several others) by funding research for better treatment options and a cure; advocating for patient access to optimal care; serving as the go-to resource for patient information and education; and empowering 300,000 families and their children who suffer with juvenile arthritis.
That’s why we have committed to help in combatting arthritis head-on. We invite you to join us and over 1,500 people in supporting the 2016 Los Angeles Jingle Bell Run/Walk on Sunday, December 11, 2016.
This festive, holiday-themed (complete with jingle-bells shoe laces and other cool adornments), family-friendly race offers a timed 5K run/walk experience that takes participants through the streets of beautiful downtown Glendale. We ask that you please help in one or more ways:
- sponsor the event – various levels are available with great marketing benefits for your company;
- form a Jingle Bells Run/Walk team with your business, family or friends
- Visit our team page at
For more information, please call the Arthritis Foundation office at (323) 954-5750, or e-mail firstname.lastname@example.org. Carlie Wilhite, development manager, will be happy to help you.
Your generous support is greatly appreciated. We look forward to seeing you with bells on!
Disclaimer: This communication is for general informational purposes only, and does not constitute legal advice. No recipient should act, or refrain from acting, on the basis of any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.
For further information, please contact us at 1-866-723-2287.
U.S. Secretary of Commerce Penny Pritzker released a statement regarding the historic agreement, noting that the “EU-US Privacy Shield is a tremendous victory for privacy, individuals, and businesses on both sides of the Atlantic.”
The EU-US Privacy Shield Framework (the “Framework”) was designed by the U.S. Department of Commerce (the “DOC”) and European Commission to provide companies on both sides of the Atlantic with a mechanism to comply with EU data protection requirements when transferring personal data from the European Union to the United States in support of transatlantic commerce.
The Framework provides robust and enforceable protections for the personal data of EU individuals, mandating transparency for participating companies, strong U.S. government oversight, and increased cooperation with EU data protection authorities. Offering EU individuals access to multiple avenues to address concerns regarding participants’ compliance and a free dispute resolution, the Framework makes it easier for EU individuals to understand and exercise their rights.
The European Commission proposed that the Framework be deemed adequate to enable data transfers under EU law, which is now in the approval process. Once an adequacy determination is made, the DOC will begin accepting certifications under the Framework. Similar to the certification process of the now invalid Safe Harbor, if a U.S. based-company wishes to join the Framework, it will be required to self-certify to the DOC and publicly commit to comply with the Framework’s requirements. While joining the Framework will be voluntary, once an eligible company certifies compliance, the commitment will become enforceable under U.S. law.
Read the fact-sheet about the EU-US Privacy Shield Framework here.
Read the full text of the EU-US Privacy Shield Framework here.
Fortune reported that Hamburg, Germany’s data protection commissioner, Johannes Caspar, is taking five unspecified global companies to task for continuing to transfer EU data to the US after the Safe Harbor ruling made it illegal, The Hamburg data protection authority is preparing to fine three companies for relying on the Safe Harbor privacy framework as the legal basis for their trans-Atlantic data transfers, the report states. “Two other firms are also under investigation” according to the report. Caspar refused to disclose the names of the companies for legal reasons, but said they are “large international companies” and “subsidiaries of US-based global corporates.”
On February 24, 2016, President Obama signed the Judicial Redress Act of 2015 (“the Act”) into law, a major step toward formalizing the recently announced privacy framework, the EU-U.S. Privacy Shield, which will replace the Safe Harbor program that was declared invalid by the European Court of Justice in October 2015. The Act’s intent, as explained by House Judiciary Committee Chairman Bob Goodlatte (R-VA), is to reestablish the United States’ credibility with the European Union following the highly-publicized leaks of classified information in the recent years.
The Act extends to the citizens of EU countries that permit commercial transfers of personal data [to the United States] similar rights to those enjoyed by US citizens under the Privacy Act of 1974, which established a code of fair information practices that govern the federal government’s collection, maintenance, use, and dissemination of information about individuals. The citizens of these EU countries will now be allowed to sue the United States for unlawful disclosure of their personal information obtained in connection with international law enforcement efforts. Under current law, only US citizens and legal residents can bring such claims against the federal government.
Read the text of the Act here.
Announced on February 2, 2016 by the European Commission, the new political agreement called the Privacy Shield, reflects the requirements set out by the European Court of Justice in its ruling on October 6, 2015, which declared the old Safe Harbor privacy framework invalid.
The new arrangement calls for strong data privacy and security measures and robust enforcement of U.S. companies handling Europeans’ personal data, clear safeguards and transparency for U.S. government access, and effective protection of EU citizens’ rights with several redress possibilities.
The College of Commissioners is now preparing an adequacy decision regarding the Privacy Shield–the Article 29 Working Party (the “Working Party”), a data protection authority, is requesting that all documents be provided by the end of February 2016 so that it can complete its assessment of the new framework at a special plenary meeting shortly thereafter. In a statement issued February 3, 2016, the Working Party provided some assurances that during this period of transition, transfer mechanisms, such as standard contractual clauses (which are data transfer agreements approved by the Commission) and binding corporate rules (generally described as internal data processing rules binding on all members of a global corporate group) to permit intragroup transfers of personal data) can still be used as transfer tools to the U.S.
Organizations that certified compliance under the Safe Harbor regime must continue to meet their obligations in connection with previously transferred personal data to avoid enforcement actions by the Commerce Department or the Federal Trade Commission, which consider the Safe Harbor as still binding. In the interim, implementing the above-mentioned clauses should also be considered to the extent they supplement the Safe Harbor platform. It appears that the Privacy Shield, at least initially, will rely significantly on the Safe Harbor framework, and it is likely that the Department of Commerce will offer a means for Safe Harbor certified organizations to transition to the Privacy Shield.
- Read Scherzer International’s first bulletin about the invalidation of the Safe Harbor privacy framework
- Read the European Commission’s guidance about data transfers issued in November 2015
- Read the European Commission’s press release about the Privacy Shield
- Read the Working Party’s statement issued on February 3, 2016 about the Privacy Shield
- Read the U.S. Department of Commerce fact-sheet about the Privacy Shield
Every year, the Consumer Financial Protection Bureau (the “CFPB”) updates and publishes a guide to consumer reporting companies, The guide includes information in connection with requesting a consumer report from the three largest nationwide consumer reporting companies and dozens of specialty reporting companies, tips regarding specialty reports, updated information about authentication of identity when requesting a consumer report, information on companies that provide free credit scores, and rights with respect to consumer reports.
The CFPB notes that in prior years, its guide referred to consumer reporting businesses as “agencies” or “bureaus,” and that these terms can be confusing because they may imply these businesses are government entities. They are not—these companies are private-sector, for-profit entities, and in this year’s guide, the CFPB refers to them as “companies” for better clarity.
- Read the CFPB’s new guide about consumer reporting agencies