Are You Competent? What Labor and Employment Attorneys Need to Know about Criminal Law

As a labor and employment lawyer, you probably breathe a sigh of relief thinking you can avoid any hint of criminal defense practice. Well, I am here to tell you to think again! The Rules of Professional Conduct require members to act competently, either through diligence and skill or consulting with another lawyer. In my opinion, it is essential for labor and employment lawyers to have a basic understanding of prominent criminal issues that arise in the labor and employment context in order to represent clients competently.

“Ban the Box” Procedures

I am often asked if employers can question a job applicant about their criminal history. As of January 1, 2018, California’s “ban the box” legislation generally1 prohibits employers with five or more employees from inquiring into an applicant’s criminal history before making a conditional job offer. As a result, employers cannot inquire into criminal convictions on job applications nor during an interview if an offer has not been extended.
However, after a conditional job offer has been made, which can be contingent upon a background check, employers are permitted to ask about an applicant’s criminal conviction history. It is important to note that employers cannot consider criminal history that did not result in a conviction, such as an arrest without a conviction, pre- or post-trial diversion, or convictions that were sealed, dismissed, expunged or statutorily eradicated.

If an employer does find a criminal conviction after making a conditional job offer, the employer must first perform a multi-factored, individualized assessment of the applicant before the offer can be withdrawn. If the employer determines that the individualized assessment disqualifies the applicant from employment, the employer must notify the applicant in writing of the decision and provide a copy of the conviction information and other statutorily required information to the applicant.

Unfortunately for employers, the process does not end here. An applicant must also be given at least five business days to respond to the disqualification of employment. An employer is then required to consider any information an applicant submits in response to the disqualification before notifying the applicant of the final determination in writing.

Obviously, hiring an employee can be an onerous process and any misstep may lead to a complaint with an administrative agency and/or civil liability. As such, it is essential for lawyers to not only understand the hiring process but also have a basic understanding of the arrest and conviction process.

Post-Hiring Arrest & Conviction

An arrest or conviction post-hiring can be an equally tricky minefield. Frantic employees frequently contact me after an arrest or conviction to inquire as to whether they need to inform their employer about the arrest or conviction. Generally, I advise employees to research their contractual agreements, such as collective bargaining agreements, or internal rules and regulations as detailed in a handbook, to determine if the employer requires notification of an arrest or conviction. Most frequently, employers require notification of a conviction but not a mere arrest. If rules are silent, employees are certainly not required to report either an arrest or conviction, but it may be in their best interest to proactively do so.

It is also essential to advise employees that, although employers may require notification of a mere arrest, Labor Code § 432.7 prohibits any employer from using an arrest or detention that did not result in a conviction to determine any condition of employment. A condition of employment includes hiring, promotion, termination, or any apprenticeship training program or other training program leading to employment. Again, pre- or post-trial diversion programs or convictions that were sealed, dismissed, expunged, or statutorily eradicated do not constitute a conviction. Thus, although an employee may suffer an arrest, the employee cannot generally2 suffer adverse employment conditions as a result of the arrest.

However, all hope is not lost for employers who wish to inquire about the underlying circumstances of the arrest or conduct an investigation into the same. Labor Code § 432.7(a)(1) specifically permits an employer to ask an employee about an arrest for which the employee is out on bail or on their own recognizance pending trial. But, as stated above, no adverse employment decisions can be implemented for an arrest without a conviction.
Much like pre-employment criminality, post-employment criminality can be equally as onerous and, therefore, requires knowledge of both practice areas.

Crime Victims and Witnesses

Employers must also be mindful of employees who have been victims of crime or witnesses to a crime. Under Labor Code § 230, employers cannot discharge or discriminate or retaliate against an employee, including a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. Moreover, this law expands protections to victims of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief to help ensure their health, safety, or welfare or that of their children, including a temporary restraining order or permanent restraining order. Under this law, employers must also provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for their own safety while at work.
Under Labor Code § 230.1, employers with 25 or more employees may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or sexual assault for taking time off from work to seek medical attention for their injuries, to obtain services from a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, or to participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault.

It is noteworthy that both Labor Code §§ 230 and 230.1 specify significant consequences for violating witness or crime victim’s rights, including reinstatement, reimbursement of lost wages and benefits, and criminal liability for the employer.

Be Mindful of Potential Criminal Conduct

Whether you are representing an employer or an employee, it is incumbent on you to be mindful of potential criminal conduct by your client. Recently, I represented a business owner facing 18 felony charges and a host of other criminal and administrative investigations stemming from worker’s compensation fraud and misclassification of workers, among other things. Ultimately, the judge ordered a complete shuttering of the business and receivership over the client’s business and personal accounts. I believe that, had the client received competent legal advice from an experienced employment attorney from the outset of her business venture, she may not have lost her business – nor faced the possibility of state prison!

More common in my practice is uncovering potential criminal activity while representing an employee in what should be routine labor and employment matters, such as disciplinary proceedings or a separation agreement. For example, a recent client requested simple review of a separation agreement from a large pharmaceutical company. I soon realized that certain liability waivers and legal coverage clauses needed significant revisions because the client potentially violated state and federal crimes related to authoring prescriptions at the behest of the employer. Similarly, on numerous occasions, clients have informed me that they have recorded parties relevant to the case at issue without the other party’s consent, which is a potential violation of California’s Invasion of Privacy Act (Penal Code § 632), or unlawfully removed documents from a former employer to assist with legal representation.
Not only does uncovering potential criminal conduct dictate further client representation and strategy, but it can also create ethical dilemmas for us as lawyers. Accordingly, it is imperative to spot potential criminal culpability in order to avoid ethical violations and additional crimination activity.

Conclusion

Ultimately, labor and employment lawyers must have an understanding of some of the criminal issues that may arise in their practice to ensure competent representation or, at the very least, seek competent outside counsel for assistance.
Terry R. Leoni is the owner and founder of Leoni Law. Her practice focuses on administrative and licensing defense, criminal defense, and labor and employment law for public and private employers and employees. She can be reached at 925.699.1800 and [email protected]

[1] Certain employers and specific jobs are excluded from this prohibition, including a law enforcement position, a farm labor contractor, where a state or local agency is required to conduct a criminal conviction history background check.
[2] Certain employers and specific jobs are excluded from this prohibition, including a law enforcement position.

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