Consideration of Criminal Records in the Hiring Process

          Criminal background checks have always been somewhat of a controversial tool for reaching hiring decisions.  The federal law that prohibits job discrimination, Title VII of the Civil Rights Act of 1964, protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Title VII protects employees and applicants from policies or practices that disproportionately screen out members of a particular race, ethnicity, or other protected class.  Title VII does not bar criminal background checks, but it does govern how such information may be used by an employer.

          The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII.  In April 2012, the EEOC issued updated guidance (Guidance) for employers, explaining how they can screen out applicants who might be dangerous or pose a safety risk without engaging in discrimination.[1]  The concern about criminal background checks is based on data showing that arrest and incarceration rates are much higher for African Americans and Latinos.[2]  The EEOC makes clear that employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision. [3]

The EEOC explains that in deciding whether a particular offense should disqualify an applicant or employee, employers must consider:

·         the nature and gravity of the criminal offense or conduct

·         how much time has passed since the offense or sentence, and

·         the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

According to the EEOC, employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Protected persons who are denied employment because of a criminal background check may have viable Title VII claims where:

– Denial of employment was based solely on an arrest;

– The employer used a blanket exclusion that screened out all persons who have ever been convicted of a crime;

– The exclusion did not take into account the nature of the crime, the amount of time elapsed since it occurred, and the nature of the job;

– The employer did not provide an opportunity for the excluded person to explain a criminal matter;

– The employer has a reputation for excluding persons with criminal backgrounds; or

– The employer has expressed stereotypical views concerning the criminality of certain racial or ethnic groups.

The EEOC identified the following "Best Practices" that employers can take when considering arrest and conviction records in making employment decisions:

– Develop written policies and procedures for screening applicants and employees regarding criminal conduct;

– Train managers, hiring officials, and decision makers regarding implementation of the policies and procedures;

– Limit inquiries regarding criminal records to those that are "job related for the position in question and consistent with business necessity"; and

– Keep information regarding applicant and employee criminal records confidential.

Of note is that Virginia law protects applicants with criminal records that have been expunged.[4]  An employer may not ask applicants to disclose expunged criminal charges, whether on an application form, in an interview, or in another forum.  An applicant need not refer to any expunged charges if asked about his or her criminal record.

            EEOC’s Guidance is not binding law, but it sets the standard that the EEOC will use when evaluating discrimination complaints based on the use of criminal history information in employment decision.  However, courts may use it in their analysis of these issues and employers need to act carefully.   Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of RRBMDK’s employment attorneys if you have any questions about the recent EEOC Guidance or other aspects of your hiring practices.

[1] EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Issued April 25, 2012.  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#sdendnote128anc

[2] See Pew Ctr. on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653(“Simply stated, incarceration in America is concentrated among African American men. While 1 in every 87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is 1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old men without a high school diploma or GED: 1 in 8 White males in this demographic group is incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. Pew Ctr. on the States, supra, at 8, Figure 2.
[3] 42 U.S.C. §§ 2000e-2(k)(1)(A)(i), (ii), C.
[4] Va. Code Ann. § 19.2-392.4

Characteristics of At-Will Employment

     The vast majority of employment relationships in place today are at-will.  That means that there is no contract specifically governing the employment relationship between the employer and a given individual employee.   At-will employment generally has the following characteristics:

•  Unspecified duration.  At-will employment is characterized by an undefined period into the future, but without a commitment for a certain minimum period.  The vast majority of employer-employee relationships are at-will.

      For example, a small business retail establishment who hires someone to work as a sales associate either full or part-time is typically an at-will employee.  Generally, employers advertise their staffing needs, prospective employees apply, and then the employer hires one or more applicants.  Often the new employee is provided employment forms, but not typically a written contract binding them to service for a certain period of time. 

