Posts Tagged ‘Pennsylvania Construction Attorney’

Help Me . . . Help You

Most people probably think that “Show me the money!” is the Jerry McGuire quote that best describes lawyers. But that’s not true. The quote that best describes lawyers is “help me . . . help you.” And there are many things that a client can do to help his or her lawyer in a litigation case. Here are some simple, but effective, considerations for a win-win situation. Doing these four things will make your case more efficient, and success more probable.

1. Preserve Evidence. Your lawyer can only defend and prosecute your case with evidence. Also, the failure to preserve evidence can be used against you. Thus, Rule #1: Preserve Evidence. Start by identifying all the potential locations of evidence: Paper format; electronic devices; servers; cloud/online storage; and third party sources. These should be saved to ensure that evidence is preserved. After identifying the sources of documents, help your lawyer by culling and gathering the documents. It is also useful to specifically identify the documents that you think are most relevant to the case. Likewise, identify all potential witnesses and provide your attorney with the last known contact information.

2. Know you’re objective, and what you’re willing to settle for.  At the beginning of the lawsuit, clarify your objectives. Consider the best-case outcomes; consider the worst-case outcomes. And consider the outcomes that you want to achieve. It is also best to consider what you’re willing to concede (or spend), in order to achieve the desired outcome.

3. Understand Risks. Nothing is certain. Nothing is promised. Nothing is guaranteed. Litigation is unpredictable. At least one major fact or witness will turn out completely different than anticipated. The law can be murky, too. An analogy: Imagine that you own a 2007 Honda CRV with a book value of $10,000. Now, imagine that you park the 2007 Honda CRV on the street with a “For Sale Best Offer” sign. What type of offer might you get? Would it matter if your CRV is sold in Lancaster, or Camp Hill, or Gettysburg, or West Chester? The book value might be $10,000; but the reality is that it will be sold on a specific day, at a specific location, with a specific buyer. You might get $10,000 exactly, but probably not. Likewise, the legal books might say that your dispute should be determined one way or another. But the reality is that it will depend on the specific facts of your case, with a specific judge or jury, in a specific location. Just like the sale of the CRV – litigation is not an exact formula.

4. Understand Negotiated Settlement. To avoid unpredictability, and to achieve finality, settlements are wise. But, to get something, you need to give something.

What’s Happening Now . . .

7.5 % Increase

  • Through July 2016, spending on private construction is up 7.5%, compared to 2015.
  • Spending on public construction is up 0.2%.
  • Total construction spending is up 5.6%.
  • Residential construction spending is up 6.5%.
  • Non-residential private construction spending is up 5.1%.

Source: U.S. Census Bureau, July 2016 Construction at $1,153.2 Billion Annual Rate (Sep. 1, 2016).

This article is authored by attorney Jeffrey C. Bright and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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OSHA Gets a Bigger Stick

On August 2, 2016, OSHA’s maximum penalties will increase by 78%. The penalty hike is the result of an interim final rule issued by the U.S. Department of Labor. The increase is intended to bring OSHA penalties, which have not been raised since 1990, in line with inflation.

Under the rule, serious and other than serious violations will now be capped at $12,471 per violation, rather than $7,000. Failure to abate violations, which are calculated on a per day basis, will receive an identical increase—$7,000 to $12,471. The cap on substantial penalties for repeated and willful violations increases from $70,000 per violation to $124,709.

These changes become effective for all citations beginning August 2, 2016. No matter when the violation occurred or when the investigation began, all OSHA penalties after August 1, 2016 will be calculated according to these new maximums.

OSHA’s 2015 Field Operations Manual remains the latest guidance as to how it determines an appropriate fine for violations. The primary consideration in determining penalty amounts is the “gravity of the violation,” which is determined by examining the severity of the injury that could have resulted from a violation, along with the probability that an injury could have occurred. It also allows for reductions in penalties depending on the employer’s size, whether the employer lacks a history of violations, and whether the employer was acting in good faith (i.e., wasn’t purposefully breaking the rules and had an effective safety and health management system in place).

Of course, the cheapest OSHA fine is the one never issued. Having a safety program in place and making sure that employees receive regular training on best safety practices is advisable. Companies should strive to create a culture in which safety always comes first—the increase in OSHA penalties is just one more reason why.

Violation Type Old Max Penalty New Max After August 1
Other than Serious $7,000 $12,471
Serious $7,000 $12,471
Failure to Abate $7,000 a day $12,471 a day
Repeat $70,000 $124,709
Willful $70,000 $124,709

What’s Happening Now . . .

