New Philadelphia Law Restricts Criminal Records Inquiry On Employment Applications

LEGAL ALERT
New Philadelphia Law Restricts Criminal
Records Inquiry On Employment Applications

On April 13, 2011, Philadelphia Mayor Michael A. Nutter signed
the Fair Criminal Screening Standards Ordinance, which will
change both the application and screening processes for entities
with employees working in Philadelphia. This ordinance will become
effective on July 12, 2011.
The new law establishes limits and requirements for the screening of
criminal records by certain Philadelphia employers, and will likely change
both the application and screening processes of many employers.
This law generally prohibits unfair discrimination against persons
previously arrested or convicted of one or more criminal offenses which
are not then pending against the person. The City of Philadelphia passed
this law in the hopes that it will help qualified ex-criminal offenders obtain
access to employment opportunities, reduce recidivism, increase public
safety and stabilize city neighborhoods.
General Requirements of the Screening Standards
The new law will preclude city agencies and private employers
employing ten or more persons within the City of Philadelphia from the
following actions when seeking to fill a job:
• making any inquiry regarding criminal convictions before and
during the application process and initial interview process, or
from requiring that applicants disclose such information;1 or
• inquiring about an individual’s arrests that did not result in
convictions, unless such inquiry is required or permitted by
another law.
It is expected that employers will be able to ask about criminal
convictions and conduct a criminal background check once the initial
interview is conducted. Employers are required to abide by the following
standards when making a criminal background inquiry:
• determine an applicant’s initial qualification for a position prior
to conducting a criminal record check;
• consider the bearing, if any, that the criminal offenses for which
a person was previously convicted will have on his or her
fitness or ability to perform one or more of the duties
and responsibilities of the position in question, as well as
the elapsed time between the offenses and the potential
employment, and the seriousness of the offenses;
• notify the applicant of any potential adverse employment
action resulting from a criminal check, including specifying the
part of the record check concerning the city or the county
agency; and
• provide the applicant or the current employee an opportunity
to present information rebutting the accuracy or relevance of
the criminal record report, and to claim violation of this law.
Advice To Employers
Employers who will be subject to the requirements of this law should
review their employment applications used for employees in Philadelphia,
as well as in cities with similar laws, to ensure that applications provided
to applicants prior to or during initial interviews do not include questions
about criminal convictions.
You should also begin the process of educating your hiring managers,
human resources and recruiting professionals, including professionals
located outside Philadelphia who recruit for, and supervise, jobs that will
be filled in Philadelphia, regarding this new law to ensure that the
recruiting and interviewing processes comports with it.

For more information visit our website at www.laborlawyers.com or

contact any attorney in the Philadelphia office of Fisher & Phillips

at 610.230.2150.

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AWTTW*: OSHA TARGETS EMPLOYERS ON TEXTING WHILE DRIVING

AWTTW*: OSHA TARGETS EMPLOYERS ON TEXTING WHILE DRIVING

By Steven K. Ludwig

LABOR & EMPLOYMENT DEPARTMENT ALERT
APRIL 2011

Q. What’s worse for an employer than having an employee involved in a serious auto accident caused by

distracted driving related to texting on the job?

A. Coping with the liability and then being fined by the Occupational Safety and Health Administration

(OSHA) for having failed to adopt and communicate a policy to educate employees of the risks and

prohibit certain activities that result in distracted driving.

Since the leading cause of worker fatalities is motor vehicle crashes, OSHA has announced a Distracted
Driving Initiative and is intent upon flexing its muscles against unfortunate employers that have not modified their policies before being caught in OSHA’s dragnet.
Employers must prohibit any work policy or practice that requires or encourages workers to text while driving, according to OSHA. In OSHA’s view, employer that provide financial or other incentives that encourage workers to text while driving – or organize work so that doing so is a practical necessity – violate the law. In OSHA’s view, an employer that fails to provide a safe workplace free of the recognized hazard of texting while driving exposes itself to enforcement action.

