Ariana Grande’s online antics result in job loss at the White House

July 25, 2016 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Newly leaked e-mails reveal that pop sensation Ariana Grande lost a gig performing at the White House based on a video circulated online last year. The surveillance footage taken at a California doughnut shop showed Grande licking a tray of doughnuts and saying, “I hate America.” The footage was later picked up by TMZ and circulated across social media, creating a firestorm of controversy and criticism against the former Nickelodeon star. A White House staffer tasked with vetting Grande for the job responded to her request to perform with a resounding “Nope” upon learning of her extracurricular activities.  Donut with sprinkles isolated

In refusing to allow Grande to perform, the White House joined the ranks of organizations that vet potential hires by checking applicants’ social media content. According to a 2014 survey from CareerBuilder, forty-three percent of employers use social networking sites to research job candidates. Of those, 51 percent reported that they refused to hire a candidate based on content found on social media. Forty-five percent of employers also use search engines such as Google to research potential job candidates.

While researching a candidate’s on-line presence could provide information helpful to the hiring process, the Society for Human Resource Management (SHRM) suggests that HR professionals follow some guidelines to ensure their snooping is lawful. For example, to avoid claims of discrimination, it is less risky to check social media sites after an applicant has been interviewed, when the applicant’s protected characteristics are already known to the employer.

In addition, employers should be consistent and subject all applicants to similar scrutiny. In other words, if you check one candidate’s social media profile, you should check others’ as well. Also, if you do rely on damaging content found online to deny employment, you should print the page containing the information to document the basis for your decision, in case the post is later deleted.

Lastly, keep in mind that some state laws limit your ability to refuse to hire an applicant based on off-duty conduct, and you may be subject to the federal Fair Credit Reporting Act (and corresponding state laws) if you use a third-party to investigate applicants’ social media activity.

If you follow these guidelines, you can rest easy and just say “Nope” to the next doughnut-licking applicant you encounter in the hiring process.

 

Bloodline: We did a bad thing

December 11, 2015 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

“We’re not bad people, but we did a bad thing.” This is the tagline for the Netflix original thriller-drama Bloodline. If you haven’t seen it, run to add it to your watch list immediately. The show takes us into the lives of the Rayburn family, owners of a picturesque beachside hotel in the Florida Keys. Despite the gorgeous backdrop, this family is plagued by its dark and violent past. Pay attention to the opening sequence because a storm is certainly coming.  Woman Mugshot

When the oldest son, Danny, returns home after years away, the family reunion is anything but happy. Need proof? We know from the very start that Danny will end up dead by the hands of one (or more) of his siblings, but it will take the rest of the first season to unravel who kills him, how, and why.

During Danny’s descent into darkness (all he wanted to do was to give his toast at the anniversary party, right?), he and his family members commit any number of sins, many of which could destroy the family, not to mention the family business. To give but one example, Danny uses his criminal connections to threaten a witness and save one of his co-conspirators, Carlos, from some jail time after a fight. Danny ends up hiring Carlos to work at his family’s hotel, a cover for their actual moneymaking plan, despite (or, indeed, because of) Carlos’ criminal history and his recent run-in with the law.

This type of scenario is probably not what the Equal Employment Opportunity Commission (EEOC) had in mind when it released its enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin. Title VII prohibits employers from treating individuals differently based on those protected statuses, but it also prohibits employers from applying a facially neutral policy that has a disparate impact on individuals in a particular protected group.

The EEOC has warned that even when employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin. In short, employers must show that such exclusions are job-related and consistent with business necessity. The EEOC has called for a fact-based analysis whereby employers should consider (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense, conduct, and/or completion of the sentence, and (3) the nature of the job sought or held.

Danny, however, isn’t your typical employer. For his purposes, a criminal history is a virtue and an opportunity for exploitation. After all, how do you pay back your boss for having the prosecution’s star witness frightened out of testifying against you at your upcoming trial? Nothing good, I can tell you, but it certainly makes for an entertaining show. So tell us your thoughts in the comments section as well as your predictions for Season Two in the New Year.

