If you hire in more than one city, “we follow FCRA” is not the same as “we’re Fair Chance compliant.” San Francisco just added hard clocks to its Fair Chance Ordinance. Miss a deadline, and a clean process on paper can still turn into a violation.As of August 10, 2026, covered employers have new timing rules after they send a notice that criminal history may cost someone a job or a promotion. There is also a new required poster, dated August 2026. This guide is a practical checklist for HR teams who already run background checks and need the San Francisco overlay to line up with federal FCRA steps.This is not legal advice. San Francisco, California, and federal rules stack. Talk with counsel about your locations, remote workers, and CRA package before you change templates.What changed on August 10, 2026?San Francisco’s Fair Chance Ordinance (FCO) has been on the books since 2014. It already limited when you can ask about arrest and conviction records and what you can consider. The July 2026 amendments, effective August 10, 2026, add process and raise the cost of getting it wrong.The two changes most HR teams need to operationalize first:1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;New response clocks. If you send a prospective adverse-action notice based on conviction history or an unresolved arrest, the applicant or employee still has seven days to respond with evidence the record is inaccurate, evidence of rehabilitation, or other mitigating factors. If they do respond, you must confirm receipt within 14 days. You must send any final adverse-action notice within 30 days of receiving their information, or within 30 days of your original notice if they do not respond.2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A new official poster. The Office of Labor Standards Enforcement (OLSE) posted an updated Fair Chance Ordinance Notice (dated August 2026). Post it where employees can actually read it. Provide a copy to each applicant or employee before you run a background check.Penalties also went up. Administrative penalties are now $1,000 per affected person for a first violation, $2,000 for a second, and up to $4,000 for later violations. Liquidated damages in a civil action moved from $500 to $1,000 per affected applicant or employee.The city also tightened which out-of-state records may never be used when the underlying conduct is lawful in California. Treat that as a “do not use / ask counsel” category, not something to litigate in a job ad. If a report surfaces an out-of-state item that might fall here, pause and get advice before it drives a decision.Who is covered?The FCO applies to employers located or doing business in San Francisco with five or more employees, counted anywhere, not just in the city.It applies to positions where the person works, or will work, at least eight hours per week in San Francisco. That includes:·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Temporary, seasonal, part-time, contract, contingent, and commission-based work·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Work through a temp or staffing agency·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Vocational or educational training, paid or unpaid·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Remote work from a location in San FranciscoThat last bullet is the one multi-state teams miss. A role “based” in Texas that is performed from an apartment in the Mission can still be an FCO job.California’s statewide Fair Chance Act (AB 1008) still applies too. Employers who hire in San Francisco must satisfy both. When the rules differ, follow the stricter local clock and the stricter “do not consider” list.Housing providers have a separate Fair Chance track through the Human Rights Commission. This article is about employment.When can we ask about a record?Same core rule as before: do not ask about arrest or conviction records until after a conditional offer.That means:·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;No checkbox on the application·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;No “have you ever been convicted” in the first interview·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;No running the criminal search as a pre-screen to decide who gets an offerSuggested job-ad language from the city: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.”After a conditional offer, you can order a compliant consumer report and review conviction history that is actually usable under the ordinance. You still cannot treat every hit as a reason to pull the offer.What still cannot be considered?Even after a conditional offer, covered employers may not use, among other things:·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;An arrest that did not lead to a conviction (except unresolved arrests)·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Participation in a diversion or deferral-of-judgment program·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A conviction that has been dismissed, expunged, invalidated, or is otherwise inoperative·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A juvenile-system conviction·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;An infraction or other non-felony/non-misdemeanor offense·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A conviction more than seven years old (unless the role supervises minors or dependent adults)·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A conviction for decriminalized conduct, including non-commercial cannabis use and cultivation·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Certain out-of-state convictions or arrests for conduct that is lawful in California (confirm the current list with counsel before you rely on an out-of-state item)If a database search still shows a sealed, dismissed, or expired item, that is a data problem, not a hiring fact. Pause, verify, and do not let a stale hit drive the decision.What does a compliant adverse-action process look like now?Think of San Francisco as FCRA plus a local timer.Federal FCRA (when you used a consumer reporting agency) generally still requires:1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A stand-alone disclosure and written authorization before you order the report2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If the report may cost the person the job, a pre-adverse notice with a copy of the report and a summary of rights3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A reasonable waiting period4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A final adverse-action notice if you still proceedSan Francisco FCO layers on:1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;An individualized assessment before you decide the record is disqualifying. Look at whether the conviction is directly related to the job, how much time has passed, evidence the item is inaccurate, rehabilitation, and other mitigating factors.2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A written notice of prospective adverse action that identifies the specific items you are relying on, plus a copy of the report if you have one.3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Seven days for the person to respond.4.&nbsp;&nbsp;If they respond, confirm receipt within 14 days and actually reconsider.5.&nbsp;&nbsp;If they make a reasonable factual showing that the decision is based solely on a conviction that is not directly related, you are required to withdraw the adverse action.6.&nbsp;&nbsp;Send any final adverse-action notice within 30 days of receiving their information, or within 30 days of your original notice if they stay silent.California state Fair Chance timing can differ from San Francisco’s seven-day window depending on how you send the notice. Do not assume your national CRA template already matches both.A simple timeline you can put on the wall1.&nbsp;&nbsp;Conditional offer2.&nbsp;&nbsp;Provide the FCO poster / notice, then order the check3.&nbsp;&nbsp;Review only usable records; run the individualized assessment4.&nbsp;&nbsp;If you may rescind: send prospective adverse-action notice + report + specific items5.&nbsp;&nbsp;Day 0–7: wait for a response6.&nbsp;&nbsp;If they respond: confirm receipt by day 14 and reopen the assessment7.&nbsp;&nbsp;Final notice by day 30 (from their response, or from your original notice if they did not respond)Put owners on each step. “HR will get to it when the hiring manager is back from PTO” is how the 14- and 30-day clocks get missed.What should we audit this month?Use this as a working list, not a scorecard.Job ads and applications·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Fair Chance statement is in solicitations·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;No conviction question before a conditional offer·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Staffing/temp vendors who fill SF hours are using the same ruleWho you treat as “in San Francisco”·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Employees who work 8+ hours a week in the city, including remote-from-SF·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Seasonal and contingent roles, not just full-time HQ jobsCRA / background-check package·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Authorization happens after the conditional offer for FCO-covered roles·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Reports can be filtered or reviewed against the “do not consider” list (7-year limit, dismissed/sealed, juvenile, infractions, cannabis, unresolved vs. non-conviction arrests)·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Someone is assigned to flag out-of-state items that may be off-limits under California law·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;You can produce the report quickly when you send a prospective adverse-action noticeLetters and clocks·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Prospective adverse-action letter lists the specific items, not a vague “your background check”·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Calendar holds for the 7-day response, 14-day receipt confirm, and 30-day final notice·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If the person replies, someone sends a short “we received this on [date]” note inside 14 days·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Final letters do not sit in a queue past day 30Poster and notices·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;August 2026 FCO poster is up at each workplace or job site·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Posted in English, Spanish, Chinese, and any language spoken by at least 5% of employees at that site·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A copy goes to each applicant or employee before the background checkDocumentation·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Individualized assessment notes (direct relation, time elapsed, rehab/mitigation)·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Dates of notices, replies, and receipt confirmations·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Annual compliance reporting to OLSE if you are a covered employerHow does this sit next to a national FCRA process?A lot of FCRA lawsuits are about the process, not the record. Stand-alone disclosure, written authorization, pre-adverse notice, a real wait, final notice. San Francisco did not replace that. It made the wait measurable.If your team uses one national adverse-action workflow, San Francisco is a reason to branch it:·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Same federal notices·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Local “do not consider” filters·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Local clocks and a receipt-confirmation email·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A poster step before the orderThat is also where a consumer reporting agency earns its keep. Speed still matters. So does a report you can actually explain, dispute, and date-stamp. Instant database results are a first pass. County court depth is often what tells you whether a hit is current, dismissed, or someone else’s record. Neither replaces the Fair Chance steps.Quick answersDoes this apply if nobody sits in our San Francisco office?&nbsp;Possibly. Five employees anywhere plus 8+ hours a week worked in the city, including remote-from-SF, can be enough. Map the work, not the org chart.Can we still run a criminal check?&nbsp;Yes, after a conditional offer, using records the ordinance allows, plus an individualized assessment. The FCO is about when and how, not a ban on screening.What if the report is wrong?&nbsp;Give the person the items you relied on and the seven days to show inaccuracy, rehabilitation, or mitigation. Confirm you got their reply. Reassess. If the only item is not directly related, withdraw the adverse action.Do we need a new poster if we posted the 2018 version?&nbsp;Yes. Use the August 2026 notice. Old posters are the easiest miss on an audit.Is this the same as California’s Fair Chance Act?&nbsp;No. Similar idea, different details. Comply with both. When they conflict, take the path that gives the applicant the greater protection and confirm it with counsel.The takeawaySan Francisco did not invent Ban the Box in August 2026. It put a clock on the part of hiring where people get quiet: the days after you send a “we may not hire you because of this record” letter. Confirm you received a response. Finish the decision. Send the final notice. Post the new notice. Filter what you are not allowed to use.If you hire across cities, treat adverse action like a timed workflow, not a gut call. Your employees are your biggest asset. Informed, lawful screening is how you protect them without improvising the last mile.Questions about building a check that is fast enough for hiring managers and clean enough for Fair Chance and FCRA? We’re here. Subscribe to the CriminalWatchDog newsletter for more practical hiring-compliance updates, and share this with the HR partner who owns your offer letters.ADDITIONAL STORIES THAT MIGHT INTEREST YOU.·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;How Ban the Box Legislation is Changing Hiring Practices·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Ultimate Pre-Employment Screening Checklist

