Welcome to my latest Monday Morning Briefing. Happy February, we finally cleared the longest month ever. Also, as a reminder, while I try to put these out every week, more often of late it’s been averaging every other week. I guess I should take it as flattery that if I miss a week, I get little remarks asking if I am sick, or I am traveling, or if something is wrong. No, the truth is, I am just inundating with inane litigation, the pace of which does not seem to be slowing. It is nice to be missed, though.
So busy as I have been, I have been trying to use my little downtime to catch up on some of the better films from 2022 in advance of the Oscars. One film that got some favorable reviews was “Emily the Criminal.” While I found the film relatively entertaining, I was annoyed by a few scenes, one that occurs right at the opening, that involve employers behaving badly. Their actions ran so afoul of employment law, that I actually decided to write about it here and use their awful conduct as a teaching moment, because I would have to think that YOU all would know so much better . Also, there will be a few spoiler alerts, although nothing that involves a big reveal, and indeed, the first scene I reference is used in the film’s trailer on Netflix.
EMILY’S PROSPECTIVE EMPLOYER FAILED TO COMPLY WITH STATE OR LOCAL “BAN THE BOX” OR BACKGROUND CHECK LAWS
The opening scenes of the film show poor Emily being blindsided in an interview by a prospective employer, confronting her about a prior criminal conviction that she clearly failed to disclose on her application. She does in fact confess that yes, she did have a past crime – a relatively minor DUI from a few years prior. But then, her interviewer gets a nasty grin and brings out a file. “But Emily, you didn’t get a DUI three years ago. You were convicted for aggravated assault in 2016 and spent three years in prison, didn’t you?” And she says, “You ran my background check? Well, then why play these games? You clearly knew all along.”
And that is when I realized that they were really in the land of la la movie making. Or maybe, I thought, they were just supposed to be in some backwater town where they don’t have laws like this – not every state has the Ban the Box and consumer protection laws we do (although well over 37 states and 150 cities have some version of Ban the Box legislation). But then the next scene shows Emily going to work in downtown Los Angeles. So, so much for that theory.
It wouldn’t be the first time that filmmakers get it wrong just because it makes a better story line, or maybe worse – they assume, like much of society, that most if not all employers ignore the law, don’t know the law, don’t care about the law, and violate the law even when they do know it. Let’s face it, employers are rarely portrayed well in films. We make great punching bags. Sorry, I digressed a bit. That could be the subject of an entire Briefing right there.
But back to my story. In movie world, Emily has gone storming out of this interview because her prospective employer with the shit eating grin just shamed her, and Emily believes her options for her life are next to nothing because of her past. But my real life Emily would have left that interview knowing her rights, as most Los Angeles employees do, gone to one of many, many plaintiff’s attorneys more than happy to help her. Because that employer messed up in a few ways.
First, both California AND Los Angeles have Ban the Box laws, the one in Los Angeles going into effect back in 2017, the one statewide 2018. What this means is that any questions regarding criminal history cannot be sought at all during the application process. IF an employer did want to seek that information, it must be done AFTER the hiring decision was made, which means that all such written questions must be struck from an employment application, pre-hire. Our firm did a pretty massive campaign to alert our clients to change their hiring practices and remove any questions on the applications.
Now this gets to the second issue raised in our little scenario with Emily. Emily’s prospective employer trotted out what appeared to be a background check result revealing a criminal conviction on Emily’s report. But Emily seemed very surprised he had this report. That was the most outrageous part of the scene. I actually yelled at the film at this part (I know, don’t watch movies with me). You really cannot obtain “surprise” background check reports on job applications. No reputable company will run them. There need to be disclosure, signed off by the employee. And if there is a report run, the applicant would receive a copy.