Per Liar Liar, performing background checks on minors can be major issue

November 02, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

Because I’m a lawyer and because my friends know I love movies, people frequently ask me to identify my favorite lawyer-related movies. My personal favorites are My Cousin Vinny, A Few Good Men, and Liar Liar. To the extent you agree or have lawyer-related movies you like as well, feel free to weigh in. As luck would have it, this week’s employer blog lesson comes from the well-timed juxtaposition of a client inquiry and what has to be my hundredth viewing of Jim Carrey’s Liar LiarSign on the Line

Specifically, a client in the hospitality industry recently asked whether it had to obtain parental or legal guardian consent to conduct background checks and drug screens on its minor employees. Particularly in the summer months, many restaurants and hotels hire minors. Unfortunately, many employers mistakenly use the same hiring materials regardless whether the employee is a minor or has reached the age of majority. Thus, the employers ask their minor employees to sign the required consent forms. But do these minor employees have the legal capacity to execute these forms?

This is where Jim Carrey’s eccentric, ethically challenged character in Liar Liar can teach employers a lesson. As you may recall, Carrey represents a philandering wife in her divorce proceeding in which she seeks half of her soon-to-be ex-husband’s multi-milliondollar estate. Carrey’s client, however, signed a prenuptial agreement containing a fidelity clause. A fidelity clause essentially provides that if one spouse cheats on the other, the cheating spouse isn’t entitled to recover certain identified assets in the divorce proceedings.

As luck would have it, Carrey’s client had slept with at least seven other men and the husband had audio footage of the wife “making love” to the most recent paramour. Carrey, who early in the movie was not exactly morally constrained, was fully prepared to have his client and her paramour lie about their sexual relationship. But then, Hollywood magic intervenes. Carrey’s young son, who was tired of his father’s unfulfilled paternal promises, makes a birthday wish that for one day Carrey cannot lie. The wish comes true, coincidentally, on the very day of Carrey’s family law trial.

As a result of his son’s wish, not only can Carrey not lie, but he can’t allow his clients to provide testimony that he knows is a lie. Indeed, Carrey impeaches his own star witness on the stand, causing the paramour to admit to the “lovemaking” with Carrey’s client. The movie obviously contains a more colorful description of the relationship, but I like to keep things PG. Once the paramour admits to the relationship, all hope for his client’s case appears lost. But then, while reviewing his client’s birth certificate, Carrey has an epiphany.

From the birth certificate, Carrey realizes that his client lied about her age so that she could get married. That is, Carrey’s client claimed she was 18 at the time she married the husband, when in fact she was only 17. As the name implies, Carrey’s client signed the pre-nuptial before she got married. Thus, she was a minor at the time she signed. Therefore, the agreement was void and, as Carrey put it, “[t]he fact that my client has been ridden more than Seattle Slew is irrelevant.” Once the agreement was voided, his client received half of the marital estate. “He shoots, he scores.”

So where is the lesson for employers here? Just like Carrey’s client in Liar Liar, minor employees don’t have the legal capacity to consent to background checks and drug screens. Employers hiring minors should ensure that their new hire packets include appropriate parental or legal guardian consent forms and that the forms are signed and returned.  Without such consent, employers may unintentionally be breaking various state and federal laws applicable to these areas. So, as Jim Carrey tells his recidivist criminal client after he robs someone at knifepoint, “Stop breaking the law, [expletive].”

If you have questions about background checks, drug screenings, parental consent forms, or other employment related issues, contact EntertainHR contributing writer Ed Carlstedt or another attorney with FordHarrison LLP. Ed works in the firm’s Tampa, Florida, office and can be reached at ecarlstedt@fordharrison.com.

Restricting employers’ use of credit checks and why Mr. Robot agrees

August 28, 2015 - by: David Kim 0 COMMENTS
David Kim

If you’re like me, you don’t necessarily equate the USA network with riveting and innovative television. While the network has respectable ratings, I can’t help but tune out when I see a commercial for Suits, Graceland or Royal Pains (apologies to those fans of the showI believe you, I’m sure they’re good). In fact, although many have noted the increase in quality TV programming, accolades have been reserved for those such as HBO, AMC, and Netflix, which have pushed the limits of what a television show could be in our collective minds, while simultaneously providing entertaining and complex stories. Now, it appears USA has decided to the join the party. USA’s Mr. Robot is fast becoming one of my favorite shows, and as evidenced by the widespread critical and popular acclaim it has received, it is clear I’m not the only one (97% rating on Rotten Tomatoes if you’re into that sort of thing). Credit Report (2)

Mr. Robot revolves around Eliot Alderson, a brilliant yet flawed individual. Eliot works as a security engineer at Allsafe, a cybersecurity company. However, Eliot also is incredibly adept at hacking (social media accounts, bank records, personal information, etc.) and uses those skills to not only learn about people, but often to act as a cyber-vigilante by protecting those he cares about or reporting bad people anonymously to the authorities. It is not surprising this is the only way Eliot can connect as he struggles mightily with social anxiety disorder, clinical depression, paranoia, and delusion.