  • The U.S. Economy grew at 1.2% for the second quarter of 2016.
  • Growth hasn’t topped 2% since the second quarter of 2015.
  • The second estimate for the second quarter will be released August 26, 2016.
  • In 2013 and 2014, quarterly growth exceeded 2% in 6 of 8 quarters.

Source: BEA, U.S. Dept. of Commerce, News Release, Nat. Income and Product Accounts  (July 29, 2016).

Newsletter written by Jeffrey C. Bright, Esq., an attorney licensed in Pennsylvania and Maryland.  For more information, contact an attorney at Harmon & Davies, P.C.

This Newsletter is not legal advice.  Unlike this Newsletter, legal advice is specifically tailored to the facts, law, and objectives unique to each circumstance.

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PA Workplace Misclassification Act

In March 2016 the Pennsylvania Department of Labor and Industry produced a white paper report on the “Administration and Enforcement of the Construction Workplace Misclassification Act in 2015.” Under the Act, the DLI investigates and penalizes construction companies that misclassify employees as independent contractors.

Here’s a quick snapshot from the Report:

pic for 4-29-16 blog

But in 2013, under similar circumstances, the Pennsylvania Commonwealth Court held that the general contractor’s payments to the subcontractor did not afford protection, and the Prompt Payment Act did not shield the contractor and the surety from liability. Berks Products Corp. v. Arch Ins. Co., 72 A.3d 315.

Those are the cases of Workplace Misclassification that the Bureau of Labor Law Compliance has investigated in the past five years. Notably, there were more investigations in 2015 than the previous four years combined. Also, the investigations netted $217,450 in penalties, which is a 1,612% increase from the 2014 penalty amount. In fact, the Bureau only collected $12,700 in penalties in 2014. Point being, DLI is emphasizing the enforcement of this Act, and all construction companies should take a very close look at how they supply manpower to their projects.

The Workplace Misclassification Act applies to all construction companies working on all types of projects—public, private, residential, or commercial. The Act sets forth a checklist of considerations that are scrutinized when determining if a laborer on a project is actually an independent contractor. If the laborer is misclassified as an independent contractor—when in fact he is really an employee—DLI will levy a fine. In some instances, DLI has the authority to seek criminal prosecutions.

To comply with the Act, every independent contractor must have a written contract. Further, every laborer should be analyzed with consideration of the numerous other requirements under the Act. DLI generally receives its leads from (1) complaints filed by laborers; (2) findings made during construction site visits; and (3) referrals from other government agencies, particularly the Office of Unemployment Compensation Tax Services. To avoid penalties, it is best to review your laborers and seek legal advice as necessary.

What’s Happening Now . . .

11.2 % Increase

  • Increase in construction spending for first two months of year, comparing 2015 to 2016.
  • Construction spending for January & February 2015 was $141.3 billion.
  • Construction spending for January & February 2016 was $157.1 billion.

Source: U.S. Census Bureau News, February 2016 Construction at $1,144.0 Billion Annual Rate, U.S. Dept. of Commerce (Apr. 1, 2016).

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.


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A Construction Law Newsletter Provided by Harmon & Davies, P.C.

Legal Punchlist
What’s Happening Now . . .


·         Increase in construction spending, year-to-date.

·         The first 10 months of 2015 have seen $888.1 billion in construction spending.

·         The first 10 months of 2014 were $802.3 billion.

Source: U.S. Census Bureau News, October 2015 Construction at $1,107.4 Billion Annual Rate, U.S. Dept. of Commerce (Dec. 1, 2015).

Mediation, Arbitration, and Litigation

Construction contracts often reference either mediation, arbitration, or litigation. But what’s the difference between these three?

Mediation is the use of a third-party to conduct an informal meeting for the purpose of resolving the dispute. There is no judge or jury. It is merely a mechanism to get all the parties in the same room.

Typically, but not always, the mediator is selected and hired by the parties to lead the settlement discussions. It’s also common for mediation conferences to start with all parties in a single room, discussing their grievances and desired outcomes. After the initial group discussion, it is common for each party to relocate to separate rooms, and the mediator will meet with each party individually, to facilitate points for discussion. Generally, a mediator is hoping to bring each party towards middle ground in search of a negotiated resolution.