New Clocks on Fair Chance: What San Francisco’s August 2026 Adverse-Action Rules Mean for Multi-State Employers

The reasoning behind non-compete agreements is simple: when an employee leaves a company, the contract prevents them from leaking the business’ confidential information to a competitor. This makes sense when non-competes are applied to only business executives, partners, or officials — people who are actually in possession of the trade secrets the agreements are meant to protect. But when the clauses extend to entry-level workers or employees of businesses that don’t trade secrets, things can get messy.Non-competes are a hot issue right now due to the growth of digital communication, documentation, and higher competition among businesses. Clauses are especially prevalent in such fields as engineering and finance, according to <a href="http://www.washingtonpost.com/blogs/wonkblog/wp/2015/02/21/the-rise-of-the-non-compete-agreement-from-tech-workers-to-sandwich-makers/" rel="noopener noreferrer" target="_blank">a new working paper</a> by economists at the University of Illinois and University of Michigan, but are also appearing in less obvious fields like <a href="http://www.nytimes.com/2014/06/09/business/noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?_r=0" rel="noopener noreferrer" target="_blank">lawn care and hair styling</a>.But as with other company-specific laws, such as <a href="/resources/employment-law/how-ban-the-box-legislation-is-changing-hiring-practices/" rel="noopener noreferrer" target="_blank">Ban the Box legislation</a>, it’s often difficult to establish where the line between being enforceable and being unreasonable is for non-compete agreements. State laws, time and geographic restrictions, employee rank, and industry type are all things that must be considered when determining whether or not a non-compete agreement is enforceable and/or necessary.To help navigate the complicated world of non-compete agreements, below we define exactly what a non-compete agreement is, outline what they entail, provide examples of what is and is not (generally) enforceable, and link to a sample of a standard non-compete contract.<h4>What Is a Non-Compete Agreement and Why Are They Used?</h4>A non-compete agreement is a type of <a href="http://www.mbbp.com/resources/employment/noncomps.html" rel="noopener noreferrer" target="_blank">restrictive covenant</a>. Essentially, it is a promise by an employee to not work for competing businesses in a specific region for a specific time period following termination of employment.Employers use non-compete contracts to keep confidential information — intellectual property, client lists, financial data — safe from competitors. They see the agreements as a way to mitigate the risk of hiring and entrusting private material to employees, consultants, or contractors.The goal of non-competes is to provide an employer protection from unfair competition (competition involving the “misappropriation of good will” — a.k.a. stealing an employer’s relationship with customers, clients, or vendors and/or confidential business information) while not unreasonably prohibiting a former employee from earning a living.<h4>What Is Included In Non-Compete Agreements?</h4>Non-competes specify the geographic scope, duration, and type of activity an ex-employee is prohibited from engaging in. For example, a car salesman might have a 50-mile non-competition radius so as not to steal customers from his or her previous dealership. A TV news reporter, on the other hand, might be forbidden from working for other local television stations for a period of time following termination; time frames can range anywhere from a few months to two years.<h4>When Are Non-Compete Agreements Enforceable?</h4>Here’s where things get tricky. Whether or not a non-compete agreement is enforceable depends on <a href="http://www.mbbp.com/resources/employment/noncomps.html" rel="noopener noreferrer" target="_blank">whether or not it is reasonable</a>, and what is reasonable is determined by state courts on a case-by-case basis; <a href="http://www.beckreedriden.com/wp-content/uploads/2012/09/Noncompetes-50-State-Survey-Chart-20130814.pdf" rel="noopener noreferrer" target="_blank">every state has its own laws regarding non-compete clauses</a>. Non-compete agreements are typically considered enforceable if they:<ul><li>Have reasonable time restrictions (generally less than one year)</li><li>Are limited to a certain geographic area (specific cities or counties, rather than entire states)</li><li>Are necessary to protect certain employer interests, including trade secrets, confidential business information, and the company’s relationship with customers, clients, and vendors (including market position and reputation)</li><li>Are "supported by consideration," meaning an employee receives a benefit (additional compensation, stock options, acceleration of benefits, etc.) in exchange for promising to not work for a competitor</li></ul>Non-compete agreements must also be industry specific in order to be enforceable. For example, a newspaper writer could be barred from working for the other local newspaper, but not writing novels, even though that uses many of the same skills.Technically, a standard non-compete contract <a href="http://thedailyrecord.com/2014/09/26/should-your-company-use-non-compete-agreements/" rel="noopener noreferrer" target="_blank">is more likely to be upheld</a> if the time limitation is short, the geographic scope is small, the type of activity is narrow, and the employee is only prohibited from soliciting their former employer’s established customers.<h4>When Can Non-Compete Agreements Be Disputed?</h4>Non-compete agreements can be disputed and are unenforceable whenever they are too restrictive — which is often. Every state has its own laws about whether or not non-compete agreements are enforceable. Some, <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&amp;group=16001-17000&amp;file=16600-16607" rel="noopener noreferrer" target="_blank">like California</a>, have deemed them illegal except in the sale of a business or a shareholder’s stock or dissolution of a partnership. Others, <a href="http://www.lindquist.com/files/Publication/5ad45f6f-fa73-4842-983d-e9cbd88bf37e/Presentation/PublicationAttachment/840cb492-f058-4199-8c2a-ecdb8e9c6636/Employer%20Beware%20-%20Is%20Your%20Noncompete%20Agreement%20Enforceable.pdf" rel="noopener noreferrer" target="_blank">like Wisconsin, Nebraska, and Arkansas</a>, allow reasonable agreements but will invalidate contracts that are too broad.<a href="http://www.beckreedriden.com/wp-content/uploads/2012/09/Noncompetes-50-State-Survey-Chart-20130814.pdf" rel="noopener noreferrer" target="_blank">This chart</a> outlines each state’s laws and rules about whether, when, and to what extent a non-compete agreement is enforceable, and demonstrates the complications involved in determining enforceability. It includes information like:<ul><li>Whether non-compete agreements are permitted at all (in California, non-competes are illegal unless you are selling a business)</li><li>Specifications for what is and isn’t allowed (for example, in Arkansas, customer relationships are only protected where the employee was the sole contact)</li><li>Whether the state follows the <a href="http://www.natlawreview.com/article/how-50-states-differ-revising-non-competes-different-strokes-different-folks-or-red-" rel="noopener noreferrer" target="_blank">reformation rule, the blue pencil doctrine, or the red pencil doctrine</a></li><li>Whether non-compete agreements are enforceable against at-will employees whose <a href="http://www.criminalwatchdog.com/resources/employment-law/how-performance-management-protects-businesses-when-firing-employees/" rel="noopener noreferrer" target="_blank">employment was terminated without cause</a></li></ul>In general, courts will rule in favor of an employee in cases determining the reasonableness of a non-compete agreement. Some of the <a href="http://corporate.findlaw.com/business-operations/will-your-non-compete-agreement-withstand-a-court-challenge.html" rel="noopener noreferrer" target="_blank">factors judges look at when deciding on a ruling</a> for these cases include:<ul><li>Geographical restrictions (state-wide won’t be enforced, but a local areal restriction might, if it is necessary to protect the employer)</li><li>Time period restrictions (the longer it is, the more likely it will be deemed unfair)</li><li>Type of industry, work, or specific company (businesses with direct competitors may indicate the company they don’t want employees going to)</li><li>Circumstance (whether the employee was terminated or left voluntarily)</li><li>Too broad (unnecessary restrictions, usually pertaining to geographic or time limits)</li><li>Type of work/job position (if an employee doesn’t have access to confidential information or trade secrets, the non-competition clause may be deemed automatically unnecessary)</li></ul>For prospective employees, it’s always a good idea to read the fine print of a non-compete contract. When doing so, ask yourself if the clause is relevant to your job, if it is fair, and if it is reasonable to you considering your location, position, and job responsibilities. Here’s <a href="http://www.kkrlaw.com/articles/noncomp.htm" rel="noopener noreferrer" target="_blank">an example of a general non-compete contract</a>, and the stipulations you might encounter.For employers, non-compete agreements should be used only to protect confidential information and only when absolutely necessary. If you do decide to require a non-compete, make the requirement known in a prospective employee’s offer letter. This inherently fulfills the consideration aspect of the agreement, with the benefit for the employee being the job. Asking employees to sign a non-compete later on in their tenure, or following a promotion, means <a href="http://www.mbbp.com/resources/employment/noncomps.html" rel="noopener noreferrer" target="_blank">a benefit must also be included</a> (raise, bonus, stock options, etc.), which adds additional complications to an already complicated process.<h4>So, are Non-Compete Agreements Actually Enforceable?</h4>Non-compete agreements are complicated and multifaceted deals. In some cases, such as in the sale of an entire business, they are necessary and practical. In most situations, however, they are unreasonable and unenforceable. Being aware of state laws and the specific requirements outlined in a non-compete agreement are the best ways to avoid messy legal disputes and maintain positive employee–employer relationships.

