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Employment law is the comprehensive legal framework that regulates the employment relationship, including how employers hire, manage, compensate, discipline, and terminate workers. It consists of federal and state statutes, regulations, and court decisions that establish standards for wages and hours, workplace safety, discrimination, employee benefits, family and medical leave, immigration‑related work authorization, and workers’ rights.

According to the U.S. Department of Labor, employment law encompasses major labor standards such as the Fair Labor Standards Act (minimum wage and overtime), OSHA (workplace safety), ERISA (retirement and benefits), FMLA (family and medical leave), and protections for migrant workers . The Legal Information Institute adds that employment law also includes civil rights protections, disability rights, unemployment benefits, and post‑employment benefits .

The New York Clean Slate Act

What is this about?
The New York State Clean Slate Act (the “Act”) will allow certain state criminal records to be sealed from public access once an individual completes their sentence and after a specified period passes without another conviction. This statewide law makes it unlawful for employers to inquire about or use sealed convictions against applicants or employees (unless required by law).

Effective Date:
November 16, 2024

What this means:
Under the Act, individuals who have completed their sentence (including probation and parole time) will have their records automatically sealed, as follows:
• Eligible misdemeanor convictions are to be sealed three years after the completion of the sentence.
• Eligible felony convictions are to be sealed eight years after the completion of the sentence.

What else:
It is still being determined whether sealed records will be removed from public access in New York. Also, delayed implementation may occur for budgetary reasons, meaning that “automatically sealed” records may still be publicly available. If criminal record information is obtained from other sources (such as disclosure by the subject, media, or motor vehicle record) we will continue to verify it with information from the relevant New York court. If no correlating court record is found, we will assume the record was sealed and is, therefore, not reportable.

NYC’s Fair Chance Act & the Two-Step Process:
The Clean Slate Act does not change a New York City employer’s obligation under the city’s Fair Chance Act (FCA), which offers more expansive protections to individuals with criminal backgrounds. Our current procedures for complying with the FCA remain unchanged.

October 15th, 2024|Categories: Compliance Corner for Employment Decisions|Tags: , , |

LA County Fair Chance Ordinance becomes operational September 3, 2024


What is this about?
On February 27, 2024, the County of Los Angeles Board of Supervisors voted to adopt the County’s Fair Chance Ordinance for Employers (FCO). The FCO aligns with the California Fair Chance Act (FCA), also known as “Ban the Box.” However, it adds several compliance requirements when considering the applicant’s criminal record history to make an employment decision.

Effective Date:The FCO is operative on September 3, 2024.

Who must comply:
The FCO applies to any “employer” located or doing business in the unincorporated areas of Los Angeles County who employs five or more employees regardless of location. The FCO protects both applicants seeking employment and employees seeking promotions, as well as others seeking non-traditional employment, such as contract or freelance work.

New requirements:
Notice of Intent to Conduct Background Check.
This notice must be given along with any conditional offer of employment to the applicant or employee that states (1) the conditional offer is contingent upon a review of a criminal record history and (2) the employer has good cause to conduct the criminal history review “for the specific job position with supporting justification in writing.” It is not enough for the employer to merely state it reviews such information because of a generalized “safety concern.” Specific information is required.

Before employers can take any adverse action against an individual, such as rescinding a conditional job offer, the FCO requires the employer to (1) prepare a written individualized assessment of an applicant’s criminal history in the manner required by the FCO; (2) provide a form of preliminary notice of adverse action with mandatory content; (3) provide a second written individualized assessment if the individual provides information in response to the preliminary notice of adverse action; and (4) provide a final notice of adverse action if the employer makes a final decision to withdraw the conditional offer of employment or take any other adverse action (the final notice must also include mandatory content).

Why compliance matters:
The FCO authorizes public and private remedies, including civil claims. The County of Los Angeles Department of Consumer and Business Affairs (DCBA) is authorized to take appropriate steps to enforce the FCO and conduct investigations of possible violations by an employer. The DCBA may issue monetary penalties of up to $5,000 for the first violation, up to $10,000 for the second violation, and up to $20,000 for the third and subsequent violations.

How SI can help:
SI can help ensure compliance in several ways, including the timing of background checks, the distribution of mandatory and sample notices, and the monitoring of the required time periods for taking adverse action.