It is important to ensure that mediation is conducted under the confines of 42 Pa.C.S.A. § 5949. This statute provides that the communications made in mediation are inadmissible as evidence in a court of law. This protection allows the parties to speak freely, in an effort to resolve the dispute. Settlement discussions are also inadmissible in a court of law, under Pa.R.E. 408. Best practice is for all parties to agree in advance, as a ground-rule of mediation, as to whether the statements are fair game for use in court at a later point.

Mediation does not result in a binding decision. It is merely an attempt to facilitate a negotiated settlement. Arbitration, on the other hand, is a formal procedure that results in a binding decision. Arbitration does not use a judge or jury. Instead, an arbitrator presides over the arbitration and acts as the “judge and factfinder.” Arbitrators are usually practicing attorneys who likely have a concentration or level of expertise in the specific area of applicable law. Arbitration is less formal than a trial in court; it is often held in a private office, or a conference room. Although less formal than a trial, the litigants must still present testimony and evidence, in a similar manner as if presenting their case in court.

Sometimes, people use the terms “binding” or “non-binding” arbitration. These are misnomers. By definition, all arbitration is binding. If it is “non-binding arbitration” then, it is better defined as mediation. When agreeing to participate in mediation or arbitration, make sure that it is fully understood and agreed that the process is either binding or non-binding. The best way to make this clear is to use the proper terms: mediation is a non-binding; arbitration results in a binding decision. This should be clarified in writing, between the parties, as a ground-rule for participating in the process.

Litigation, in contrast, is the use of the court process. At the time of entering the contract, and at the time of any dispute arising, it is important to know whether the contract requires mediation, arbitration, or litigation.

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.

Employment          Construction           Business

2306 Columbia Ave. | Lancaster, PA 17603

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Legal Punchlist Newsletter

Legal Punchlist Newsletter (Oct. 2015)




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Earlier this year, the Northern District of Illinois held that there was nothing discriminatory about a company ordering a black employee to submit to a single drug test following a workplace incident where the employee threw coffee on another employee and exhibited abnormal speech, screaming, yelling, and profanity.  In the matter of Berry v. ArcelorMittal USA LLC, the court noted that the company’s drug policy stated that “any employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness for work.”  The company’s drug testing policy was worded in such a manner that it left the decision of whether to order the employee to submit to a drug test to the supervisor’s perception of the employee’s behavior.  Thus, the wording of the drug testing policy helped the employer defeat the plaintiff’s argument that his white co-worker, with whom he had engaged in a conflict on the date in question, should have also been ordered to submit to a drug test because the court found that the supervisor credibly testified that he perceived  the plaintiff, and not the co-worker, as behaving erratically and therefore justifiably ordered only the plaintiff to be drug tested. 

This case serves as a good example of why it is important for companies, and especially construction companies, to have well written drug testing policies.    The attorneys at Harmon & Davies are available to assist employers with drafting their drug policies. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Construction, Drug and Alcohol Testing and Policies | No Comments »

For those of you wondering, it is not okay to push a union official down the stairs of your jobsite trailer, which is precisely what a superintendent working for an Arizona building contractor did.  In the matter of Norquay Construction, Inc., the National Labor Relations Board held that such an assault interfered with the protection afforded to unions under the National Labor Relations Act (“NLRA”), which protection covers action taken in furtherance of enforcing or protecting area labor rights.  As a result of such interference, the National Labor Relations Board held the contractor liable to the assaulted union agent for lost pay and medical expenses resulting from the superintendent’s assault. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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The Pennsylvania Field Guide for Construction Contract Review

There is no substitute for having a lawyer review your contract.  In fact, I encourage all contractors to have lawyers review their construction contracts.  However, I’ve practiced construction law long enough to know that doesn’t always happen.  Understanding this reality, I’ve prepared a general field guide of sorts to assist contractors with reviewing construction contracts when they “go it alone” against my recommendation.  I also note that this guide does not touch upon every contractual issue.  For example, I don’t elaborate upon insurance requirements or indemnification provisions, both of which require close review.

Here’s what contractors should look for:

 Scope of Work-Get the Wrinkles Ironed Out:   Examine whether the scope of work in your proposal and the scope of work as defined in the contract match-up.  Typically, the scope of work in the contract will be broader.  For example, the scope of work in the contract may require the contractor to perform the work set forth in the proposal and any necessary work “implied” by the drawings. If there is a conflict between what is set forth in your proposal and the scope of work in the contract, seek to eliminate the conflict.  Otherwise, the discrepancy could come back to haunt you.