If OSHA receives a credible complaint, it will investigate and issue citations and penalties to end the
practice. So it would be prudent for employers to update or issue a cell phone/electronic device usage policy to get ahead of this juggernaut.
HTH.OO.

* A word to the wise, in text lingo.

For more information about the information in this alert, please contact Steven K. Ludwig at 215.299.2164 or sludwig@foxrothschild.com or any member of Fox Rothschild’s Labor & Employment Department.

This publication is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply
to specific facts and situations. This publication is based on the most current information at the time it was written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this publication.


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New Disability Discrimination Regulations Impact on New Jersey Employers

New Disability Discrimination Regulations Impact on New Jersey Employers
By: Beth Lincow Cole
http://www.humanresourceattorney.com

While recent federal changes involving the Americans with Disabilities Act have attracted a great
deal of attention in employment circles, New Jersey employers should also be aware how the
changes will impact them.
Additionally, the New Jersey Division of Civil Rights has proposed an amendment to its
disability discrimination regulations that the New Jersey Division on Civil Rights says are
consistent with the federal changes.
The proposed regulations contain several provisions that could impact New Jersey employers, as
outlined below:
Public Hazard Defense: The proposed regulations appear to significantly restrict the availability
of this defense. Under current law, an employer can choose not to hire an applicant with a
disability or terminate an employee who poses a hazard to the employee or others in the
workplace. The new regulations will require the employer to explore reasonable
accommodations before doing so as it includes the language “where the hazard cannot be
eliminated or reduced by reasonable accommodation.”
Undue Hardship Definition: While the amended laws would still allow employers to consider
cost when determining whether accommodating a disabled individual would cause “undue
hardship,” the new regulations would require employers to consider available resources that may
offset the cost, including tax credits or outside funding.
Language Regarding Pre-Existing Condition Coverage: The last change is largely semantic. To
avoid confusion or possible contradiction with respect to coverage of pre-existing conditions
mandated by recent health care reform, the language allowing employers to offer medical
coverage excluding pre-existing conditions is deleted. In its place, the proposed language states
that employers may offer medical insurance that limits coverage for certain procedures or
treatments, “as long as these activities are not being used as a subterfuge to evade the purposes of
the subchapter.”
The official public comment period on the amended disability regulations expired on March 19,
2011. Employers are advised to stay tuned to this blog for information regarding the status of the
legislation in the coming months.


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Can Employees Be Criminally Prosecuted for Violating Their Employer’s Computer Policies?

Can Employees Be Criminally Prosecuted for Violating Their Employer’s Computer Policies?
BY: Nick Akerman

In California, Washington, Oregon, Alaska, Montana, Arizona, Nevada and Idaho – states
covered by the 9th Circuit Court of Appeals -- the answer as of yesterday is an emphatic “YES.”
In U.S. v. Nosal, 2011 WL 1585600 (9th Cir. April 28, 2011) the court clarified its decision in
LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 (9th Cir. 2009) which up until now was
considered to be a bar to using the Computer Fraud and Abuse Act (“CFAA”), the federal
computer crime statute, against employees who stole their employer’s computer data. This case
places the 9th Circuit in sync with the other Circuit Courts that permit the CFAA to be used
against employees who steal data from the company computers.

The CFAA, while primarily a criminal statute, permits victims of computer crime, including
companies, to bring civil actions for damages and injunctive relief based on violations of the
statute. Title 18, U.S.C. §1030. A key element in proving either a civil or criminal violation of
the CFAA is that the employee accessed the company computer “without authorization” or
“exceed [ed] authorized access.” Brekka has been cited for the simplistic proposition that
employees have permission to access the company computers and, thus, by definition cannot
access the company computers without authorization.

David Nosal, a Korn/Ferry executive, was indicted for stealing confidential data from the
company computers prior to joining a competitor. Nosal had allegedly recruited “three
Korn/Ferry employees to help him start a competing business.” Id. at *2. According to the
Indictment, these employees, “using their user accounts to access the Korn/Ferry computer
system” “transferred to Nosal source lists, names, and contact information from the ‘Searcher’
database – a ‘highly confidential and proprietary database of executives and companies’ – which
was considered by Korn/Ferry ‘to be one of the most comprehensive databases of executive
candidates in the world.’” Id.

