By Katy Grimes

A recent decision by the federal Equal Employment Opportunity Commission is about to undo many decades of law, while taking rights away from employers–again.

Using the well-worn “level the playing field” adage, the EEOC just ruled 4-1, that employers cannot use a criminal background check, or a job applicant’s criminal record, when making an employment decision.

Criminals now have more employment protections than law-abiding citizens.

Under the very rule of law they have violated, those with criminal records are now the tail wagging the dog thanks to the federal government.

The EEOC said that while employers may legally consider criminal records in some hiring decisions, maintaining a hiring policy that excludes all applicants with a conviction record is a  violation of employment discrimination laws because it could have a “disparate impact on racial and ethnic minorities, who have higher arrest and conviction rates than whites.”

The EEOC also “recommends” that employers not ask about past convictions on job applications.

In a nutshell, to the EEOC, it is discrimination that ethnic minorities have higher conviction rates than whites, and employers be damned.

Read for EEOC decision for yourself:

“In the last twenty years, there has been a significant increase in the number of Americans who have had contact³ with the criminal justice system⁴ and, concomitantly, a major increase in the number of people with criminal records in the working-age population.⁵ In 1991, only 1.8% of the adult population had served time in prison.⁶After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).⁷ By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.⁸ The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.⁹

Arrest and incarceration rates are particularly high for African American and Hispanic men.¹⁰ African Americans and Hispanics¹¹ are arrested at a rate that is 2 to 3 times their proportion of the general population.¹² Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime;¹³ by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.¹⁴

Employers have few tools left with which to judge job applicants, particularly entry-level or unskilled job seekers. In California, background checks already cannot be used unless there is a job-related reason.

However, any employer seeking to hire a driver, heavy equipment operator, or a manager, needs to know who they are dealing with, and whether the applicant has any legal skeletons hiding in their closets.

An employer seeking to hire a bookkeeper has every legal right to know if that bookkeeper has an embezzlement conviction before making a job offer.

10 years ago when I worked as a Human Resource manager, I discovered that a part-time accounting department employee had been quietly embezzling from the company. She was very clever. She had hacked into the payroll system and hid her theft by increasing her vacation accruals and payouts, and added extra hours onto her paycheck every two weeks. It wasn’t until she got greedy that she got caught because the amounts were small.

My company prosecuted and won a civil judgment against her. The purpose was to hopefully prevent any future employer from hiring her in a position handling money, or with access to financial accounts. And the judgement would prevent her from obtaining a professional license in California.

This was no school girl prank–this young woman knew what she was doing and had very carefully covered her tracks.

With the new EEOC ruling, this woman, who always managed to obtain jobs handling money, or with access to bank accounts, could get another such job.

The EEOC has just given a huge gift to employment lawyers. What a surprise. Even with the EEOC “recommendations,” lawyers can and will file lawsuits against employers anytime someone with a criminal record feels discriminated against during a job interview, whether there is evidence or not.

An employer may fight a charge of discrimination. “During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).”

However, the EEOC also states “An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact.”

But employers must hire legal counsel in order to defend charges of discrimination. And legal fees add up quickly when dealing with government agencies.

Employers are under assault in America, and California employers have been under siege for decades. It has gotten to the point where an employer must keep a law firm on retainer to fight off the hundreds and hundreds of legal assaults just waiting to happen.

The rule of law has just been greatly degraded, and disgraced, again.

By Katy Grimes

California employers have been regulated and mandated to the point of ridiculousness — and unprofitability. But a California Supreme Court decision this week finally gives employers a break—while still giving employees a break.

Resolving the increasing uncertainty due to legal hair-splitting by employment lawyers over the scope of an employer’s obligations for meal and break periods, the California Supreme Court ruled this week that an employer’s obligation is only to provide the break periods, but not force employees to take the breaks.

The law states that employees must be provided a 10-minute break within the first five hours of an employee’s shift. And, during an eight-hour shift, employers must provide two 10-minute breaks and a 30-minute meal period.

The decision came down in Brinker Restaurant Corporation vs. Superior Court, and is only one of many class action lawsuits on means and rest breaks pending in California. California’s many trial lawyers have made successful practices of suing California’s diminishing employers.

Brinker Restaurant operates Chili’s and Maggiano’s Little Italy. 

At issue in the state is the rights of employers — those people who stick their necks out, and invest their own money into companies which provide a product or service. These employers hire employees, pay them a wage and provide benefits to produce the product or service.

Attack on employers

But employers in California have been under attack for many years.

In addition to the issue of meals and break periods are the putative overtime laws, and whether employers had to pay overtime after eight hours in a day, or after 40 hours (total) of work in a week. Employers argue that paying overtime after eight hours every day restricts scheduling and production flexibility. Most other states base overtime on the 40-hour work week.

California also does not allow employees to work flexible-schedule weeks, such as four 10-hour days; or three 12-hour days, without paying overtime. Many employees prefer these alternative schedules, and employers find much more production and scheduling flexibility with the alternative schedules.

California’s overtime, and hour and wage laws, are complex and largely appear to be driven by the political party in power.

Overtime was enacted many years ago to compensate employees who were being “overworked” by employers, defined by the government as working employees beyond eight hours in one workday. Overtime law requires employers to pay employees time and a half for working more than eight hours in one day, as well as more than 40 hours in one week. Double-time is paid after 12 hours in one day, and again on the seventh consecutive workday in one week.

In effect through 1997, the old daily overtime rules required only certain industries that had specific wage orders regulating them, to pay overtime daily. Manufacturing and clerical workers were subjected to the daily overtime laws. But construction, mining and logging were not, so they could instead opt to pay daily overtime or defer to the federal standard of paying overtime after 40 hours worked in a workweek.

New law

In 1998, Gov. Pete Wilson signed legislation relieving California’s employers from the state’s daily overtime laws, allowing employers to pay overtime after 40 hours in one week, instead of the daily overtime. Widely hailed as a pro-business move, Wilson’s goal was to give employers and employees more flexibility in production and schedules. Labor union representatives were outraged, and claimed their members would lose income with the overtime change.

Almost immediately, Assemblyman Wally Knox, D-Los Angeles, authored AB60, which was referred to as organized labor’s reaction to Wilson’s elimination of daily overtime. In 1999, Gov. Gray Davis signed AB60, called the “Eight Hour Day Restoration and Workplace Flexibility Act of 1999,” dramatically changing the state’s overtime compensation laws. The act went into effect for most employers on January 1, 2000. However the list of exemptions was long, and included public employees.

The 1999 act’s most dramatic change was the restoration of the daily overtime requirement. Ironically, union employees covered by a collective bargaining agreement were not covered by AB60, nor were public employees.

Federal law, and the vast majority of states, only require that overtime be paid for hours worked in excess of 40 per week. However, California requires that overtime be paid after eight hours work in one workday and after 40 hours work in one workweek.

Along with overtime laws, meal and break periods became regulated. Instead of allowing employees and employers to determine break and meal periods, the government stepped in and overreacted.

Fortunately, the state Supreme Court decision this week brought a modicum of sanity back to the workplace and may put an end to some of the class action lawsuits.

“In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods,” the California courts reported.

The court also upheld the 30-minute meal break period “during which the employee is at liberty to come and go as he or she pleases.”  A meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

The court’s opinion in Brinker Restaurant Corporation v. Superior Court is available on the California Courts Web site.