Flow Down or Pass Through Clauses-Don’t Ignore ThisContractors/subcontractors need to understand what flow down/pass through clauses are.  Such clauses incorporate the terms of Owner/General Contractor agreement and bind the subcontractor to the general contractor to the same terms that the general contractor is bound to the owner.  Sometimes a prime contract requires general contractors to insert such a clause into all subcontracts.  Wherever such a clause appears, it is important for subcontractors to review the prime contract in addition to the subcontract to fully understand the terms that the subcontractor is agreeing to.  If there are conflicts between the prime contract and the subcontract, contractors need to seek clarity regarding which provisions control.  By failing to review the general contract, a subcontractor risks agreeing to terms that it knows nothing about, including termination clauses, claims processing clauses, indemnification clauses, and dispute resolution clauses.  I routinely advise my clients to insist on receiving a copy of the general contract and reviewing it before signing any subcontract that contains a flow down/pass through clause.

Pay-if Paid Clauses-We’re Talking Money Out of Your PocketSubcontractors should learn to spot pay-if-paid clauses under which a subcontractor bears the risk of nonpayment and to know the difference between this clause and a pay-when-paid clause, which is merely a timing mechanism.  Pay-when-paid clauses do not condition payments to a subcontractor on the contractor’s receipt of payments from the owner while pay-if-paid clauses make the contractor’s receipt of payment from the owner a strict condition precedent to the subcontractor receiving payment.  In other words, pay-if-paid clauses shift the risk of nonpayment from the contractor to the subcontractor.  If words such as “condition,” “if and only if,” or “unless and until” are used to describe when payment to a subcontractor is due then chances are it’s a pay-if-paid clause.  If you are concerned that the subcontract could be interpreted as a pay-if-paid clause, I strongly recommend consulting with a lawyer, because the analysis is a bit more complex than I’ve described.  However, if you are seeing the words described above, that should serve as a warning that the contract may contain a pay-if-paid clause. 

While I typically advise clients against agreeing to payment terms that use the words “condition,” “if and only if,” or “unless and until,” the reality is that many of my clients frequently agree to these terms because they don’t have the bargaining power to insist on their removal and they want or need the work.  In such circumstances, subcontractors can lessen the potential impact of a pay-if-paid clause by adding a pay-if-paid clause into their subcontracts.  It’s a pass-the-buck tactic, and I’ve actually had clients object to doing this out of a sense of fairness, but this is the age we live in.

No Damages for Delay Clauses-Typically EnforceableTypically such clauses state that time shall be the only compensation for delay.  Although such clauses are typically enforced, Pennsylvania law refuses to enforce such clauses where: (1) there is an affirmative or positive interference by the owner with the contractor’s work; or (2) there is a failure on the part of the owner to act on some essential manner necessary to the prosecution of the work. 

Change Order Clauses-The Stumbling Block of Many ContractorsIf a contractor does not follow the process to perfect and preserve its claim in accordance with the contract, the contractor may have a difficult time receiving compensation.  Therefore it is vital that the contractor carefully examine and understand the contractual change order process. 

One common issue that arises with respect to change orders is that the contract specifies that only a certain person or persons can approve change orders.  During the project, contractors frequently receive approval for a change order from a field person, but not the person specified in the contract.  Having received such approval many contractors/subcontractors complete the change order work only to have the owner/contractor refuse to pay for the change order work because the change order work was technically not approved by the individual specified in the contract.  While we highly encourage our subcontractors to strictly follow the contractual change order process, our clients tell us that sometimes it is not feasible to engage in such a process because doing so will delay or disrupt the work.  In such cases, we encourage our clients to document change order approvals as much as possible, especially via emails.  If you get in a jam like this, you might want to consult with your attorney about what the email should say because I would word emails differently depending on the circumstances.

If a dispute arises, having a string of emails showing how the change orders arose, is better than relying solely upon your word that someone working for the owner/contractor orally approved the change order.  Again, if that happened, send an email confirming it, e.g., “per the [insert person’s name]’s direction, Company XYZ was directed to do [insert extra work], which work is outside the scope of work of Company XYZ’s contract.  Accordingly, such work constitutes change order work for which a Change Order will be submitted.”

Furthermore, don’t jeopardize your chances of being compensated for change order work by failing to give the required written notification for claims for compensation within the certain time period specified in the contract.  Failure to provide such notice can result in a waiver of your claim.   Finally, know how claims must be submitted and include all required information in your claims submissions.