Are Employee Non-Compete Agreements Enforceable?

Firing employees is never easy. As managers, we’re often painted as the bad guy, but it’s our responsibility to establish an efficient, happy, and talented workplace. We have to look out for the business and each individual employee, balancing the needs of both to bring about positive growth.Sure, the "sorry, we have to let you go" conversation can be emotionally-charged and difficult to initiate, but it can also lead to consequences if not handled properly. Thankfully, performance management can help spread the burden of responsibility when it comes to terminating employment, both legally and emotionally. It’s a way of ensuring employees are aware of their goals and duties, so that should they fail to meet them, appropriate steps can be taken to address the situation.<h3>First, What is Performance Management?</h3>Performance management is an organized, ongoing process that involves making sure employees continuously contribute toward business goals, and if they are not, provides a process for letting them know and helping them improve.<a href="http://www.acas.org.uk/index.aspx?articleid=4668" rel="noopener noreferrer" target="_blank">According to management consultancy ACAS</a>, good performance management ensures that everyone knows:<ul><li>What the business goals are</li><li>How they can help the business achieve these goals</li><li>The skills they need to do this</li><li>The standards required of them</li><li>How well they’re doing</li><li>How they can improve</li><li>When there are problems</li></ul>To be successful, performance management requires regular meetings between managers and team members so that they can discuss all of the above issues. This should happen both informally and formally, and detailed documentation should be made as both types of meetings occur.<h3>What Risks Do Businesses Take when Firing Employees?</h3>Firing employees should be a last resort and should only be necessary when other steps taken to resolve performance issues have failed. This is because businesses assume a number of risks when they make the decision to fire someone. These include:<h4>Security risks</h4>Firing employees can leave them feeling hurt and angry, and unfortunately this can lead to security breaches or retaliation. Terminated employees often have access to company resources (including digital ones) which could be abused and result in business interruption, sabotage, embarrassment, lost productivity, and other financial costs.Unfortunately, it’s also a sad fact that termination can result in injury and even death. In September 2012, a former employee of a Minneapolis signage company allegedly <a href="http://www.myfoxtwincities.com/story/19659885/minneapolis-office-shooting-chestnut-ave" rel="noopener noreferrer" target="_blank">shot and killed</a> five people at his workplace the day after he was fired, before taking his own life.A <a href="http://minnesota.cbslocal.com/2014/09/22/settlement-reached-in-accent-signage-shooting-suit/" rel="noopener noreferrer" target="_blank">lawsuit</a> was later brought against the employer by the family of one of the victims. It stated that the shooting was reasonably foreseeable based on the shooter’s former behavior, and was later settled out of court.This highlights the need for proper pre-employment screenings, regular <a href="/criminal-background-check" rel="noopener noreferrer" target="_blank">criminal background checks</a>, and constant <a href="http://www.doli.state.mn.us/WSC/PDF/WorkplaceViolencePreventionGuide.pdf" rel="noopener noreferrer" target="_blank">monitoring for high-risk employees</a>, as it's our responsibility to provide a safe work environment that <a href="http://www.criminalwatchdog.com/resources/employment-law/what-is-OSHA-and-other-workplace-safety-questions-answered" rel="noopener noreferrer" target="_blank">abides by OSHA standards</a>.<h4>Legal risks</h4>A number of different factors determine whether or not employees have the right to pursue a lawsuit against their employer, including the type of contract they’ve signed, union membership regulations, and the length of their service.For example, employees who feel they were dismissed unfairly can file <a href="http://www.dol.gov/dol/topic/termination/" rel="noopener noreferrer" target="_blank">wrongful termination</a> lawsuits. This often happens when employees aren’t given a reason for being fired, when they’ve been led to believe they’re good workers, or when their dismissal coincides with a complaint that they’ve made against an individual or the company.In addition to this, employees may also cite discrimination as the reason for their termination. Discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information is illegal, and it’s also illegal to retaliate against a person because he or she complained about discrimination to the Equal Opportunities Employment Commission (<a href="http://www.eeoc.gov/laws/practices/index.cfm" rel="noopener noreferrer" target="_blank">EEOC</a>). It's <a href="/resources/employment-law/ways-employers-encourage-discrimination-in-the-workplace" rel="noopener noreferrer" target="_blank">surprisingly easy to unintentionally encourage or practice discrimination in the workplace</a>, so when firing employees we need to be able to prove that the decision had nothing to do with any of these factors.<h3>So, How Does Performance Management Protect Our Businesses?</h3><h4>It minimizes losses</h4>When it comes down to it, we need to protect our business and our jobs. Performance management can help us do that. It gives us a clear process for making underperforming employees aware that they need to improve, and outlines the potential consequences if they don’t.What's more, this systematic approach can help us find employee inefficiencies faster. Why the haste? Apart from the direct effects that poor performers have on business objectives, holding onto disengaged, unfocused employees can result in a ripple of negativity across the organization. It’s demotivating for others to see other employees not pulling their weight and this can lead to low morale and reduced <a href="/resources/employee-engagement/" rel="noopener noreferrer" target="_blank">employee engagement</a> across the board. And poor morale and engagement can result in actual financial losses, since disengaged employees are estimated to cost the U.S. economy $450 billion to $550 billion annually, according to a <a href="http://www.gallup.com/poll/165269/worldwide-employees-engaged-work.aspx" rel="noopener noreferrer" target="_blank">survey</a> by Gallup.In a way, performance management is putting the ball in underperforming employees' court. By setting clear goals, giving them the right tools to achieve them, and offering performance reviews along the way, we’re giving them a fair chance to improve, while also ensuring that we won’t sustain further losses if any issues continue.<h4>It provides fair warning, which reduces legal risk</h4>When performance evaluations are a consistent part of an organization's processes, employees are made fully aware of their responsibilities and growth (or lack thereof) on a regular basis. It means we're giving employees plenty of chances to fix issues and to ask for help.Employee turnover costs money, as much as <a href="http://www.inc.com/suzanne-lucas/why-employee-turnover-is-so-costly.html" rel="noopener noreferrer" target="_blank">150%</a> of each lost employee’s annual salary to be exact. Remember, <a href="/resources/employee-engagement/5-ways-to-motivate-employees/" rel="noopener noreferrer" target="_blank">having a performance management strategy</a> not only saves us money from an operational standpoint, it also saves us from expensive legal fees due to wrongful termination or discrimination lawsuits filed against us. Thus, we want to make sure we only terminate someone after a series of straight-talking discussions, performance improvement plans, and documented actions.Effective performance management is also a way of putting a human face to the dismissal process, which is a softer way to reduce the risk of someone filing a lawsuit after termination. If our employees feel that we’ve done everything we can to help them succeed, by the time dismissal occurs it won’t come as a surprise. They should leave feeling as though they’ve been consulted throughout the process, not victimized.<h4>It creates a trail of evidence</h4>If employees are let go and they file a lawsuit, we want to make sure we can provide evidence that they were fired with just cause. Performance management is a way of preparing ourselves to do just that.Effective performance management involves keeping accurate and up-to-date personnel files on all employees. These serve as a historical timeline of their employment from hire through to termination, including evidence of all goals set, training undergone, and feedback given.These files are invaluable should a court case arise, and having them on-hand can save time and money when defending ourselves against a claim of unfair dismissal. So we need to make sure that our organizations have an employee performance review process that gathers documentation, such as through the help of employee evaluation software like <a href="https://www.small-improvements.com/" rel="noopener noreferrer" target="_blank">Small Improvements</a> and detailed "recap" emails sent to employees by managers after every one-on-one meeting.<h3>Takeaway</h3>Performance management is by no means a silver bullet; it takes a lot of work to maintain an effective, user-friendly, ongoing program, and it must be applied consistently across the board for it to be a success.However, when implemented properly, the benefits far outweigh the costs, both in developing a performance-driven culture and in protecting our business from legal disputes. As managers, we’re protectors of the workplace. Our employees are the key to our success and it’s down to us to do what's best for the majority of them.Are you having issues with under-performing employees? If their poor performance is due to lack of engagement, check out these <a href="/resources/employee-engagement/5-ways-to-motivate-employees/" rel="noopener noreferrer" target="_blank">five proven employee engagement ideas for motivating employees</a>.<h3>Additional Resources You Might Find Interesting:</h3><ul><li><a href="/resources/leadership-and-management/" rel="noopener noreferrer" target="_blank">Management advice that will make you a better leader</a></li></ul>