August 29th, 2024|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Reporting Criminal Convictions, the FCRA, and State Laws

Under the Fair Credit Reporting Act (FCRA), criminal convictions can appear in a background report regardless of when they occurred. It does not matter how old the conviction is. However, some states have passed their own legislation similar to the FCRA that does place restrictions on reporting criminal convictions.

Which states restrict reporting on convictions?

California, Colorado, Hawaii, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, Texas, and Washington all have laws that limit the scope of reporting criminal convictions to seven years. In Hawaii, the seven-year limit is for felonies only; the reporting of misdemeanors is limited to five years. The District of Columbia limits the reporting of criminal convictions to 10 years.

All states not listed above follow the FCRA rule that criminal convictions can appear in a background report regardless of when they occurred.

The Salary Exception States

Seven of the states listed above allow an exception to their rule of limiting reporting criminal convictions to seven years. The exception is based on the salary the candidate is expected to make. If the salary exceeds a certain threshold, the seven-year limitation does not apply, and criminal convictions can appear in the candidate’s background report regardless of when they occurred.

Salary Exception States Candidate’s Potential Salary Threshold
Colorado $75,000
Kansas $20,000
Maryland $20,000
New Hampshire $20,000
New York $25,000
Texas $75,000
Washington $20,000
August 15th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

District of Columbia: Limitations on Reporting Negative Information in Background Checks Used for Employment Purposes

Although several states have laws analogous to the federal Fair Credit Reporting Act (FCRA), the District of Columbia does not. As a rule, the District of Columbia follows the federal FCRA regarding the limitations on reporting negative information in background check reports used for employment purposes. However, there are three notable exceptions where district law differs from the FCRA regarding reporting criminal records:

(1)        Records of arrests or criminal accusations that did not result in a conviction cannot be reported (unless the charges are pending);

(2)        Inquiries about criminal convictions cannot be made unless a conditional offer of employment is made; and

(3)        Convictions with a completed sentence that is more than 10 years old cannot be reported.

The first two exceptions are found in the district’s Fair Criminal Record Screening Amendment Act of 2014 codified at Sections 32-1341 – 32-1346 of the Code of District of Columbia, and the third exception is found in Section 2–1402.66 of the district’s Human Rights Law.

April 25th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Are independent contractors considered employees under the FCRA?

Unfortunately, there is no clear answer.

The Federal Trade Commission (FTC) in its most recent staff report (in 2011) states that “employment purpose” is interpreted broadly and may apply to situations where individuals are not technically employees. Reports on consumers who are clearly not employees under traditional common law principles can nevertheless be construed as consumer reports for employment purposes.

It is up to the employer to determine the purpose of the background check based on its particular facts and circumstances. Some points to consider include:

1) Is the individual free from control and direction in connection with the performance of the service?

2) Is the service performed outside of the usual course of business of the employer?

3) Is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed?

If the answer is “yes,” then most likely a report on the individual would not be under the FCRA’s employment purpose.

While a few recent district court decisions have held that the FCRA employment purpose does not apply to contractors, the FTC has not budged on its stance that employees and nontraditional workers alike are protected under the FCRA.

Where there are gray areas, the conservative approach is to follow the employment purpose requirements but modify disclosure and authorization forms and other documents to reflect an independent contractor status.

April 13th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

New York Civil Cases and the RJI

State courts often have some quirky procedures, and the New York Supreme Court is no exception. Civil records from the New York Supreme Court typically include a reference to an “RJI” and whether it has been filed. What does “RJI” mean?

Definition: RJI is an abbreviation for “Request for Judicial Intervention.” It’s a form that is filed by either a plaintiff or defendant sometime after the summons and complaint is served on the defendant in a civil case.

Filing Effect: When an RJI is filed, the civil case is assigned to a judge.

What does this mean? When a plaintiff files a complaint in the New York Supreme Court to start a civil case, the court’s only action is to assign the case an index number. The court will not take any other action regarding the case – such as deciding a motion or order to show cause or hold a conference or trial – until either the plaintiff or defendant files an RJI. When the RJI is filed, the case is assigned randomly to a judge who will decide everything in the case until it is over.