Differing Site Conditions/Changed Conditions Clause-Exploring the Great Unknown:    This clause comes into play when a contractor discovers site conditions that were neither known, anticipated, nor disclosed to the contractor.  Typically, there are two types of changed conditions:  (1) Type I conditions are conditions that materially differ from conditions that were disclosed to the contractor in the contract documents at the time of bidding; and (2) Type 2 are the conditions that are “unusual, unknown, and unanticipated.” 

Keep in mind that if the contract also contains a site investigation clause, in order for the contractor to benefit from the differing site conditions clause to the maximum extent possible, the contractor should conduct a reasonable investigation of the site and review all relevant data.

Watch out for contracts that attempt to shift the risk of bearing the cost of differing conditions to the contractor by requiring the contractor to disclaim any claim for extras related to a differing site condition and watch out for contracts that don’t address differing site conditions.

Dispute Resolution Clauses-Who Is the RefereeKnow what is required.  For example, do you have to seek mediation before arbitration or litigation?  Know where you are allowed to litigate or arbitrate.  Also, pay attention to whether the owner/contractor has the sole discretion to elect to pursue the matter through arbitration or litigation. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Earlier this year OSHA fined two construction companies over $115,000 following a crane accident that killed one worker and seriously injured another.  The construction companies were working on a bridge when the decedent was struck by the boom of a crane that overturned.  Another worker was seriously injured when he was ejected from the crane cab.

OSHA fined the construction company in charge of operating the crane $105,000 for one willful violation and five serious violations for allegedly failing to train workers regarding their roles and on ways to use signaling methods.  The company also allegedly failed to attach the crane to the proper barge and failed to implement or meet minimum requirements of a critical lift plan, including designating a lift conductor and organizing lift preparation meetings.

OSHA had inspected the company five times since 2009 and following the latest incident OSHA was placing the company on the Severe Violator Enforcement Program, which focuses on employers with willful, repeat, or failure-to-abate violations.

The other company provided manpower for erecting girders on the project.  It was fined $13,200 for four serious violations including:  failing to develop an effective safety program, faling to conduct competent and qualified trainand failing to comply with crane operating standards.

The construction law attorneys at Harmon & Davies are here to assist contractors with developing effective safety programs and with contesting OSHA citations.  Above all, we care about our construction clients and we can’t emphasize enough how important it is for them to have the proper safety procedures in place to protect their workforce.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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At the beginning of February 2013, the Labor Department’s Office of Federal Contract Compliance Programs (“OFCC”) issued Directive 306 warning federal contractors to carefully consider their nondiscrimination obligations before adopting hiring practices that exclude applicants based on their criminal history records.  In other words, federal contractors and subcontractors need to be cautious about how they use criminal history records.

What Employers Should Already Know:  Employers should know that Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national, origin, religion, or sex.  If you are a federal contractor or subcontractor you should also know that Executive Order 11246, the enforcement of which is overseen by the OFCCP, prohibits federal contractors from discriminating in employment decisions based on race, color, national origin, religion, or sex.  This means that in hiring decisions, federal contractors cannot engage in disparate treatment (meaning intentionally treating members of protected groups differently) or disparate impact (meaning using policies and practices that are neutral on their face, but have a disproportionate impact on members of protected groups and are not job-related and consistent with business necessity).

What Some Employers Might Not Know:  Some employers might be thinking: “I have every right to exclude applicants with criminal records from working for me.”  At some level that reasoning seems logical, but the employer would be wrong, at least in part.   To be clear, federal laws (emphasis is on federal) do not prohibit an employer from requiring applicants to provide information about arrests, convictions or incarceration.  Moreover, under applicable federal laws, a criminal history record alone does not constitute a protected class.  However, employers may not treat people with the same criminal records differently because of their race, national origin or another protected characteristic.

To be clear, merely having a criminal history record does not place someone into a protected group under applicable federal laws.  However, federal antidiscrimination laws may be implicated when criminal records are considered in the hiring process.  Indeed, due to racial and ethnic disparities in our criminal justice system, job postings containing blanket exclusions of anyone with any kind of conviction or arrest record may be in violation of federal law.