How Performance Management Can Protect Businesses When Firing an Employee

The decision to hire interns can be a complicated one, especially when trying to navigate the legality of unpaid versus paid internships. Are unpaid internships ever legal? If so, when? If the internship has to be paid, how much should you pay the interns? It’s a lot to consider.But the truth is, internship programs are something every company should be seriously thinking about. The popularity — and necessity — of internships is booming. 55% of the class of 2012 had an internship during college, according to a study by the <a href="http://www.naceweb.org/uploadedFiles/NACEWeb/Research/Student/2012-student-survey-executive-summary.pdf" rel="noopener noreferrer" target="_blank">National Association of Colleges and Employers</a>. A <a href="http://www.internships.com/eyeoftheintern/news/idc-news/internships-survey-2014-internship-trends/" rel="noopener noreferrer" target="_blank">2013 survey by Internships.com</a> revealed that 67% of the class of 2013 had completed at least one internship during college.These growing numbers demonstrate how important internships have become with regard to getting a job. They’re so important, in fact, that a <a href="http://www.bloomberg.com/bw/articles/2014-08-15/skipped-your-college-internship-youre-far-less-likely-to-get-a-job-in-business" rel="noopener noreferrer" target="_blank">2014 Bloomberg Businessweek study</a> showed students with internship experience are up to 43% more likely to get jobs out of college than those without.Whether you already offer internships or are just getting started setting up a program, there are a few things you should keep in mind. Below is information regarding the laws surrounding unpaid vs. paid internships, as well as resources explaining a few other details regarding the hiring of interns.<h4>The Only Way an Unpaid Internship is Legal</h4>Debates surrounding the legality of unpaid internships <a href="http://www.economist.com/blogs/economist-explains/2014/09/economist-explains-7" rel="noopener noreferrer" target="_blank">seem never-ending</a>. They also seem to be <a href="http://fortune.com/2015/01/29/unpaid-internships-legal-battle/" rel="noopener noreferrer" target="_blank">without rhyme or reason</a>. The truth is, the U.S. Department of Labor (DOL) has laid out very specific laws to determine the legality of unpaid internships. Those laws are contained in <a href="http://www.dol.gov/whd/regs/compliance/whdfs71.htm" rel="noopener noreferrer" target="_blank">Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act</a>.The fact sheet identifies six criteria an unpaid internship in the for-profit private sector must meet in order to be legal. If the internship doesn’t meet all six standards, the intern must be paid “at least the minimum wage and overtime compensation for hours worked over 40 in a workweek” — just like a regular employee (Note: This applies <a href="https://icc.ucdavis.edu/lab/business/Differences.htm" rel="noopener noreferrer" target="_blank">only to for-profit private sector internships</a>. A note at the bottom of the fact sheet explains that the FLSA makes a special exception for unpaid internships in the public sector and at non-profits; interns are considered volunteers and therefore aren’t legally required to be paid.). The six criteria for unpaid internships, as written by the DOL, are as follows:<ol><li>The internship, even if it includes actions and responsibilities full-time employees would perform, is considered training</li><li>The internship experience is for the benefit of the intern, not the employer</li><li>The intern does not replace regular employees, but works under close supervision of existing staff</li><li>The employer that provides the training should see no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded (a.k.a. the business should not rely on interns to perform vital operational functions that impact revenue and/or performance)</li><li>The intern understands he/she is not entitled to a job at the conclusion of the internship</li><li>The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship (a.k.a. get it in writing that it's an unpaid internship)</li></ol>In general, the more an internship mirrors an academic experience, the more likely it will fulfill the six criteria. That’s not as easy as it sounds, however. Basically, the law holds that if an intern is engaged in any way with the operations of the business — clerical work, assisting customers, answering phones, etc. — then they are entitled to the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.Similarly, if you plan to use interns as substitutes for regular workers or to augment your existing staff during specific time periods — tax season, for example — then the interns should be paid. Another way to look at it: If you would have hired additional employees or required existing staff to work additional hours had the interns not been there, then the interns are viewed as employees under the FLSA.As for the legality of internships being “paid” for in school credit, no hard-and-fast rules exist. Recently, however, major schools such as Columbia University and New York University decided to <a href="http://www.newsweek.com/another-blow-free-labor-columbia-university-halts-academic-credit-internship-230554" rel="noopener noreferrer" target="_blank">no longer offer undergraduate students registration credits</a> in exchange for internship experiences. Other schools that don’t grant credit for internships include Dartmouth, Yale, and Harvard.Given these specific-yet-wide-reaching requirements, most interns at for-profit businesses should legally be paid at least the minimum wage and be treated as temporary employees with respect to labor law .<h4>So You Want to Hire an Intern</h4>As we’ve already established, interns in most cases should be treated as temporary employees, unless you meet the six criteria to legally have unpaid interns (or work for a company in the nonprofit or public sector). And the criteria should not be taken lightly, either: In 2011, two interns who worked on the movie Black Swan <a href="http://www.nytimes.com/2011/09/29/business/interns-file-suit-against-black-swan-producer.html?_r=0" rel="noopener noreferrer" target="_blank">sued Fox Searchlight Pictures</a> for having them do work that should have been done by paid employees. In June 2013, <a href="http://www.nytimes.com/2013/06/12/business/judge-rules-for-interns-who-sued-fox-searchlight.html" rel="noopener noreferrer" target="_blank">the court sided with them</a>, ruling that they deserved minimum wages in exchange for their work.The lawsuit sparked an array of copycat suits filed by interns from such companies as <a href="http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-nbc-interns-lawsuit-settlement-20141024-story.html" rel="noopener noreferrer" target="_blank">NBCUniversal</a>, <a href="http://www.law360.com/articles/615313/interns-say-rolling-stone-others-failed-to-pay-them" rel="noopener noreferrer" target="_blank">Rolling Stone</a> magazine, and <a href="http://www.law360.com/employment/articles/616184/cbs-faces-intern-class-action-after-aborted-late-show-suit" rel="noopener noreferrer" target="_blank">CBS Corp</a>. These suits and others like it have led some companies (Fox Searchlight, <a href="http://www.propublica.org/article/nation-institute-to-pay-interns-minimum-wage" rel="noopener noreferrer" target="_blank">The Nation</a> magazine) to restructure their internship programs to include minimum-wage pay, and made others, like <a href="http://fortune.com/2013/10/24/conde-nast-will-regret-cutting-its-internship-program/" rel="noopener noreferrer" target="_blank">Conde Nast</a>, to cut their internship programs altogether.But the issue of paid vs. unpaid internships is still in limbo. While the Fox Searchlight interns won their court case, eight former Hearst Corporation interns <a href="http://www.bloomberg.com/bw/articles/2013-06-27/unpaid-intern-lawsuits-explained" rel="noopener noreferrer" target="_blank">who filed in 2011 with similar claims</a> — in the same district court (Manhattan) — did not. A case filed in the Second Circuit Court of Appeals in Manhattan in January 2015 will seek to address that inequality and answer the question: Is an intern an employee?Until then, assume that all interns should be treated as regular employees. That means you treat them just like any other employee you would hire. <a href="/faq/employment-background-check" rel="noopener noreferrer" target="_blank">Notify them when running a background check</a>. <a href="/resources/employment-law/list-of-illegal-interview-questions-supervisors-should-never-ask/" rel="noopener noreferrer" target="_blank">Avoid asking illegal interview questions</a> (some of which are easy to ask by accident). And yes, pay them at least minimum wage if you're filling a role at a for-profit company.