• Can be terminated without cause.  Generally the employment relationship remains intact so long as the relationship remains mutually beneficial to both employee and employer.    While no cause is required to terminate the at-will employment relationship, causal explanations for terminations related to financial hardships or corporate mergers are common.  Termination for cause might include, stealing, lying, failing a drug or alcohol test, falsifying records, insubordination, and deliberately violating company policy.   

When an employee finds himself out of a job, he or she often struggles to understand why.  However, the law does not require employers to provide a cause, or explanation, for the termination in an at-will employment relationship. 

•  Can be terminated without notice.   Employees customarily give current employers a period of notice before commencing employment with a new employer, particularly if the new employer is in the same field as the current employer.  However, this notice period is not required in at-will employment relationship and is done merely as a courtesy to the old employer.  

           So which employees are not at-will employees?  Employees covered by a written contract, such as a union agreement or other contract, are not at-will employees.  Employment contracts are common for temporary employees and high level executives among other individuals.  It is also possible to have an implied contract based on your employer’s words or actions.

      

           In addition, under the laws of Virginia (and many other jurisdictions, including D.C.) the discharge of an employee for exercising rights guaranteed by public policy (as embodied in a specific statute) may give rise to an action for wrongful termination.

            While employers have wide latitude to dismiss at-will employees without notice or cause, the law does not permit discrimination, including terminations, based on race, color, national origin, gender, religion, age, or disability.  If you suspect you have been wrongfully terminated, it is best to talk to an attorney about your particular situation.   By first talking with any of the RRBMDK attorneys that handle employment matters, you’ll be able to make an informed decision about your situation and whether legal action makes sense.

Structure of Mediation

If you can persuade the adversaries in a difficult dispute to agree on the structure for mediating the dispute, you may be able to avoid having to pay thousands of dollars in legal fees to resolve the same issues by litigation. As stated, the structure of the mediation is critical.

                                                                                                                       

The parties must agree on a Chair/Moderator/Facilitator who will chair the discussion(s) and

1. Obtain the express agreement of all of the participants to comply with a mutually acceptable set of Behavioral Rules for a Successful Discussion (See the checklist below) established by the Facilitator and the participants. These must be finalized before any discussions begin and everyone must agree that the Facilitator has the absolute authority to manage the discussion and apply the Rules;

2. Help to identify the ultimate common goal(s) of the parties; For example, “To determine whether or not the parties are willing to work together to resolve any legitimate issues between them that would prevent going forward with the construction and sale of the subject property”.

3. Identify the issue(s) that each party wishes to discuss and the method for determining the order in which each issue will be taken up, and

4. Manage the discussion of each issue to ensure that:
1. the participants comply with the adopted Rules, and
2. the discussions focus on one issue at a time in the order agreed, and
3. the discussions move along as quickly and courteously as possible, and
4. no one filibusters or repeats arguments.

Sample checklist of Behavioral Rules for Successful Discussions:

1. No raised voices.
2. No profanity, curse words, etc.
3. No threats.
4. No disparaging, insulting, demeaning remarks or accusations.
5. Always speak and act in a courteous and professional manner toward everyone.
6. Let go of the past; let go of blaming; begin the discussions with a new, clean sheet of paper.
7. Really listen to the person who is speaking and don’t interrupt the speaker.
8. Ask questions to make sure that you understand what the speaker is saying and his/her point of view.
9. Whether speaking or listening, try to distinguish facts from beliefs, conclusions, feelings and perceptions that may not be supported by facts.
10. Try to discuss facts that can be independently established as correct or incorrect.
11. Eliminate adverbs and avoid adjectives that send meta-messages.
12. Beware of non-verbal communications: raised voice; intensity; tone; inflection; body language; facial expression.
13. Most important of all, give everyone a full and fair opportunity to be completely heard with respect to all aspects of their concerns, issues, positions, points of view, etc.

If adversaries are willing to discuss their differences courteously and in good faith, in the manner described above, there should be few disputes that could not be resolved without litigation.  

  

 - Beau Brincefield

What is Probate?