How long will a case stay in the pre-RJI status? Because New York law does not specify a time limit for pre-RJI status, a civil case could be pending for years without any activity showing on the publicly available docket other than the filing and service of the summons and complaint.

That is the quirk in the New York Supreme Court civil case procedures – the possibility of a lengthy period of no case activity during the pre-RJI status.

To ensure that a civil case is timely prosecuted, many state courts assign a judge to a civil case when the summons and complaint are filed.

March 21st, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

How to consider sex offender registry records in California (Updated)

For California employers concerned about hiring sex offenders, there are a few important points to keep in mind.

An employer has a duty to keep the workplace free of sexual harassment and other forms of discrimination under state law. Under the California Fair Employment and Housing Act (FEHA), an employer can face significant liability if it knowingly employs a sex offender and fails to take actions to protect its other employees from unlawful behavior by that person.

To avoid this problem, employers would like to know if they are hiring a registered sex offender. But how can they find out?

Since 2005, the state has operated a Megan’s Law website with a database to obtain access to the state’s list of more than 100,000 registered sex offenders. Created to help state residents better protect their families by being able to search for an individual registrant or by geographic location, the site (https://www.meganslaw.ca.gov/Default.aspx) contains the sex offender’s name, aliases, age, gender, race, address, physical description and, in some cases, a photograph.

While the site would appear to be a boon for employers, state law expressly forbids use of the state’s sex offender registry information for employment purposes. California Penal Code section 209.46(l)(2)(E) prohibits the use of information disclosed on the website for purposes relating to health insurance, insurance, loans, credit, education, housing and employment, among other uses.

Statutory exceptions provide for use “to protect a person at risk,” a term not defined by the Penal Code, as well as for employers required by law or authorized to request criminal history from the California Department of Justice. Examples of businesses that meet this standard may include child care centers, financial institutions and governmental agencies.

An employer who runs afoul of the Penal Code’s prohibition can face actual and exemplary damages, attorneys’ fees and a civil fine. Legislative history explains that the website attempts to protect the public while not inflicting additional punishment on registrants.

For employers trying to walk the fine line of protecting other employees and third parties, such as customers, from potential sex offender registrant employees while not violating the Penal Code, two alternate avenues exist to try to find out information about a sex offender: conviction records and employee/applicant self-disclosure.

Following applicable state and federal law, employers can conduct a criminal background check on applicants and employees and learn of a sex offense conviction. (However, convictions past the seven-year cut-off date in California may not appear on a background check report while the individual may still appear in the sex offender registry). An applicant or employee may also self-disclose a conviction.

Providing another wrinkle for California employers, the state’s Fair Chance Act took effect on January 1, 2018, mandating that employers with five or more employees must wait until after a conditional offer of employment has been made to ask any questions about criminal history. This includes inquiries about convictions, running a background check or other efforts to find out about an applicant’s criminal past.

If the employer decides not to hire the applicant, it must conduct an individualized assessment of the conviction at issue to evaluate whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Other legal requirements, based on both state and federal law, must also be satisfied if an employer takes an adverse action on the basis of the background check (see our prior blog post (https://www.scherzer.com/reminder-to-california-employers-about-requirements-when-taking-adverse-action-based-on-a-criminal-record/) for more details).

What if an employer learns that an employee is a registered sex offender from another employee’s perusal of the Megan’s Law website? This situation could trigger liability under section 290.46 and employers should be careful to take action only after evaluating any potential risk the sex offender employee may pose to coworkers or customers, considering all the facts and circumstances.

March 17th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Consent for International Searches

A basic principle of conducting international searches on an individual is that you need a lawful basis for processing personal data. This principle applies to both employment-purpose and commercial background checks.

Although the number and type of lawful bases vary from one country to another (especially with the enactment of new data protection and privacy laws in many countries over the last several years), a lawful basis for processing personal data common to all international searches is the consent of the individual search subject. From a compliance perspective, obtaining an individual’s consent for the searches is the best practice.

Other than the requirements that the subject’s express consent be unambiguous and freely given, there is no universally prescribed format or wording for an international consent form.

If the subject’s consent cannot be obtained, you can look to a country’s data protection and privacy laws to determine if a different legal basis may be applicable for processing personal data that does not require the subject’s consent. It is always up to the controller of the data to determine the appropriate legal basis for processing personal data.