The district court had originally upheld the CFAA counts against Nosal based on precedent in
other Circuits but changed its decision and dismissed the counts after the Brekka decision. The
government appealed, relying on Korn/Ferry’s computer policies that restricted the scope of
employees’ access to the company computers including one that “restricted the use and

disclosure of all such information, except for legitimate Korn/Ferry business.” Id. The

government argued that based on these policies, Nosal had exceeded authorized access.

The court agreed with the government, citing the statutory definition of ‘exceeds authorized

access” which means “to access a computer with authorization and to use such access to obtain

or alter information in the computer that the accesser is not entitled so to obtain or alter.” The

court held that the word “so” in the statutory definition “refers to an accesser who is not entitled

to access information in a certain manner. Id. at *4. Thus, the court held that “an employee

‘exceeds authorized access’ under §1030 when he or she violates the employer’s computer

access restrictions – including use restrictions.” Id.

Nosal distinguished its prior decision in Brekka on the facts -- “[b]ecause LVRC [the employer]

had not notified Brekka of any restrictions on his access to the computer, Brekka had no way to

know whether – or when – his access would have become unauthorized.” Id at *6. The key

difference was the Korn/Ferry computer policies. The court concluded “as long as an employee

has some permission to use the computer for some purpose, that employee accesses the computer

with authorization even if the employee acts with a fraudulent intent.” Id. Thus, “as long as the

employee has knowledge of the employer’s limitations on that authorization, the employee

‘exceeds authorized access’ when the employee violates those limitations.” The court

emphasized, “[i]t is as simple as that.” Id.

Finally, the court directly responded to Nosal’s argument that its decision “will make criminals

out of millions of employees who might use their work computers for personal use, for example

to access their personal email accounts or to check the latest college basketball scores.” Id. at *7.

The court pointed out that the CFAA “does not criminalize the mere violation of an employer’s

use restrictions.” Id. Rather, the employee must evince an intent to defraud and take something

of value. Thus, there must be more than “[s]imply using a work computer in a manner that

violates an employer’s use restrictions.” Id.

This case is all about instituting clear and conspicuous computer use policies. (“Korn/Ferry

employees were subject to a computer use policy that placed clear and conspicuous restrictions

on the employee’s access to the system in general and to the Searcher database in particular” Id).

The major take away from the Nosal decision is that every company that is serious about

protecting its computer data should have comprehensive computer policies that clearly spell out

the scope of their employees’ authorization to access the company computers. It is no longer a

viable option to do nothing.

Nick Akerman (212) 415-9217 akerman.nick@dorsey.com

Nick is a partner in the New York office of Dorsey & Whitney.

For additional articles like this one or to watch my one hour CLE seminar video go to:

http://computerfraud.us

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SIGN OF THE TIMES - AN INCREASE IN THE JOB MARKET!

INCREASE SEEN IN HR JOBS!

HR Help Wanted Job boards are seeing increases in HR postings over the past year. Searches for HR jobs are up by one-third, compared to last year when HR professionals were hit hard by the recession. The hike may not only be good news for HR, but it could also be a sign that the overall job market has turned a corner.
By Jared Shelly

As a profession, HR seems to be emerging from the recession quite nicely.
Job postings for HR and recruiting positions were up 34 percent year-over-year in March and job-seeker clicks on those ads increased by 51 percent, according to Indeed.com, which aggregates employment ads from a variety of online job boards and company websites.
That's quite a change from the past few years, when HR was hit hard during the recession. In fact, more than 25 percent of HR leaders reported a reduction in HR staff during the recession, according to a study by the Harvard Business Review Analytic Services and Unum, an employee benefits provider.
Indeed began keeping tabson HR jobs in March because it "is responsible for an organization's workforce planning" and "provides a unique early indicator for the broader job market," according the company's blog.