Eliot despises “E Corp” (who he refers to as Evil Corp.), a global conglomerate with its hands in seemingly everything. E Corp. also happens to be Allsafe’s biggest client. While there are a multitude of characters and storylines, the main storyline in season 1 revolves around a mysterious man who Eliot dubs “Mr. Robot” (due to a shirt the man wears bearing that moniker), played by Christian Slater (yes, that Christian Slater). Mr. Robot is the leader of a hacker group called “fsociety,” has been observing Eliot, and wants to recruit him to the team.

Their first missionto destroy and delete all of E Corp’s debt records. According to Mr. Robot, E Corp. owns 70 percent of consumer debt, and by erasing all debts and mortgages, it could create “the single biggest incident of wealth redistribution in history.” With Eliot’s disgust of E Corp. fairly evident, it’s no surprise that his interest is piqued. Let’s just say there are a lot of twists and turns from there.

To be fair, Mr. Robot’s thematic elements are likely to be geared more to the introspective and existential as the series progresses. Yet, while the concept of eliminating debt isn’t new (remember Fight Club), there is a focus in season one on putting everyone on equal footing and out from under the hand of the controlling majority. Debt forces people to continue working the same undesirable job, to be a spoke in the financial wheel that favors the wealthy, and causes them to eventually “die in debt doing things they never wanted to do.”

In our world, certain legislators feel that debt even precludes the attainment of employment to begin with. Just last week, the New York City Council passed the Stop Credit Discrimination in Employment Act, which amends the NYC Human Rights Law to prohibit most employers from making employment decisions based upon an employee’s or applicant’s consumer credit history. Credit reports permit employers access to an individual’s financial history, including credit use, bankruptcy, and credit inquiries.

Proponents of the NYC law have stated that an employer’s ability to utilize credit reports in making employment decisions disadvantaged minorities, low-income workers, and victims of domestic violence and had no real correlation to job performance. As with any law, numerous exceptions exist. For example, with respect to positions related to law enforcement, positions where the individual is required by law to be personally bonded and positions with signatory authority over third party funds/assets valued over a certain amount, amongst others, can still require credit reports.

It is expected that the bill passed by the council will be signed by Mayor Bill de Blasio into law, and will then take effect 120 days after enactment. At that time, NYC will join a growing number of jurisdictions, including but not limited to California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington, that restrict an employer’s right to obtain or use an individual’s credit information in making employment decisions. However, NYC’s bill is considered one of the broadest in the country as it does not include a broad exemption for all positions handling money.

Employers are reminded to review their local and state laws with respect to the use of credit checks before performing such checks on certain applicants and employees. Failure to do so could cause employers to be subject to a variety of damages under the applicable laws. While there still remains a question as to whether Mr. Robot and his gang of hackers will be successful in their attempt to eliminate debt from the equation, unfortunately for most of us in this world debt still exists. And unfortunately for employers, the existence of debt doesn’t mean you necessarily are permitted access to it.

To kill Atticus Finch? HR pros aren’t afraid of the truth

August 10, 2015 - by: Matt Gilley 3 COMMENTS
Matt Gilley

It’s been a long time since I, like nearly any person educated in the United States, read Harper Lee’s To Kill a Mockingbird. Now, like many other readers out there, it’s back on my bedside table since Ms. Lee consented to publication of her other manuscript, Go Set a Watchman. I haven’t tackled it yet, but I’m eager to see what’s new from Scout and, of course, Atticus Finch.

The reviews I’ve read, however, let me know that I’m in for a surprise. Everyone recalls the heroic image Ms. Lee painted of Atticus in Mockingbird, where he was the brave and upright defender of a wrongly accused black man in the Jim Crow South. Gregory Peck personified Atticus in Mockingbird’s 1962 film rendition, which solidified Atticus in our minds as one of the better angels of our nature.

Well, it turns out that Atticus had (or grew) some warts. Watchman is set a few decades after Mockingbird. Scout is grown and Atticus has developed what sound like some pretty unsavory convictions. He is not the man who stood up for Tom Robinson; in Watchman, he stands in the way of integration and suffers Scout’s anger. In fact, Lee created this Atticus first and later authored Mockingbird after her publisher rejected Watchman. Some people are refusing to even read the book because of the ugly streak it draws across Atticus.

I won’t be one of those people.