For individuals located in the EU or UK, there are several legal bases that will satisfy the compliance requirements under the EU GDPR, the UK GDPR and the Data Protection Act of 2018 (UK) if consent cannot be obtained. The controller can still request these searches if it has a legitimate interest in obtaining the individual’s personal data or needs the data to perform a contract.

If the request for the searches is based on a legitimate interest or performance of a contract, the individual must receive a notice of the controller’s intention to process the data. Notice can be given in several different ways, including directly to the individual, in an engagement letter or similar document, or by publication on the client’s website. The way the controller gives notice is their decision.

February 25th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Reporting Employment-related Civil Lawsuits

For employment-purpose reports, the federal Fair Credit Reporting Act (FCRA) and its state law counterparts  are the laws that most often deal with when determining whether certain information is or isn’t reportable. However, federal laws prohibiting workplace discrimination can also limit what information can be included in these reports. This issue can arise when civil lawsuits are located in which a search subject has sued a former employer.

Although there are several types of federal laws dealing with workplace discrimination, taken together, these laws make it illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because they complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Providing any such information to a prospective employer in a background screening report could be a violation of anti-discrimination laws which are typically enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

February 17th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

REMINDER TO NYC EMPLOYERS: NEW REQUIREMENTS UNDER FAIR CHANCE ACT GO INTO EFFECT JULY 28, 2021

On January 10, 2021, the New York City Council passed an amendment (Local Law 4) to the city’s Fair Chance Act (FCA) which significantly expands protections for job applicants and employees. The amendment goes into effect July 28, 2021. Below are highlights of Local Law 4:

  • Expands scope of “criminal history” to include pending arrests and other criminal accusations.
    The FCA process must be used to determine if a pending arrest or other “criminal accusation” may be the basis to rescind a conditional job offer. Such rescission may only occur if, after considering the relevant fair chance factors “the employer determines that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”
  • Adds new factors to the individual assessment for pending arrests or criminal charges, or convictions that occur during employment.
    Employers will have to consider the following factors, in lieu of the Article 23-A analysis:
  • The New York City policy “to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
  • the specific duties and responsibilities “necessarily related” to the job;
  • the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant’s or employee’s fitness or ability to perform one or more such duties or responsibilities;
  • whether the employee or applicant was 25 years of age or younger at the time the criminal offense(s) for which the person was convicted occurred, or that are alleged in the case of pending arrests or criminal accusations;
  • the seriousness of such offense(s);
  • the employer’s “legitimate interest” in “protecting property, and the safety and welfare of specific individuals or the general public”; and
  • any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.
  • Prohibits inquiries about specified criminal matters.
    At no time may an employer take an adverse action against an applicant or employee based on that person’s (i) violations; (ii) non-criminal offenses; (iii) non-pending arrests or criminal accusations; (iv) adjournments in contemplation of dismissal; (v) youthful offender adjudications; or (vi) sealed offenses, if disclosure of such matters would violate the New York State Human Rights Law.
  • Requires employers to solicit from the candidate information related to the FCA process.
    Currently, the FCA requires employers to only solicit evidence of rehabilitation and good conduct.
  • Expands the time for candidates to respond to the employer’s written assessment from three to five days.
  • Codifies guidance from the New York City Commission on Human Rights on revoking a conditional offer of employment.
    Employers may only revoke the conditional offer based on (i) the findings of a criminal background check following an individual assessment conducted pursuant to the FCA process, (ii) the results of a medical examination, consistent with the Americans with Disabilities Act; or (iii) other information obtained by the employer after making the conditional offer, if the employer could not be reasonably expected to have that information prior to making the offer and the employer would not have made the offer if it had possessed such information.
  • Requires production of evidence to the applicant or employee where the employer takes adverse action pursuant to an alleged misrepresentation by the applicant or employee.
    Und3r the existing FCA, an employer may take adverse action against candidates who intentionally misrepresent information to the employer. The Law will continue to allow an employer to take such action, but will require the employer to provide to the candidate the documents or other materials that support the employer’s claim of misrepresentation and permit the individual a “reasonable” amount of time to respond prior to taking the adverse action.
June 10th, 2021|Categories: Compliance Corner for Employment Decisions|Tags: , |
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