How Employers Get Themselves Into Trouble: 

Scenario No. 1:  The Disparate Treatment Scenario

A closely held private corporation operating as a federal contractor, owned and operated by a family of the Christian faith, runs criminal background checks on all its applicants.  Per the contractor’s hiring policy, they will not hire anyone convicted of a DUI within the past three years as a truck driver for their shipping operations.  However, the family that owns the company consistently waives this requirement when the applicant a member of their church, but not for members of other religious organizations.

How this is wrong:  The employer is treating people with the same criminal records, i.e., DUIs, differently based on their religious affiliation.

Scenario No. 2:  The Disparate Impact Scenario

A federal contractor has a hiring policy that prohibits anyone who was ever convicted of any crime from being hired.

Why this is wrong:  This blanket prohibition against hiring anyone with a conviction is going to have a greater impact on blacks and Hispanics who have higher conviction rates than other races.

Precautions that Employers Should Take:  First, the OFCCP recommends that contractors, as a general rule, refrain from inquiring about convictions on job applications and that when contractors make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.

Arrest Records:  With respect to arrest records, the OFCCP recommends that employers allow an applicant to explain the circumstances of the arrest to determine whether the conduct underlying the arrest justifies an adverse employment action.  Keep in mind that the arrest does not necessarily mean that the person committed a crime and even if they did, the crime might not have any correlation to the job position.

Ensure that the Criminal Conduct is Job Related and Consistent with Business Necessity:  Exclusions of an applicant based on the applicant’s criminal history report should only occur where the applicant’s criminal conduct is job related and consistent with business necessity.  For example, if the job is a preschool teacher, eliminating the candidate because he or she was convicted for child molestation two years ago appears sufficiently job related and consistent with business necessity.  However, if the job is a computer programmer, eliminating the candidate because he or she was convicted of driving without a license 10 years ago does not appear job related or consistent with business necessity.

Be Prepared to Defend Your Position:  To establish that a criminal conduct exclusion that has an adverse impact is job related and consistent with business necessity, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risk inherent in the duties of a particular situation.  The EEOC has described two circumstances where it believes employers will consistently meet the “job related and consistent business necessity” defense.  The first circumstance is where the employer validates the criminal conduct exclusion for the position in question in accordance with the Uniform Guidelines on Employee Selection Procedures (“UGESP”).  For some employers this can be a costly process.  Therefore, if the employer does not go through the validation process in accordance with the UGESP, the EEOC has outlined three factors that the employer should use as a starting point for analyzing how specific criminal conduct may be linked to particular positions.  The three factors that are relevant to whether a criminal conduct exclusion is “job related and consistent with business necessity” are as follows:

  1.  Consider the nature and gravity of the offense or conduct.  This is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position.
  2. Consider the time that has passed since the offense, conduct and/or completion of the sentence:  Employer policies typically specify the duration of the criminal conduct exclusion.  The amount of time that has passed is probative of the risk the applicant poses in the position in question.  Relevant and available information to make this assessment includes studies demonstrating how much the risk of recidivism declines over a specified time.  In other words, the employer should not just set the duration arbitrarily.  The employer needs to research this.  If the employer is excluding applicants with convictions within the last 7 years, the employer should be prepared to explain what is different about an applicant who was convicted 5 years ago from one that was convicted 7 years ago.  Otherwise the duration might appear arbitrary.
  3. The nature of the job sought or held:  It is important to identify the particular jobs subject to the exclusion.  Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it bears a demonstratable relationship to successful performance of the jobs for which it was used.

Conduct Individualized Assessments:  The OFCCP advocates for individualized assessments rather than blanket prohibitions based on criminal history reports.

Confidentiality:  Employers should always be mindful of the confidential nature of applicants’ and employees’ criminal records and should use such information only for its intended purposes.

Check State and Local Laws/Regulations:  It is also important for employers to know that various states and cities  have enacted additional laws and regulations governing employer’s use of criminal records, so it is always important for employers to be familiar with the state and local laws of the jurisdiction where they are operating.  For example, in California, employers cannot ask applicants about certain marijuana convictions.

In closing, although some employers may recoil at the thought of hiring an employee with a criminal history, by having a closed mind the employer might be missing out.  For example, in researching this blog I did a Google search of famous people with criminal records.  These are three of the names that I found:  Nelson Mandela, Johnny Carson, and Bill Gates.  Now just think about what great talent an employer with a blanket criminal record exclusion would be missing out on.

The attorneys at Harmon & Davies are dedicated to serving the Labor and Employment Law needs of employers.  We are here to assist employers with crafting hiring policies that include criminal history policies.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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