Hiring Interns? Yeah There's a Law for That

Employment Law

Losing an employee, whether due to firing, layoffs, or quitting, is never an ideal situation. Things can get messy and complicated, and, during the tumult, important security measures can be forgotten. To avoid potentially dangerous situations, we’ve compiled the ultimate employee termination checklist.<ol><li>Before You Let Them Go</li><li>Before you fire an employee, there are a few <a href="http://www.bizfilings.com/toolkit/sbg/office-hr/managing-the-workplace/employee-termination-procedures.aspx" rel="noopener noreferrer" target="_blank">do’s and don’ts</a> to keep in mind.</li></ol><ul><li class="ql-indent-1">Don’t fire someone on the spot. This sets you up for lawsuits and other headaches.</li><li class="ql-indent-1">Do make sure you have a valid, nondiscriminatory business reason for taking action and that you have enough documentation to prove it. <a href="/resources/employment-law/how-performance-management-protects-businesses-when-firing-employees/" rel="noopener noreferrer" target="_blank">Keep track of the employee’s unsatisfactory behaviors during the normal course of business</a>. Keep the documents on file. They should include any documentation of violations of rules or poor performance reviews.</li><li class="ql-indent-1">Do make sure you have clearly outlined your company’s conduct and performance expectations in the <a href="/resources/leadership-and-management/what-should-go-in-an-employee-handbook-template" rel="noopener noreferrer" target="_blank">employee handbook</a>, so everyone has fair warning about what is expected of them.</li><li class="ql-indent-1">Don’t discriminate. Rules should be enforced fairly and applied equally to all employees.</li></ul><ol><li>Consider a Release</li><li>To negate the risk of being sued after letting someone go, consider negotiating a release agreement with him or her. Releases require the employee to give up his or her right to sue you and are most often used when the documentation needed to fire someone is lacking. They can also be used to offer early retirement or when you are seeking to end an employment contract early by buying someone out.</li><li> </li><li>To be effective, the <a href="http://www.bizfilings.com/toolkit/sbg/office-hr/managing-the-workplace/employee-termination-procedures.aspx" rel="noopener noreferrer" target="_blank">release must be</a>:</li></ol><ul><li class="ql-indent-1">In writing</li><li class="ql-indent-1">Signed by the employee who is waiving the right to sue</li><li class="ql-indent-1">A knowing and voluntary waiver</li><li class="ql-indent-1">Supported by adequate consideration (you must give them something of value in return that they wouldn’t receive without signing)</li></ul><ol><li>The release should specifically refer to employment laws involved in the waiver of rights. The goal here is to be sure that the employee can't claim he or she didn't know what the document said.</li><li>Look Up Severance Agreement Requirements</li><li><a href="http://www.dol.gov/dol/topic/wages/severancepay.htm" rel="noopener noreferrer" target="_blank">Severance pay</a> is often granted to employees upon termination and is usually based on length of employment. There is no requirement in the <a href="http://www.dol.gov/whd/flsa" rel="noopener noreferrer" target="_blank">Fair Labor Standards Act (FLSA)</a> for severance pay; it is an agreement between an employer and an employee.</li><li> </li><li>As there is no FLSA requirement to provide employees with severance, it’s important to know your company policy and have things in place before letting an employee go. Severance packages may include health insurance, continued payments for a designated period of time, and the services of an outplacement program.</li><li>Employees <a href="http://employment.findlaw.com/losing-a-job/employee-rights-after-a-job-termination.html" rel="noopener noreferrer" target="_blank">may have a right to a severance package</a> for the following reasons:</li></ol><ul><li class="ql-indent-1">The terms of a written contract provide for severance pay</li><li class="ql-indent-1">Severance pay is included as an employee right in the employee handbook</li><li class="ql-indent-1">The company has a history of offering severance pay to other employees in the same position</li><li class="ql-indent-1">An oral promise to offer severance pay was made</li></ul><ol><li>Health Coverage Extension</li><li>Terminated employees have the right to health insurance coverage after they’ve been let go, due to the <a href="http://www.dol.gov/ebsa/newsroom/fscobra.html" rel="noopener noreferrer" target="_blank">Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986</a>.</li><li> </li><li>The law gives workers who lose their health benefits the right to choose to continue group health benefits provided by the plan under certain circumstances, which <a href="http://www.dol.gov/ebsa/newsroom/fscobra.html" rel="noopener noreferrer" target="_blank">include</a>:</li></ol><ul><li class="ql-indent-1">Voluntary or involuntary termination of employment for reasons other than gross misconduct</li><li class="ql-indent-1">Reduced hours of work</li><li class="ql-indent-1">The employee becomes entitled to Medicare</li><li class="ql-indent-1">Divorce or legal separation of covered employee</li><li class="ql-indent-1">Death of the covered employee</li><li class="ql-indent-1">Loss of status as a dependent child under plan rules</li></ul><ol><li>COBRA generally requires that group health plans sponsored by employers with 20 or more employees offer employees and their families the opportunity for a temporary extension of health coverage. It generally covers group health plans and applies to plans in the private sector and those sponsored by state and local governments.</li><li> </li><li>It is the responsibility of the former employee to pay the full cost of coverage.</li><li>Familiarize yourself on the COBRA <a href="http://www.dol.gov/ebsa/newsroom/fscobra.html" rel="noopener noreferrer" target="_blank">notification requirements</a> established by the U.S. Department of Labor to make sure you have all your bases covered.</li><li>The Termination Letter</li><li>A termination letter should be clear and concise and include all relevant information about the arrangement. Keep in mind that it, like every other step of the termination process, should be in line with the employee’s contract and fulfill any obligations they may have under said agreement.</li><li> </li><li>A termination letter should be written formally, should thank the employee for their service, and, if applicable, should mention any specific event or positive accomplishment about how the employee benefitted the company. The reasons for termination should be expressed very carefully and clearly; this letter will remain in the employee’s record.</li><li> </li><li>The <a href="http://sample-resignation-letters.com/p383459-writing-an-employee-termination-letter-with.cfm" rel="noopener noreferrer" target="_blank">letter should contain</a>:</li></ol><ul><li class="ql-indent-1">The name of the person being terminated, the name of the company, and the date when the termination becomes effective</li><li class="ql-indent-1">The reason for termination</li><li class="ql-indent-1">If the employee has been warned verbally or in writing before the decision to terminate him or her, this should be mentioned. This includes any performance reviews that alerted the employee of issues</li><li class="ql-indent-1">A list of items the employee is required to return</li><li class="ql-indent-1">Mention of any accrued vacation time that requires payment, or other pay needs, along with a date the payment will be made</li><li class="ql-indent-1">If health benefits have been provided, it should be mentioned how this will be handled (see #4)</li></ul><ol><li>Before writing the termination letter, be sure to gather the employee’s contract, any non-disclosure agreements they signed at the start of employment, an independent contractor agreement (if applicable), and the employee handbook.