Any employment lawyer worth his or her salt conducts an investigation and builds a case with the full history of the people involved. After all, what is an employment dispute if it is not the story of people and their personalities, their quirks, their strengths, and their weaknesses all coming together to produce (more often than not) an unfulfilling conclusion? Human resource professionals will see this from us in a number of different ways:

  • We’ll ask for the full story–and we’ll need it. If you get a lawsuit or Equal Employment Opportunity Commission (EEOC) charge, beware the lawyer who wants only the documents related to the termination. We want the full personnel file. We want all of the e-mails. We want the phone records. In short, we want everything that goes into the story.
  • We’ll want to talk to everyone–and we’ll do it at length. Sure, we enjoy your company (honestly, we do). But we also have a job to do, and that job requires us to know who you are and what makes you tick. Are you going to be tough on the stand or can folks get under your skin? Are there some things in your past that have changed, for better or worse? If so, let’s hear it.
  • We have to get the truth (or, to avoid an undergraduate philosophy seminar about “truth” breaking out in the comments, your honesty and candor). We can deal with the truth. If the truth is favorable, we’ll fight for a just end to your dispute. If the truth hurts, we can try to work something out to minimize the damage. However, we can’t deal with surprises. If we see your warts for the first time at your deposition or your trial, we can’t do much to solve the problem that late in the game.

So let me see this other side of Atticus. It may take him off a pedestal. It may shatter some illusions. Who knows, it may make the Mockingbird version of him seem even braver. Either way, none of us is beyond fault, and faults are an ingredient in every story, even those that have a favorable ending.

Workaholics: Drug testing

April 06, 2015 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

The Comedy Central show Workaholics is currently in its fifth season of depicting a fresh (and hilarious) human resources nightmare week after week. The show is about three recent college dropouts (Blake, Adam, and Anders) who also happen to be roommates and coworkers at a fictional telemarketing company, TelAmeriCorp. To give you an idea of just how mischievous these three can be, their drug dealer/turtle feeder is also a regular fixture on the show. iStock_000003274349_Large

Fittingly, the pilot episode deals with the trio attempting to pass a company-wide drug test after a day of partying. Their shenanigans include, for example, bribing a middle school boy with fireworks and ninja stars in exchange for clean urine. When this plan goes awry (I won’t give away the messy details), the group decides to accept their  fate and take the drug test. Blake, however, finds inspiration from the film Die Hard and decides to contaminate ALL the employees’ samples before escaping just in the nick of time. Shocked to find that all TelAmeriCorp employees failed the drug test, Alice Murphy (senior sales associate and boss to our oddly endearing–though often disgusting and misguided–trio) relieves the drug tester of his duties. Blake, Adam, and Anders celebrate only to learn that the company has planned a hair follicle test.

Hopefully, you don’t know anyone who has taken a page from the Workaholics playbook for handling a company drug test. As employers are well aware, illicit drug and alcohol abuse can be costly in the workplace, and drug-free workplace programs can be powerful tools for spreading prevention messages and intervening early with those who have begun to use drugs. In my Christmas-themed Elf post, I discussed some general recommendations for such programs. In addition, there are many important legal considerations for employers, including the following examples.

  • Defamation. Revealing drug testing results, or simply revealing the basis for a suspicion of drug use, could be grounds for a defamation claim. Policies should minimize this risk by strictly limiting access to drug test information on a “need to know” basis, limiting statements to objective fact, obtaining a release, requiring follow-up confirmation testing, safeguarding the specimen (especially from Die Hard fans like Blake), using a reliable lab, and using split samples so employees can have a sample tested at their own expense.
  • Disability Discrimination. Although the Americans with Disabilities Act (ADA) does not protect current illegal drug users, both alcoholism and drug addiction are protected disabilities.  Employee misconduct caused by addiction is not protected by the ADA, however.
  • Adverse Impact.  If an employer’s policy or practice, such as disciplining or terminating all employees testing positive for drugs, adversely affects the employment opportunities of a class of employees protected by statute (such as minorities), the policy or practice may be challenged as discriminatory.
  • Employee Privacy.  There is no federally created right of privacy for private-sector employees. The federal prohibitions against illegal searches and seizures apply only to governmental action. Many state constitutions or statutes, however, contain a right of privacy that may limit certain drug testing methods or the circumstances under which an employee may be subject to drug testing. Employers should check the laws of the states in which they have employees before implementing a drug testing policy.

