Lactating men, toilet stalls and the arc of justice

Lactating men, toilet stalls and the arc of justice

By Christian Schreiber3 month baby

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

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If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women.  When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with  skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

California has collected $31 million under the Private Attorneys General Act

California has collected $31 million under the Private Attorneys General Act

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By Christian Schreiber

Last week, I posted that the Labor and Workforce Development Agency (LWDA) had collected more than $24 million in penalties from lawsuits brought under the Private Attorneys General Act of 2004 (PAGA) through April 10, 2013.

Though the data is not quite complete (collection numbers are missing for three-plus months since April 2013), it does show that the LWDA has collected another $6,343,884 in penalties (approximately $488,000/month).  Thus, the total number of penalties collected since PAGA was enacted is just shy of $31 million.  That works out to an average of about $17,000 for each of the approximately 1,800 cases allocating PAGA penalties to the LWDA.

There are any number of ways to interpret this data. Among the most interesting aspects of the data is the sharp increase in PAGA penalties collected in the last year or so.  Almost half (45%) of all of the reported “PAGA cases” since 2004 are paid out from July 2013 to this August, as well as a quarter of all penalties (26%). No doubt this corresponds to an increase in the use of PAGA allegations in wage-and-hour class and collective actions, as practitioners have become more familiar with how to use PAGA in their cases.

Still, many important aspects of the law remain unsettled, and guidance from the Court of Appeal has been sparse. If the trend demonstrated by this data continues, however, the courts will not remain on the sidelines for very much longer.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

If you’ve ever wondered how much California has received from PAGA settlements…wonder no more! 1

If you’ve ever wondered how much California has received from PAGA settlements…wonder no more!

????????????????????????????????????????????????????????????????????????????????The California Supreme Court’s June decision in Iskanian v. CLS Transportation has thrust the Private Attorneys General Act (PAGA) back into the foreground of wage-and-hour class actions.  The court held that despite a murderers’ row of anti-consumer, anti-employee/pro-business, pro-forced-arbitration decisions by the United States Supreme Court, the Federal Arbitration Act (FAA) does not preempt California law that prohibits waiver of PAGA claims.  In other words, PAGA lawsuits can still be brought on behalf of large groups of workers, despite the fact that they have signed a class action waiver.

PAGA was passed in 2004 in the face of blistering opposition from the Chamber of Commerce, which spun the legislation as the “sue your boss bill.”  Before suing your boss, however, PAGA requires a plaintiff to exhaust administrative remedies by notifying the employer of the alleged violations of the Labor Code.  Notably, PAGA also mandates that 75% of any recovery of penalties goes back into the state’s coffers through the Labor and Workforce Development Agency (LWDA).  Essentially, PAGA deputizes private attorneys to collect the state’s money for it from employers that have violated the law.

In the years immediately following the bill’s passage, many lawyers did not even allege PAGA claims and questioned the value of adding them to their case.  Government involvement in the case might be complicated, especially for just a 25% share of the recovery.  Much has changed in the ten years since the bill’s enactment.  With class claims vanishing, PAGA claims may well provide the most potent (or only) leverage for workers pursing impact litigation.

With a decade of experience behind us, perhaps it’s time we begin studying PAGA’s impact.  To this end, I sent a Public Records Act request to the LWDA for information about PAGA payments made to the State.  What came back was interesting.

Through April 2013, the LWDA had collected $24,532,690.57 in PAGA penalties from 1,255 cases.  The payments range from small ($4.15) to large ($614,280).

I’m certain there are others out there with the skill and inclination to analyze this data in ways I have not imagined, and my hope is that this will begin a meaningful dialogue about PAGA and its future.

Next week I will post the updated numbers I have received from April 2013-August 2014.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

The myth of big philanthropy 2

The myth of big philanthropy

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By Christian Schreiber

At the end of May, Facebook founder Mark Zuckerberg and his wife, Priscilla Chan, announced a $120 million donation to California public schools.  This donation comes nearly four years after Zuckerberg appeared on Oprah to announce his initiation into the Philanthropic Billionaires Club, touting a $100 million commitment to the Newark, New Jersey public school system.  The gift was hailed as a good-government, bipartisan victory that put children over politics – having been orchestrated by Newark’s Democratic Mayor, Cory Booker, and blessed by New Jersey’s Republican Governor, Chris Christie.