</li><li>Make sure all legal matters are covered by consulting with a lawyer.</li><li>Consider looking at a few termination letter <a href="http://sample-resignation-letters.com/p383459-writing-an-employee-termination-letter-with.cfm" rel="noopener noreferrer" target="_blank">samples</a> to get an idea of how you want to write yours.</li><li>Retrieve Company Property</li></ol><ul><li class="ql-indent-1">Blackberry/PDA</li><li class="ql-indent-1">Cell phone</li><li class="ql-indent-1">Card key/other keys</li><li class="ql-indent-1">Company car</li><li class="ql-indent-1">Parking pass</li><li class="ql-indent-1">Credit cards</li><li class="ql-indent-1">Laptop/desktop computer</li><li class="ql-indent-1">Printer, copier, scanner, fax machine</li><li class="ql-indent-1">Marketing materials</li><li class="ql-indent-1">Files</li><li class="ql-indent-1">Company contact list (employees as well as clients)</li><li class="ql-indent-1">Employee handbook</li><li class="ql-indent-1">Identification badges</li><li class="ql-indent-1">Any other company equipment (camera, uniform, etc.)</li></ul><ol><li>This is important because by not collecting items like parking passes, credit cards, marketing materials, and contact information, the former employee will have inappropriate access to company information and property which he/she could abuse.</li><li>Revoke Access Information</li></ol><ul><li class="ql-indent-1">Disable email account</li><li class="ql-indent-1">Remove employee’s name from:</li><li class="ql-indent-2">Email group lists</li><li class="ql-indent-2">Distribution lists</li><li class="ql-indent-2">Internal/office phone list</li><li class="ql-indent-2">Website</li><li class="ql-indent-2">Building directory</li><li class="ql-indent-1">Close computer access</li><li class="ql-indent-1">Disable access to company intranet</li><li class="ql-indent-1">Disable access to company social media accounts (Twitter, Facebook, Instagram, Tumblr, etc.)</li><li class="ql-indent-1">Change or transfer phone extension</li><li class="ql-indent-1">Change voicemail</li><li class="ql-indent-1">Deactivate long-distance access code</li><li class="ql-indent-1">Lock access to system and backup data prior to the notification meeting</li><li class="ql-indent-1">Remove access to external company databases and/or remote access software</li><li class="ql-indent-1">Review and change all passwords prior to or during the notification meeting</li><li class="ql-indent-1">Transfer/cancel employee’s email account</li><li class="ql-indent-1">Set automatic email notification to alert senders that employee is no longer employed</li></ul><ol><li>In today’s digital world, it’s easy to overlook some of the many accounts and sites that need to be addressed with this step. But it’s a very important step, as giving recently terminated employees access to, say, the company’s Twitter feed can be detrimental.</li><li>For example, in early 2014, HMV, a British entertainment retailer, laid off 190 employees. The company pulled a group of more than 60 into the HR office and gave them the bad news. One of the soon-to-be unemployed was an HMV community manager and <a href="http://www.forbes.com/sites/susanadams/2013/02/01/dont-fire-an-employee-and-leave-them-in-charge-of-the-corporate-twitter-account/" rel="noopener noreferrer" target="_blank">still had access to the corporate Twitter account</a>. She started live tweeting about the layoffs. In 20 minutes, she sent out numerous tweets to the company’s then-61,500 followers about the “mass execution,” as she called it.</li><li>This is not the message you want to send to the public, customers, employees, or competitors. Take the necessary steps to block this kind of access before beginning the termination process to avoid embarrassment and potential lawsuits.</li><li>Determine Amount Owed to be Paid</li></ol><ul><li>Calculate what wages are owed; consult with a lawyer or your <a href="http://www.dol.gov/whd/contacts/state_of.htm" rel="noopener noreferrer" target="_blank">state’s department of labor</a>, as <a href="http://www.nfib.com/article/the-final-paycheck-paying-terminated-employees-on-time-45348/" rel="noopener noreferrer" target="_blank">laws vary by state</a></li><li class="ql-indent-2">Consider any past correspondence, verbal or written, as well as what is stated in the offer letter/employment agreement and the company handbook, regarding severance compensation</li><li class="ql-indent-2">Determine when wages must be paid following termination—again, laws vary by state (i.e. next scheduled payday vs. day of)</li><li class="ql-indent-2">Determine if deductions are necessary for unpaid loans, lost/stolen company property, etc., and whether those deductions are allowed by law</li><li class="ql-indent-2">Discontinue automatic payroll deposits</li></ul><ol><li>Not paying the accurate amount could end in a lawsuit. Also, keep in mind it is <a href="http://work.chron.com/can-boss-keep-last-paycheck-dont-put-two-weeks-notice-in-8946.html" rel="noopener noreferrer" target="_blank">illegal to withhold an employee paycheck</a> as collateral while waiting for company property to be returned, according to the Fair Labor Standard Act’s (FLSA). The FLSA notes that employers are not required by federal law to <a href="http://www.dol.gov/dol/topic/wages/lastpaycheck.htm" rel="noopener noreferrer" target="_blank">give former employees their final paycheck immediately</a>. Some states, however, may require immediate payment.</li><li>Vacation Consideration</li></ol><ul><li class="ql-indent-1">Calculate how much vacation the employee has earned and how much has been used</li><li class="ql-indent-1">Determine if your policy is to pay employees for accrued but unused vacation—consult the handbook as well as state law</li></ul><ol><li><a href="http://www.businessmanagementdaily.com/30895/state-laws-on-vacation-pay-after-termination#_" rel="noopener noreferrer" target="_blank">Most states</a> have laws entitling terminated employees <a href="http://www.nolo.com/legal-encyclopedia/paid-vacation-what-are-rights-33485.html" rel="noopener noreferrer" target="_blank">to get paid for their unused accrued vacation time</a>. Be sure to review your company’s policy as well as state law with regard to this matter.</li><li>Also, companies <a href="https://www.legalzoom.com/articles/employment-law-101-accounting-for-vacation-pay" rel="noopener noreferrer" target="_blank">cannot deduct vacation pay without the employee's consent</a> or withhold vacation pay as a disciplinary matter. Some states will prosecute employers for doing such; employees can sue in civil court even if their state lacks specific laws regarding final wages.</li><li>To protect your business, employees, and reputation, it’s important to take the time to put in place specific, all-encompassing termination requirements as part of your <a href="/resources/employment-law/how-performance-management-protects-businesses-when-firing-employees/" rel="noopener noreferrer" target="_blank">performance management plan</a>. Following these steps will help ensure a smooth transition between employees and help you avoid unnecessary lawsuits.</li></ol>