Unfortunately for our Workaholics, many state laws make it unlawful for any person to attempt to defraud any lawfully administered test designed to detect the presence of chemical substances or controlled substances. For the time being, our trio has escaped to bring us more cringe-worthy office moments, laughs, and potential blog material. So tell me your favorite episode and why it should appear in an upcoming blog post.

Marky Mark and the Convicted Bunch

December 11, 2014 - by: David Kim 0 COMMENTS
David Kim

Just last week, Mark Wahlberg filed a formal petition with the Commonwealth of Massachusetts seeking a pardon for his 1988 criminal convictions for assault and battery by a dangerous weapon and possession of marijuana, amongst others. These crimes occurred well before Wahlberg became the public figure we all know from his work as an actor and film/television producer. Heck, these crimes happened before Wahlberg and his Funky Bunch were giving us all good vibrations and letting us know it’s about that time to bring forth the rhythm and the rhyme.shutterstock_96574432

There has been some blowback from certain individuals about Wahlberg’s petition, particularly and understandably from advocates for the victims of his crimes. From an employment perspective, however, what is interesting are the reasons that Wahlberg is seeking a pardon. In his petition, Wahlberg talks about the “formal recognition” an “official public redemption” would offer. But his petition also states that his criminal history prevents him from obtaining a concessionaire’s license in California and elsewhere, a likely troublesome issue in light of his “Wahlburgers” joint venture with his brothers (“Our family, our story, our burgers” – catchy isn’t it?). In addition, Wahlberg states that his criminal record precludes him from obtaining positions in law enforcement and that a pardon would help him continue his efforts to help at-risk individuals through his current involvement with law enforcement and other charitable ventures. While we like to think otherwise, there are some laws and regulations that even famous people cannot circumvent.

The use of an individual’s criminal background in employment practices has been a hot topic for years. Certain positions, such as law enforcement as alluded to by Wahlberg, cannot be obtained by law, regulation, or other rule by those with specific criminal histories. In addition, employers face a tricky balance in determining whether a criminal background should be assessed in making an adverse employment decision or refusal to hire. In 2012, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance about the use of an applicant’s or employee’s criminal background in hiring or employment-related decisions. The EEOC’s guidance provided that use of criminal histories could have a disparate impact certain minority groups and therefore be unlawful under Title VII of the Civil Rights Act of 1964 unless the employer conducts an assessment for the following factors before making an employment decision: (1) the nature and gravity of the offense, (2) the time that has passed since the offense, conduct, and/or completion of the sentence, and (3) the nature of the job held or sought. In addition, many states have their own requirements for when and how criminal background checks can be used.

While these issues have been around for a while, what has started to gain traction is local and state “Ban the Box” laws. These laws effectively ban the “box” in the application form that asks applicants to answer questions regarding their criminal history, putting further restrictions on when criminal inquiries can be made during the hiring process and what cannot be put in advertisements for available positions.

In New Jersey, Governor Chris Christie signed The Opportunity to Compete Act (known as Ban the Box Law) on August 11, 2014, and it is will become effective March 1, 2015. Briefly, the law prohibits employers from making criminal inquiries (either orally or through an application) until the first interview has been completed. The New Jersey law also prohibits job postings or advertisements that state the employer will not consider applicants who have been arrested or convicted of one or more crimes or offenses. Fortunately, the law doesn’t have a private cause of action, but imposes escalating civil penalties for each offense, and provides a voluntary disclosure exception to permit employers to inquire about criminal history if the applicant voluntarily discloses it during the application process or first interview.

Many other states including Massachusetts, Hawaii, Minnesota, Rhode Island, Delaware, and Illinois have their own version of the ban the box law, and a number of municipalities have passed ban the box ordinances, such as Philadelphia, Baltimore, San Francisco, and others. Employers should be familiar with the prohibitions in the applicable ban the box law in their jurisdiction as they can vary from state to state and municipality to municipality.

So a word of advice using terminology the great thespian Mark Wahlberg would appreciate. Employers are not Invincible and it doesn’t always happen to The Other Guys, it could happen to you. Although you may believe all this legislation comes from the out-of-touch minds of business model Transformers whose intellect would make them more appropriate residents of the Planet of the Apes, these laws are Happening and could result in The Perfect Storm of liability. So rather than Fear all this regulation, keep up to date on compliance measures and if you do so, your business will not be The Departed, but rather could be the Lone Survivor. And rather than spending sleepless nights worrying about liability and litigation costs, your evenings will be carefree Boogie Nights, where you can celebrate your business’s success and good fortune with the rest of your Entourage.