HR's status has actually gotten a lift since the recession, according to Future of HR, a research study by John Boudreau and Edward E. Lawler III, professors at the University of Southern California's Marshall School of Business in Los Angeles.

It finds that 25 percent of managers said the power and status of the HR function increased since the recession, while just 7 percent said it decreased and 68 percent said it stayed the same. Nearly one-third (29 percent) said HR plays a more strategic role now, while just 3 percent said it plays a decreased role in strategy since the recession. Twenty-six percent said the effectiveness of the HR function has increased, while just 14 percent said it decreased.

Speaking at the Human Resource People and Strategy conference in April, Lawler said that businesses that could "tie talent management and talent development to the needs and business strategies [have emerged] more powerful in the organization [after the recession]. Those who couldn't, lost power."
Boudreau says he's seen more students hired into HR jobs recently, as well as an uptick in colleagues moving from consulting roles into permanent HR roles.

Recruiting and training jobs, in particular, were cut during the recession, leading many organizations to shift to shared services or outsourcing, he says. HR functions have become "lean and mean." "It'll be interesting to see if [those jobs return and] that translates into a proportional increase in HR positions," or if HR staffing remains at current levels, he says. One thing is for sure: "They probably wouldn't hire a lot of permanent HR folks if they weren't thinking there was a lasting reason to have them." The demand for HR staff is also indicative of an uptick in hiring as well as an improving economy, says John Challenger, CEO of Chicago-based global outplacement and executive-coaching firm Challenger, Gray and Christmas.
"The fact that they're hiring more of these HR people is a sign they're in the midst of, and are preparing for, more hiring to come," he says. But, these days, companies are being careful to only hire as needed.
"Companies are not hiring in advance of what they need ... ," says Challenger. "This jump in [HR] jobs is a real sign of [business] need -- in many ways [it's] a real harbinger of what's coming."
The economic outlook as a whole has been brighter, as more than 200,000 private-sector jobs were added in both February and March, according to the Bureau of Labor Statistics.


"That number is the Holy Grail," says Challenger. "I think for a company, when you see those numbers, you're much more focused on recruiting, talent management, staffing, etc. It feels like the jobless recovery aftermath of the recession is over."HR hiring at the executive level is also up, says Hal Johnson, chairman of human resources for Korn/Ferry, noting the Los Angeles-based retained-search firm has experienced seven straight positive quarters, "The search business is booming ... ," says Johnson. "HR is definitely a part of that." Johnson agrees that the increased demand for HR staff shows that companies are optimistic about the economy. "It's not only hiring," he says. "[Companies are] expanding. They're hopeful that the recession is over somehow. They're funding new projects. They're opening in China."
Another reason more HR professionals are needed is to plan for a workplace change that seemed to have moved to the back burner once the recession began: baby boomers retirements.
"A lot of people who delayed decisions about retirement, who had really been sticking it out ... are now at a place where they're leaving the workforce," says Johnson. Company leaders are once again focusing on preparing for that eventuality: "Is the pipeline full? Do we have the people to grow in the future? If not, what are we doing to identify them and grow them?" he says. "That puts pressure on the HR function."


April 27, 2011
Copyright 2011© LRP Publications


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Generation-i: Responsible. Social. Entitled?

Generation-i: Responsible. Social. Entitled?
BY: Aman Singh Das
REPRINTED FROM: VAULT.COM
Posted on Friday, April 15, 2011

"Baby boomers have done a great job of raising kids who are social, want work/life balance, care for their community and have a sense of responsibility. But they also feel entitled and expect their employers to communicate with them and listen to them."
That was Thomson Reuters' Manager of Community Relations Martha Field at the recently concluded Charities@Work conference in Chicago.

Let's say you work at a company with over 1,000 employees. Can you confidently say that everyone you work with is persistently engaged on the latest innovation across departments and management hierarchies?

In a millennium that promises to test our business survival skills like no other, the challenges ahead for HR, talent management, and community relations can feel endless and mind-numbing—especially when generational change at the management level is factored in.