Probate is the official proving and recording of a will as the authentic and valid last will and testament of the deceased.  The will should be probated where the decedent (deceased individual) resided at the time of his or her death.  If the decedent passed away in a nursing home or similar institution, then the individual’s residence would be where he or she resided before the nursing home. 

Probate is necessary when the decedent has solely-held assets, which are assets that were not jointly owned or already designated to a beneficiary.  Assets involved in probate include real property and personal property such as bank accounts, cars, stocks and bonds, and personal belongings.  Life insurance and retirement accounts are usually not included in probate because they have named beneficiaries.

            What to bring to the Probate appointment at the Courthouse:

·         The original Will;

·         A certified copy of the death certificate;

·         If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses;

·         The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate;

·         The names, ages, and addresses of the heirs at law.  The heirs at law are not necessarily the beneficiaries of the Will.  Heirs at law are determined by kinship to the deceased;

·         Cash or check to pay fees.  Visa and Mastercard are also accepted.  There is a processing fee for each credit card transaction;

·         Valid photo identification.

      Do you need an attorney?  Not necessarily, but you should talk to an attorney about your particular situation.  You may need just a small amount of legal assistance or you may need a significant amount of  legal assistance.  It’s also possible you may be able to handle probate entirely on your own, but by first talking with any of the RRBMDK attorneys that handle will and estate matters, you’ll be able to make an informed decision about your probate legal needs.

Mediation and Custody

Contested custody cases often have a negative impact on the children who are at the heart of the matter.  While parents may have good intentions, the children often get caught in the middle as the parents attempt to work out custody and visitation schedules.

Mediation is often an effective form of resolving custody disputes.  The typical goals in mediation include creating a settlement that is in the best interest of the children, creating a parenting plan that allows both parties significant time with the children, and working toward a more cost-effective resolution—both money-wise and emotionally.

 

There are three types of mediation often utilized in custody matters:  facilitative, evaluative, and transformative.

a. Facilitative mediation.  In facilitative mediation, the mediator does not typically give his own opinions as to potential outcomes if the parties litigate.  The mediator facilitates the process through asking questions, pointing out common interests and points of view, and assisting the parties in analyzing options.  The parties are in control of reaching a resolution.  Typically, the mediator meets for joint sessions with both parties and without attorneys as they want the parties to form their own agreements without the influence of others, including the attorneys. 

b.  Evaluative mediation.  The evaluative mediation process utilizes a mediator who is usually also experienced with the litigation model of resolving custody cases.  The evaluative mediator, who is often a retired judge, helps the parties resolve the custody case by pointing out weaknesses in each party’s case and making predictions as to what a judge may or may not do.  Evaluative mediation is based on the standard set by the law.    Most often, the parties and their attorneys meet together with the mediator.

   

c.  Transformative mediation.  Transformative mediation is the newest of the three mediation forms.  The concept of transformative mediation is based on empowering each of the parties in the decision making process and teaching each party to recognize the needs, interests, values, and points of view of the other party.  The potential for each party to “transform” in his or her relationship with the other party provides an opportunity for the parties to not only resolve the current custody dispute but to hopefully learn a process of dispute resolution they can effect moving forward.  Transformative mediators meet with the parties together.  Transformative mediation is also the form used in the collaborative law process. 

There are pros and cons to each type of mediation.  Feel free to contact one of our attorneys at RRBMDK if you would like additional information on utilizing mediation in custody or divorce cases.  

Attorney’s Fees – The Oft Neglected but Crucial Provision

On the issue of attorney’s fees, Virginia and many other states subscribe to what is known as the “American Rule.”  The “rule” states that all parties to a lawsuit will be responsible for their own attorney’s fees regardless of who “wins” unless a contractual provision or statute provides otherwise.  Even so, it is often surprising how many contracts fail to include any terms regarding the ability to recover reasonable attorney’s fees in the event that a party needs to sue for breach of the contract.  When negotiating terms, parties routinely fail to consider the costs associated with initiating or defending a lawsuit arising from the contract.  These costs, including but not limited to attorney’s fees, are significant.  In some cases, these costs can even exceed the actual damages incurred as a result of the breach.  In that instance, the wronged party can never be “made whole” because he or she has had to absorb the costs of the lawsuit.  This result can easily be avoided if the contract provides for the ability of a prevailing party in a suit for breach to collect attorney’s fees. 