The four tumultuous years that have followed are the subject of a fantastic piece in a recent New Yorker about the difficulties of displacing the entrenched interests and changing the institutional habits of the city’s underperforming schools.  Like others with school-age kids in an urban public school system, I read the story with an eye toward the charter-school-versus-teachers-union narrative that is typically advanced to explain why urban schools turn into “failure factories.”

Then I reconsidered the narrative.  Maybe the problem isn’t the schools.  Maybe the problem is that Mark Zuckerberg has $100 million to give to the Newark public schools in the first place.

The media clearly believe that these types of public-private partnerships have more than a little feel-good appeal. But the scripted “rich-guy-gives-back” moments rarely maintain their luster for very long.  After Oprah finished fawning over Zuckerberg and his largess, she failed to ask Booker or Christie the more obvious questions, such as what kinds of jobs do the parents of Newark’s public school students have? Or can they hope to have?

For years the conventional wisdom has been that good jobs were the consequence of a good education – but maybe it is time we turned the equation around.  How can we expect children to get a good public school education when their parents don’t have a good job? What is the culture of professional achievement parents can model for their kids’ academic achievement?  Maybe no matter how much money is thrown at it, public schools can’t be “fixed” for the kids unless and until we improve the job prospects of the parents.

Ironically, the same Silicon Valley businesses spawning schools of “venture philanthropists” bent on fixing society’s ills oppose increasing the minimum wage, which promises to fix its biggest ill.  One in five children in the U.S. has a parent who is a minimum wage worker, and that number is no doubt higher in places like Newark, where decades of academic failures have left many residents with few choices but a minimum wage job.  And it’s not just minimum wage workers who are suffering. While middle class incomes languish, millionaires sprout, only to abandon the very middle class institutions that need fixing.  We have reached the point where $1,000,000 donations are celebrated, but $1/hour increases in the minimum wage are excoriated as class warfare.

This bizarre world leaves our elected officials with an unenviable choice: address the problem of income inequality (and alienate the donor base), or nibble around the edges of society’s employment problems and ignore the larger and far more important issue of concentrated wealth.  Case in point: the same week Zuckerberg announced his California public school donation, SB 1372, a bill that would have tied a company’s corporate tax deductions to CEO-to-worker pay ratios (the higher the ratio, the lower the allowable deduction), died on the Senate floor with little fanfare.  Because big ideas like this go nowhere, advocates find themselves locked in smaller-issue fights just to hold onto the relatively paltry wages they manage to earn.

The dynamic Booker (now a U.S. Senator) illustrates the problem.  He has become a favorite of the Left and the Right, in large part because he has proven the most adept at “bridging the gap” between the resources of the rich and the needs of the poor.  Though he was the mayor of a small eastern city, he crisscrossed the country to seek audiences with the wealthy (many here in California), his hand out “on behalf of” the underclass that had come to define his city.

Senator Booker’s motives appear to be genuine; but his rise symbolizes an emergent symbiosis between uber-monied interests and New Left politicians.  Senator Booker is handsome and Stanford-educated, and the child of successful, professional parents. His presence on Silicon Valley sofas does nothing to disrupt the cultural feng shui of its tony enclaves.  In exchange for his righteous ask, he offers the bona fides that come with “doing good” for those “less fortunate.”  The poor get venture philanthropy.  The rich get to meddle in other people’s neighborhoods. And his profile (and donor rolodex) grows.