According to a diverse panel of executives at the Charities@Work conference, however, these quandaries need some perspective and a dose of realism.

The panelists were Martha Field, manager of community relations with Thomson Reuters, Gretchen Korf, director of finance and social responsibility with UnitedHealth, Mary MacDonald, director of business development and managing director of EarthShare, and Jillian Walsh, director of corporate giving and community relations with Zurich in North America.

After offering insights on some specific organizational successes, the panelists identified five distinct challenges that promise to test every skill, and ounce of willpower to keep your team committed, motivated and energized.

1. Technology
Whether you are a millennial, a Gen-Y or a Gen-I, technology has been a part of your life like no demographic before you. You’re the high-touch people, the harder-to-engage-in-person crowd. (I don’t blame you; I'd rather text too.)

Can we expect a future devoid of spreadsheets, detailed project briefs, and time-consuming expense statements? With several startups already using the iPad to take care of these tasks, it seems imminent that larger organizations will succumb to the temptation of technology, especially as generations change hands at senior management levels.

2. Social Media
We are constantly connected. The tools available are endless and many more continue to pop up every week. Welcome to the age of 24x7 connectivity.

But what does this mean for the traditional office work culture? How can management ensure employees are consistently engaged, involved and empowered to work for the business' growth when there are distractions aplenty and the distinction between personal and professional continues to diminish.

Of course many companies are responding by imposing strict social media policies. Others are hesitant and most are unclear. Facebook and Twitter have offered uncharted territory for organizations who are used to functioning under regulation and a black-and-white canvas of right vs. wrong.

Enter the millennials who use social media in every small decision, personal or professional. They use these networks to engage, advocate and protest. This generation tweets and likes each other to efficiently crowd-source, innovate and solve. The regimented traditional workplace with limited access to the world outside their company's immediate operating territory just won't cut it for much longer.

And for those of you in HR, ethics, talent management, legal and compliance, this is going to mean adapting or losing out in the battle for the most talented jobseekers.

3. Globalization
How many times have you heard the phrase "We are a global company?"

Today that doesn’t necessarily mean the organization has employees outside the U.S. In fact, many companies with a global footprint operate virtually beyond this country's borders, making our interdependence across regions, demographics, and interests, much more crucial for survival.

4. Climate Change
While the panelists didn’t add much here, the message is pretty clear. If you still belong to the camp that believes global warming—or cooling—is a hoax, you're hurting yourself. The changes in the environment coupled with an almost continual cycle of natural disasters are already forcing new immigration patterns and a re-analysis of business obligations.

In the context of organizational competency then, these changes are sparking new concerns about job security, safety and business sustainability. Just three weeks ago, Goldman Sachs bankers in Tokyo were told they could move to southern Japan where radiation levels posed less risk, but that if they did so, they'd no longer have a job. Needless to say, the news was not welcomed by the staff, with several leaving the city despite the ultimatum.

5. Recession
The last three years have left everyone—save perhaps some of the investment bankers on Wall Street—a bit more cynical about life and work. What do we value most in our jobs, where is the meaning, the purpose? How can we make sure we learn from the mistakes of 2008?

Answers to many of those questions remain unclear.

Charles Ferguson, director of Oscar-nominated Inside Job recently told Dealbook, "The problem is that in finance people can get enormously wealthy by causing enormous damage to many other people. And that hasn't been stopped." Ferguson also said that he wouldn’t be surprised if there was another financial crisis in the next 10 years.

What has this meant for students, the unemployed and recent graduates? A new, value-based approach to job hunting—something that was less of a priority in recent years.

Or as CSRwire's CEO Joe Sibilia recently put it during a panel discussion we co-presented: "What we are witnessing is a shift in consciousness. And it's here to stay."


About the Author
Aman Singh Das is the Corporate Responsibility Editor at Vault.com. She is a New York University alum and previously wrote for The Wall Street Journal. Her area of work includes corporate diversity practices and sustainability, and how they translate into recruitment and strategic development at Fortune 1000 companies.


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