Attorney’s fees provisions can also benefit the parties by discouraging litigation in some circumstances, or reducing the time before settlement of litigation in others.  The provision should deter a party from filing any lawsuit that is not a) necessary and b) well-founded, due to the risk that he or she will be ordered to cover the opposing party’s fees if the suit is not successful.  The same risk encourages parties to enter into negotiations and reach a resolution before incurring substantial fees.  Although an attorney’s fee provision is a necessary and far reaching provision, it terms are relatively straight forward and simple.  When entering into negotiations regarding the language and terms of a contract, or before drafting even the simplest agreement of your own, it is always in your best interest to consult an attorney to ensure that the ability to recover reasonable attorney’s fees is provided clearly and in accordance with the law of the jurisdiction that will be used to interpret the contract in the case of an alleged breach.  While many people believe that they only need an attorney once a problem arises, it is only by consulting an attorney prior to the execution of the contract that you can ensure you are protected before it’s too late.  RRBMDK attorneys are experienced in drafting and reviewing contracts/agreements arising in various areas of law – from Real Estate to Family Law, Employment to Corporate Organization, and want to urge anyone considering entering into a written contract to call upon us for a thorough document review, and to answer any questions related to that ever-present “fine print.”  

RRBMDK Expands With the Addition of Three New Attorneys

RRBMDK recently added three additional attorneys to our firm. They bring a wealth of experience for our clients.

Tom Urban attended the Naval Academy and Texas A&M, with distinction, expecting to pursue a career as an aeronautical engineer. He participated in one of NASA’s early research projects dealing with a manned mission to Mars. Choosing to attend law school instead of pursuing aeronautical engineering, Tom graduated from the Georgetown University Law Center, convinced that his future looked brighter here, on earth, as an associate at Williams and Connolly rather than a life among the stars.  Tom now has more than 20 years as a trial attorney handling a wide variety of complex civil and criminal cases all over the country including RICO, antitrust, employment discrimination and whistleblower claims, white collar crimes, class actions, securities law, toxic torts, corporate fraud, banking law and financial services litigation.

Elizabeth “Liz” Csoka-Bubacz  brings to the firm a solid background in real estate transactions. Having formed and managed her own real estate settlement company, she is familiar with all aspects of real estate settlements, including financing and title insurance. She has litigated a wide variety of real estate and other claims, both in bench trials in General District Courts and jury trials in Circuit Courts, including claims involving RESPA and TILA violations, wrongful foreclosures and landlord/tenant disputes. She has also advised and represented many clients in connection with short sales, foreclosures and deficiency judgments. Liz has shared her expertise through seminars and courses dealing with Fair Housing Regulations, Ethics, and home inspections.

Mark Sullivan is our most recent addition. Before joining us, he served in the Fairfax Commonwealth’s Attorney’s Office for eight years, prosecuting all types of criminal misdemeanor and felony cases. Prior to that, Mark spent seven years in private practice dealing with all aspects of negotiating commercial contracts and complex litigation, including construction and leasing issues, intellectual property rights, and employment law.

We are delighted to welcome Tom, Liz and Mark to the firm. They not only deepen our bench in areas in which we already practice — real estate, complex civil litigation and criminal defense --but they also free up time for our attorneys who concentrate on other areas of our practice — corporate and business transactions, employment law, land use, wills, trusts and estates, civil rights and family law.

Contact us if you think that we can be of any assistance to you, your family, your friends and acquaintances (we are growing and always appreciate referrals) in any of the areas in which we practice. Even if we can’t help you with a particular legal matter, we will do our best to refer you to a well-qualified lawyer who can help you.