Nothing is likely to change until we recognize that $100 million gifts are a symptom of a problem, not a solution. And you don’t need to go to Newark, New Jersey to find examples.  Just 12 miles east of Facebook’s Menlo Park headquarters is Newark, California, where the second-largest employer in the city is Logitech.  Logitech’s CEO made more than $6.6 million last year, while a teacher earning the median salary in the Newark Unified School District (the City’s largest employer) made less than 1% of that, or $63,445.   If we hope to fix our public institutions, we first need to understand that they will not be cured by the philanthropic whimsy of the tinkering class.

 

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration
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Oakland Raiderettes Lacy T. and Sarah G. filed suit against the Oakland Raiders for various labor law violations.

Employee and consumer advocates have been screaming for years about the harsh realities of arbitration clauses.  We’ve decried them for being secret; for being unfair; and unconscionable and unconstitutional.  Like the frog in the slowly heated pot of water, the public has remained idle in the face of an unprecedented erosion of their rights.  Traction in the media has been hard to come by, and it has been worse among Congressional leaders.

Turns out all we needed was a little pom-pom pizazz.  The media has latched onto the allegations being made by Lacy T., a former Oakland Raider cheerleader and member of the team’s Raiderettes.  Lacy T. has filed a class action lawsuit against the Raiders for wholesale violations of the California Labor Code – failing to pay minimum wage for all required hours worked, failing to pay overtime, failing to provide mandated meal and rest breaks, making illegal deductions from wages for a laundry list of “infractions,” as well as for costs the employer is required to cover, and failing to pay wages on time.

The case has garnered an extraordinary amount of attention, considering the abuses alleged are endemic to low wage positions in many industries.  Undoubtedly, the intense media interest is fueled by  the NFL’s high profile, the fact that every story provides an opportunity to display pictures of the Raiderettes in uniform, and the prospect that this wage dispute may provide titillating details of the Raiders’ demeaning treatment of its cheerleaders.  As the NFL knows, sex sells. Even if it doesn’t pay enough to buy gruel.

The latest Dickensian twist in Lacy T.’s case occurred last month when the NFL moved to have the minimum wage claims taken out of a public courtroom and put into a secret arbitration to be presided over by its $44 million man, NFL Commissioner Roger Goddell.  The claims in the case, and the Raiders’ response, show just how much the team’s management has turned its back on a proud history at the cutting edge of employment civil rights.  Al Davis was the first NFL owner to hire an African-American head coach (Art Shell), a Latino head coach (Tom Flores) and a female CEO (Amy Trask).  But by invoking an arbitration clause unilaterally imposed on its Raiderettes, and pushing Lacy T.’s case into a secret arbitral forum, the Raiders have perverted another of the late Mr. Davis’ ends-means mottos:  Just Win, Baby.

Arbitration was originally conceived by Congress in the 1920s as an alternative mechanism to resolve business disputes.  In the years since, it has steadily been perverted into a means for businesses to steal from and cause injury to individuals without any real threat of liability or significant financial consequence.

It is no small irony that secret arbitration has been championed at the highest level by Supreme Court Justice Clarence Thomas.  Twenty three years ago, during Thomas’ Supreme Court confirmation hearings, Anita Hill publicly accused Thomas of sexual harassment. Her testimony (and the appalling questioning by the Senate committee) riveted the country.  Through her courageous actions, the entire country awoke to the existence of sexual harassment in the workplace.

Today, Professor Hill has been making the rounds publicizing “Anita,” a new documentary about the experience.  Two decades after exposing an insidious workplace problem on the national stage, she is asking a new generation of workers – women and men – to consider the lessons of those hearings.

Which brings us back to Lacy T.   Yes, the media is just as itchy today to publish salacious details about the Raiderettes as it was to report on Clarence Thomas’ crude statements in 1991.  The difference today is that the media may not be given any such opportunity to cover the details of a modern scourge for low-wage workers: wage theft.  And as long as workplace problems – of any kind – are denied public scrutiny and forced into secret star chambers, progress will be elusive. “Anita” reminds us that public testimony can be painful.  But it’s often how change is made.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Three point lines and coal mines 1

Three point lines and coal mines

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By Christian Schreiber

New York Knicks forward Carmelo Anthony is one of the NBA’s biggest stars, playing in the country’s biggest market.  This summer, he will likely be a free agent – available to sign with another team for a contract that will almost certainly be worth in excess of $100 million.  At last month’s NBA All-Star game in New Orleans, Anthony made news for agreeing to consider re-signing with the woeful Knicks for a contract that will pay him less than the maximum available under the terms of the collective bargaining agreement signed between the NBA Players Association and the NBA.