The Ultimate Termination Process Checklist

The Ultimate Pre-Employment Screening Checklist

You might have read stories about what it's allegedly like to job hunt in Silicon Valley; where 20-something applicants <a href="http://www.newrepublic.com/article/117088/silicons-valleys-brutal-ageism" rel="noopener noreferrer" target="_blank">get Botox injections</a> or go to other extreme lengths to hide their age because of rampant discrimination in the workplace against "the old" (that is, <a href="http://www.nytimes.com/2013/05/05/magazine/y-combinator-silicon-valleys-start-up-machine.html" rel="noopener noreferrer" target="_blank">anyone over 32 years old</a>).Despite crackdowns by the Equal Employment Opportunity Commission (EEOC), there’s still a belief that “young people are just smarter,” as Facebook CEO Mark Zuckerberg <a href="http://venturebeat.com/2007/03/26/start-up-advice-for-entrepreneurs-from-y-combinator-startup-school/" rel="noopener noreferrer" target="_blank">famously said</a> (when he was younger). And Silicon Valley isn’t alone. Many employers discriminate against people on the basis of age, sex, race, religion, disability, and other factors by actions they may not ever consider to be discriminatory.For example, many companies run afoul of the law with job postings that ask for “able-bodied” employees or even jokingly say they’re “looking for a few good men.” Or some managers roll their eyes when organizing mandatory anti-discrimination trainings, which makes it seem like they don't take discrimination law seriously.Discrimination can accidentally creep up just about anywhere. Here are some ways organizations demonstrate or encourage workplace discrimination and strategies to avoid them.<h3>Discrimination and Hiring Decisions</h3>Job postings have to do so much in so few words. They need to include preferred skills and experience while also impressing applicants (so as to compete with other job listings). But all this careful consideration and "word wizardry" make it easy to accidentally slip in phrases that exclude certain people. For example, saying it’s a “young, energetic company” or that the job would be “perfect for a retiree or stay-at-home mom” could be interpreted as discriminatory.And it's not just about avoiding certain phrases altogether. How we say things needs to be considered, too. For example, it communicates something quite different to say we’re looking for a mature person versus a person who demonstrates maturity. The former positions maturity as a core characteristic, whereas the latter positions it as a skill. In other words, the former could be interpreted as age discrimination, the other not so much.Discrimination can even slip in when writing job applications or interviewing candidates. The EEOC <a href="http://www.eeoc.gov/laws/practices/#pre-employment_inquiries" rel="noopener noreferrer" target="_blank">explicitly prohibits</a> pre-employment questions about disability (including pregnancy) and recommends avoiding any questions around professional organizations, which could reveal an applicant's race or religion. There are also regulations on <a href="/faq/employment-background-check" rel="noopener noreferrer" target="_blank">what kind of background check information employers can gather</a>.<h3>Tips for avoiding discrimination when hiring new employees</h3><ul><li>Focus on the job's typical activities. For example, a given job might require a candidate to be able to lift 50 pounds. But saying in the job description “must be able to lift 50 pounds” could be interpreted by people with disabilities, smaller people, and some women to mean “this job excludes you.”</li><li> So rather than positioning this as a required skill, <a href="http://hr.umich.edu/oie/Avoiding-Discrimination.pdf" rel="noopener noreferrer" target="_blank">The University of Michigan suggests</a> explaining candidates will be "routinely moving audio/visual equipment weighing up to 50 pounds…." This makes it clear that the chosen employee may be asked to perform this task, but doesn't exclude certain applicants.</li><li>Be mindful of any skills or requirements that may describe someone's character or physical ability. Re-read the skills listed on the job application. If any of them could be interpreted as characteristics or physical abilities — such as "a mature person," "able bodied," "young at heart," or "recent college graduates" — rephrase or delete it!</li><li>Read <a href="http://www.eeoc.gov/laws/practices/" rel="noopener noreferrer" target="_blank">the EEOC guidelines</a> carefully. Avoid anything that refers to race, color, religion, sex, national origin, age, disability, genetic information, marital status, and pregnancy. Be careful when asking questions about financial information, as it could be discriminatory if applicants are denied based on their financial and/or credit history.</li></ul><h3>Discrimination and Workplace Activities</h3>Discrimination can happen even after an employee is hired. The EEOC outlines not only who we can't discriminate against, but also what is considered discrimination. For every single type of discrimination, <a href="http://www.eeoc.gov/laws/types/index.cfm" rel="noopener noreferrer" target="_blank">it states</a> the following:<blockquote>"The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment."</blockquote>Notice "fringe benefits." This is a vague term that can include anything from health insurance and 401K matching plans to morale activities and team bonding exercises. And it's also one of the areas where employers can most easily exclude certain individuals.Let's take team building events as an example. It’s fine to have a company softball league so long as there are other activities that, say, someone with a disability would also be able to participate in. One Halo tournament is okay, as long as other activities are inclusive of people who are less likely or unable to play video games. We need to have a diverse mix of workplace activities to ensure there's something for everyone and we aren't unintentionally offering "fringe benefits" to some employees and not others.<h3>Tips for avoiding discrimination when planning workplace activities</h3><ul><li>Make workplace activities accessible to all. A single team building event doesn’t have to be inclusive of every single interest. Our morale programs collectively need to be diverse enough so that everyone has access to similar opportunities and benefits.</li><li> </li><li>That being said, all activities should be physically accessible to everyone. For example, people with disabilities should be able to actually get to the activity.</li><li>Avoid planning activities on key religious holidays. Employees of certain faiths might not be able to participate if you host events on holy days. You can see a full list of religious holidays <a href="http://www.interfaithcalendar.org/" rel="noopener noreferrer" target="_blank">here</a>.</li><li>Be mindful of activities employees of certain faiths can't participate in. For example, some Hindus might choose to not eat beef. Many Judaism practitioners follow kosher standards that prohibit the cross contamination of certain food products. Your events need to accommodate all the religious lifestyles of your staff.</li></ul><h3>Discrimination and Workplace Policies</h3>Discrimination needs to be considered beyond just event planning. It needs to also be factored into employment policies. For example, some organizations have guidelines for appropriate workplace attire and grooming habits. However, these policies can conflict with some employees’ religious practices if it prohibits, say, wearing headscarves or having long hair.And it's not only about having policies written down. Sure, these say our organizations won't tolerate people of certain faiths, races, genders, and disabilities being victims of workplace harassment. But we need to have procedures in place so we can act on any discrimination against employees who, say, take more frequent breaks to pray or choose to marry someone of the same sex. In sum, we need to plan proactively and follow through reactively to ensure no one falls victim to a hostile work environment.<h4>Tips for avoiding discrimination when creating workplace policies</h4><ul><li>Allow flex time or swapping of schedules among employees. This gives parents and those of certain faiths options for missing work because of religious or childcare obligations.</li><li>Develop a clear process for handling harassment. Just creating a procedure isn't enough. It also needs to be visible to everyone and constantly enforced by leadership.</li><li>Create workplace policies inclusive of religious, race, or sexual expression. Workplace attire and break policies need to be inclusive of all sorts of expressions, such as the wearing of religious attire, clothes associated with the gender employees identify with, and symbols of national origin.</li></ul><h3>So, How Do We Avoid Unintentional Discrimination in the Workplace?</h3>Workplace discrimination can creep up just about anywhere; and it won't necessarily be blatant. Sure, it's our job as leaders and policy makers to make sure we're following federal and state discrimination laws. But it's about more than just legalities. It's also about creating a workplace environment that is inclusive of all types of employees.Respect for all people has to be a daily conversation within our organizations. By developing diversity education programs and holding managers accountable for enforcing discrimination-free policies, we'll be able to create more tolerant workplaces and increase the productivity and happiness among our staff.