Here is the process in a nutshell. The background check must take place after a conditional offer to hire is made. California’s Fair Credit Reporting Act (FCRA) requires written permission, notice to the candidate of the background check and a copy of their rights be provided. There would be no way that an employer could conduct a “sneak” background check. Then, once conducted, if the background check comes back with something the employer considers questionable, before pulling the offer, the employer must provide the candidate with what’s called a “pre-adverse” action letter, explaining why the employer believes that whatever was found (here, an assault conviction that occurred nearly six years ago) would keep Emily from performing her office work today. Now Emily would have five days to respond to the pre-adverse action letter and explain her situation. Maybe she was fighting off an abusive step dad. Might that not color how this employer sees her, from something that happened so long ago (if the conviction was six years ago, that even might have been nine years ago, for example).
If the employer still wants to stand on its ground and rescind the offer, it sends a final adverse action letter, notifying Emily that she can challenge the employer’s decision, file a complaint, or file a claim with the State of California.
So ALL of that would have to be done in this case, and every case, when employers conduct background checks in California. Completely coincidentally, earlier in the same week, I got a call from an EPL broker I know asking me about what I knew about background check laws, because one of their insureds had received a complaint filed just on this issue – failing to comply with the Fair Credit Reporting Act regarding background checks. She said they had not seen too many of these. And I had made a note to write about that issue here.
So now I have. We have seen a smattering of these issues start to arise, so it was as good a time as any to raise it here. And clearly, we all need to be better than Emily’s prospective employer.
So first, make sure you have an updated employment application. I have caught a few recently for clients that still had that criminal conviction question in there, even though we harped on this urgently several years back. So go back and do a purge now if you haven’t. Make sure everyone involved in interviewing knows the drill.
In my experience, the good, reputable background check companies do have good forms and processes that they put in place, but if you want us to review any of them, let us know. You may have to write these pre-adverse and adverse action letters, and this is where I think a lot of employers fall down. There has to be some teeth in them. We do help our clients in that process, so reach out if necessary.
THERE IS NO FREE LUNCH OR FREE INTERNSHIP
Much later in the film, Emily finally gets an interview with her friend’s high end design firm, and the woman who runs it is known in the industry. She can finally get back onto the path she wants, stop doing these lowly food delivery gigs, and use the talent and skills she went to school to learn. So she finally meets with this woman, in this beautiful office, and this professional, talented woman actually seems to recognize Emily for her talent – finally. But when she starts to talk about a position, she talks about a several month “internship”. Emily cuts her off and says “wait, are you saying paid internship or unpaid?” And the owner sort of chuckles and says “well, the way this industry works, everyone has to prove themselves first .. ..”
And this is where I start yelling at my screen again. I know, this was the practice for years. Entertainment really was horrendous at this. And as I mentioned last year when I wrote about this, from time to time, I do have clients call and ask if they can’t have somebody’s kid come and “intern” over the summer “just to see how a law firm works,” or some such thing. But none of this is acceptable anymore. It never really was. It certainly is NOT in Emily’s situation, someone out of school for many years, who needs to work and get paid, even if at entry level. And come on, don’t we really all know better now?
Unless a internship is running in conjunction WITH A SCHOOL PROGRAM (college, university), for school credit, limited by a semester, overseen by someone at the college, it is not an “internship” and must be paid. I recently had a situation with two UCLA film students who were placed to work at a client’s for a special film project over the summer. THAT was an internship. We actually wrote up a few office policies for them, including a harassment policy, since interns can be subject to harassment.
Short of that kind of unique situation, people performing work at your direction, or on your premises, are not interns, volunteers, or independent contractors – they are EMPLOYEES and must be paid at least minimum wage.
Okay, well, I got all that out to you and before noon – which means my emails are jammed up like cars on the 405 at rush hour. It’s going to be another crazy busy week in the world of employment law, but if you have any questions on any of the above, Ban the Box, Fair Credit Reporting Act, Adverse Action Letters, Internship issues, Oscar predictions, you know where to find me.
Oh, and I am having my first live Super Bowl party in three years. If you are in the Laurel Canyon area, you are more than welcome to come say hello.
Keep breathing everyone, and enjoy that sunshine!
Beth
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