It has become a familiar PR move for superstars in every major sport when free agency approaches.  If they don’t publicly embrace a willingness to be paid less as part of some single-minded pursuit of winning a championship, they are assailed as me-first losers and forced to justify their “selfish” desire to be paid what the market will bear for their skills.

You do not need to be a sports fan to recognize this trope.  It is familiar to anyone who cares about employees, working conditions, and fair pay because it is made of the same stuff shoveled onto “ordinary workers” whose labor doesn’t make a Top 10 list.  Whether it’s low-wage workers on the front lines of the minimum wage debate, or well-paid tech workers fighting wage collusion in the Silicon Valley, workers are often asked to embrace one short-changing or another.  (Sometimes, it is even offered in the metaphor of sport.  But just when exactly did “being a team player” and “taking one for the team” come to mean “work off the clock” or “don’t mind those sexual advances”?)

This is what drives me crazy when I hear athletes decried as overpaid.  We should all recognize athletes for what they really are: workers. In fact, most of them are workers who are regularly exploited for profits passed upward into the pockets of the absurdly rich; workers with little to no job security; and workers who risk their bodies for little pay.  Sure, Anthony has made millions playing a game.  But his billionaire bosses – the Dolan family, who own Madison Square Garden and rank 151st on Forbes’ list of the richest Americans – make tens of millions more from the brand fostered by Anthony and his co-workers.

More importantly, we cannot forget that Anthony and other “superstars” are the rare exception.  Athletes remain among the least prepared to deal with their earnings (NB: not “wealth”), and many high profile athletes wind up broke after short careers.  The vast majority of athletes, in fact, toil for low wages, risk their long-term health, and even death in order for their employers to enjoy a fatter bottom line.  Sound familiar?  While the NFL’s Commissioner, Roger Goddell, made $44.2 million in 2012 (which we know because…the NFL is…you guessed it…a non-profit organization), players in the NBA’s developmental “minor league” (called the D-League) are placed into one of three classifications, and paid $25,500, $19,000 and $13,000.  Even ESPN acknowledges rather Cavalierly that this “means D-League players are virtually playing for free.”

Why is this acceptable? And why doesn’t this cause more concern among worker advocates? Is it because it’s too difficult to see similarities between your skills, and say, LeBron James’? Is it because we believe that athletes have waived their rights and assumed the risk?  Or is it because scrutinizing our escapist institutions is kind of a buzzkill?  It’s a lot easier thinking about Messi’s unparalleled ball skills than about the children who made the ball.  (For years it has been easier to think about anything other than the Raiders. But recent allegations of wage theft against the Raiderettes affirmed what most fans already knew about their quality of the organization.)  Every now and then we get a peek into the caste system that props up our sports industrial complex, and it’s usually unsavory.

Back on the pedestal, athletes are starting to fight back.  Minor league baseball players have filed a wage and hour lawsuit against major league baseball for paying them less than minimum wage.  The Northwestern men’s football team appeared last week at the NLRB in support of their effort to unionize as University employees.  The team’s former quarterback, Kain Colter, testified, “We are first and foremost an athlete.  Everything we do is scheduled around football….It’s truly a job.”  Another group of former college athletes filed an antitrust action against the NCAA for depressing the value of their scholarships. And 25 other former NCAA athletes, led by 1990’s UCLA basketball star Ed O’Bannon, are heading to trial on June 9 against the NCAA in a case in which they claim the NCAA licensed their likenesses without payment.

I give a high five to all these efforts.  Athletes have a unique power to drive public debate on workplace issues.  Whether it’s new frontiers like workplace bullying and political speech or transformational moments that snarkily signal a culture of non-discrimination in the workplace, we ought to be latching onto these moments to relate them to “ordinary workers” and “ordinary workplaces.”  The sports workplace can offer entrenched backwardness just like any other. But it can also be a laboratory for progress.  The next time an athlete is challenged as a spoiled crybaby, it would behoove us to remember he or she is a worker, and to recognize “the power of the uniform” – whether it is worn by a San Francisco janitor or a San Francisco Giant.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Background checks: It’s not a “good thing” 3

Background checks: It's not a

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By Christian Schreiber

Consider the following hypothetical.  You own a restaurant and you’re looking for an assistant to the head chef.  The applicant needs to be able to cook, yes.  But the position also requires administrative skills – ordering, inventory, relationships with vendors and staff.  Creativity with the menu would be a plus.  A woman comes with lots of relevant experience. You notice she has a six-month interruption in her resume in late 2004, early 2005.

Years ago, an interview might have sufficed; perhaps you would have called her references, or tried her out on a lunch shift.  Today, in addition to the tryout and the references, you ask her to authorize a background check.  In the meantime, she wows you on the lunch shift.  Her plates look great.  She cleverly rearranges the pans between orders.  Then you get back her background check: she was convicted in federal court of conspiracy, obstruction of an agency proceeding, and making false statements to federal investigators.  Does she get the job?

While the dark potential of our information age remains thankfully unrealized, the workplace remains a frontier of personal data collection and snooping.  The ACLU claims that “it receives more complaints about privacy in the workplace than about any other issue.”

For workers, this unquenchable thirst for more information often first presents itself under the auspices of “background checks” (called “consumer reports”) required by employers.  Where background checks were once the province of private investigators and reserved for high-level executives, now even low-wage workers are asked to authorize employers (and potential employers) to investigate their “character, general reputation, personal characteristics, or mode of living.”  The trend is dangerous and often serves as the pretext for discrimination that would otherwise be prohibited under State and federal anti-discrimination law.

One of the most popular myths is that employers who screen candidates for credit histories and criminal records can reduce their potential liability from “bad hires.”  Some courts have even adopted the rhetoric that background checks embrace a “common sense” approach because they help employers “better evaluate the trustworthiness, reliability, and effectiveness of prospective employees.”  Yet, while other “common sense” claims hold up based on evidence of their truth, in this arena, employers have never even been asked for any proof that credit and criminal background checks increase retention rates, worker productivity, or diminish liability for negligent hiring or supervision.

In fact, consumer reports are notoriously flawed. The Federal Trade Commission and its successor, the Consumer Financial Protection Bureau, have claimed there may be as many as 42 million Americans with errors on their credit reports.  But this is only part of the problem.  Despite propaganda from the industry, race and gender result “substantial differences in credit scores across racial groups…with blacks and Hispanic whites having notably lower credit scores than other racial groups. These racial differences persist, even after controlling for other demographic characteristics such as age, marital status, and an estimate of income.”  Though the law is still evolving in this area, denying employment on the basis of a bad credit history, therefore, may be tantamount to denying employment on the basis of race.

For workers with criminal histories, background checks present a more obvious and intractable problem.  As a practical matter, criminal background checks are often harmful beyond the criminal conviction history they may include.

Like credit histories, they are frequently incorrect—sometimes the reports mix up identities (are you the same “Michael Miller”?), omit essential information about the offense or the disposition, or misstate charge levels or convictions.  By the time such errors are challenged or corrected (companies have up to 30 days), employers have already moved on to the next applicant.  This can also involve purely practical considerations: employers may understandably have difficulty sifting through charging codes, references to statutes, or interpreting dismissals and dispositions.  Is it worth understanding a complicated report when a stack of “simple reports” offers a large enough applicant pool?

Or consider an individual who has had her record “expunged,” a process whereby the individual withdraws a guilty plea and the court dismisses the charges.  Consumer reporting agencies often unlawfully report both the conviction and the dismissal, which they then claim is “factually accurate.”  One can fairly ask what purpose the expungement serves if it fails to shield the conviction from later disclosure.

As the government grows more opaque, criminal records have become more public.  The increase in computerized public records has made background checks easier and cheaper to obtain.  What once required a trip to the courthouse is now accomplished by a few seconds at the keyboard.  Consumer reporting agencies use sophisticated databases to package, market and sell criminal record information and credit histories to anyone with curiosity and a credit card.

This isn’t to suggest that childcare providers shouldn’t have access to criminal records of convicted child abusers, or that employers should not be able to discuss resume gaps with applicants and evaluate a potential employee’s record on a case-by-case basis.

Ultimately, given the over-representation of African Americans and Latinos in the criminal justice system, using criminal background histories is itself a race-conscious undertaking.  This alone should give employers pause.  Blind reliance on background checks of dubious reliability used to prescreen applicants only encourages discrimination.  More importantly, it denies willing and capable workers, including ex-offenders, the opportunity to make an honest living.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Thinking “outside the box” means “banning the box”

Thinking

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By Christian Schreiber

Last month the U.S. Supreme Court again refused a request by Governor Jerry Brown to stay a Ninth Circuit decision ordering the release of 9,600 inmates by the end of the year.

In spite of the decision, no reasonable person believes the streets will be teeming with violent criminals on New Year’s Day.  What is certain, however, is that the ranks of California’s unemployed will swell with those former prisoners, as those released will join thousands of other “ex-cons” unable to find work because of their past criminal convictions.  While news of sluggish job growth and lingering unemployment cycles through the front pages every few weeks, scant attention is paid to the legal obstacles placed in the path of thousands of would-be workers who have been convicted of a crime.

Momentum has been building to address at least one of those obstacles – the dreaded “paper screen” intended to ferret out applicants with criminal records.  Governor Brown’s signature on Assembly Bill 218 placed California among a growing list of jurisdictions that are “Banning the Box.”

Ban-the-Box initiatives were originally pushed by formerly-incarcerated people.  They believed that by eliminating the kind of “check the box”-type question —  “Have you been ever been convicted…” — from employment applications, they might be given a fair opportunity to prove their worthiness for the job.  Now employers, including most recently Target, are seeing the wisdom of the approach.

Help for former prisoners re-entering the workforce is long overdue.  The United States leads the world in incarceration rates, and California ranks at or near the top of every list measuring the number of individuals in federal or state prison, local jails or under supervised release.  According to the Department of Justice, Bureau of Justice Statistics, incarceration rates have fallen slightly the last two years, meaning more former prisoners are re-entering the work force each year.

Ban-the-box legislation is just the first step, but it’s an important one.  In the absence of legal protections, what former prisoners face can barely be distinguished from Jim Crow.  Individuals with past criminal convictions face discrimination that is not only common, it’s effectively encouraged.  No group continues to be discriminated against so openly, with base racial prejudices endorsed at the highest levels.  Supreme Court Justice Antonin Scalia no doubt speaks, albeit in code, to these unconscious racial fears many people have about the release of any inmates—whom he describes as “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia’s myth of a super-criminal appears to have more in common with his taste in TV or literature than it is does in reality, where nearly a third of released prisoners are over 40.  But he’s hardly alone.

Few constituencies are more marginalized than former prisoners.  Our willingness to dehumanize former prisoners ignores the simple fact that the only difference between “them” and “us” is that they got caught while we got jobs, and get to keep them.

Stories of redemption are easy to find, though countless others we don’t hear about break the other way.  It’s time we treated ex-offenders individually and on their own merits so that redemption can become the rule, and not the exception.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

EEOC loses battle (but not war) on discriminatory background checks 2

EEOC loses battle (but not war) on discriminatory background checks

By Christian Schreiber

When it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job.  Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks.  According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds.  Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness.  Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks.    These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks.   A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment.  After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence.  However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”  Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants.  Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence.  In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.)  Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants.   Advocates hope Freeman doesn’t signal that more bad news lies ahead.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

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