Ways Employers Encourage Discrimination in the Workplace without Even Knowing It

<div class="img__right">
 
 </div>
 As of January 2015, <a href="http://www.nelp.org/page/-/SCLP/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf?nocdn=1" target="_blank">14 states, Washington, D.C., and 100 cities and counties</a> have adopted Ban the Box legislation. Ban the Box laws, also called Fair Chance Policies, require businesses to remove the conviction history question on job applications and delay background checks until later in the hiring process. Because there is no federal mandate requiring the elimination of this question, each Ban the Box state, city, and county has the freedom to create its own version of the law, which can complicate and, in some cases, conflict with already established hiring laws. 

To help decipher Ban the Box legislation and its impact on the future of hiring practices, we’ve outlined why and where the law exists, variations that may appear within the law, how it impacts current policies, and tips for hiring managers.


<h4 class="h4__alt">What is Ban the Box?</h4>
Ban the Box legislation refers to removing the question from job applications that asks candidates about their criminal history. <a href="http://csgjusticecenter.org/reentry/posts/states-ban-the-box-removing-barriers-to-work-for-people-with-criminal-records-2/" target="_blank">The first state to pass such a law was Hawaii</a> in 1998, before the phrase “ban the box” existed. That came later, in the early 2000s, when an activist group called All of Us or None used the term to describe its California campaign. The phrase has been associated with the legislation ever since.


<h4 class="h4__alt">Why Does Ban the Box Exist?</h4>
The <a href="http://www.nelp.org/page/content/banthebox/" target="_blank">National Employment Law Project</a>, which promotes the Ban the Box movement, argues that the law helps support the employment opportunities of people with records, which in turn “creates safe communities, reduces childhood poverty, and strengthens families.” 

Proponents assert that the increased use of background checks excludes too many applicants from jobs for which they are otherwise qualified and is partly to blame for high recidivism numbers (when people convicted of a crime commit another offense).

One such advocate is Ari Weisbard, deputy director of the D.C. Employment Justice Center. Weisbard says about <a href="http://www.npr.org/2014/07/14/330731820/how-banning-one-question-could-help-ex-offenders-land-a-job" target="_blank">50% of people returning to society from prison re-enter the criminal justice system</a>, and employment has been shown to be one of the best ways to reduce recidivism.

The Center for Economic and Policy Research (CEPR) also supports this argument. <a href="http://www.cepr.net/documents/publications/ex-offenders-2010-11.pdf" target="_blank">In a 2010 study</a>, CEPR reported that keeping people with prison records out of the workplace caused $57 to $65 billion in annual losses for the economy. It’s estimated that one in four adults in the U.S. has an arrest or conviction record. Many of these people, however, never faced charges or had charges dropped, but because arrest records aren’t automatically removed, the charge keeps them from being considered for employment.

The movement got an additional boost from the federal government in 2012 when the Equal Employment Opportunity Commission (EEOC) <a href="http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm" target="_blank">recommended removing criminal history questions</a> from job applications. The EEOC called for businesses to reserve asking criminal history questions until later in the hiring process, and required employers to demonstrate how records’ restrictions are directly related to the job in question. It also mandated that applicants be individually assessed for positions.

<h4 class="h4__alt">Which States have Ban the Box Legislation?</h4>
The 14 states with established Ban the Box laws are:
<ul>
 <li>California</li>
 <li>Colorado</li>
 <li>Connecticut</li>
 <li>Delaware</li>
 <li>Georgia</li>
 <li>Hawaii</li>
 <li>Illinois</li>
 <li>Maryland</li>
 <li>Massachusetts</li>
 <li>Minnesota</li>
 <li>Nebraska</li>
 <li>New Jersey</li>
 <li>New Mexico</li>
 <li>Rhode Island</li>
</ul>
In addition to the 14 states and 100 cities and counties, some big-box stores with locations nationwide (<a href="http://www.startribune.com/business/229310141.html" target="_blank">such as Target and Wal-Mart</a>) have also removed the criminal history question from applications.

<h3 class="h3__alt">What Ban the Box Does — and Does Not — Require</h3>
Ban the Box laws do more than just eliminate a check box. <a href="http://www.jonesday.com/Ban-the-Box-A-Discussion-of-State-and-Local-Laws-Restricting-Inquiries-into-an-Applicants-Criminal-History-09-16-2014/?RSS=true" target="_blank">Each individual law is different</a>, but a few mandates are included in most variations. Some common elements are:
<ul>
 <li>Requirements concerning the types of convictions employers can ask about and how far back an inquiry may extend</li>
 <li>A test requiring employers to consider the nature and gravity of the offense, the time that has passed since the offense and/or completion of the sentence, and the nature of the job in question</li>
 <li>Mandates to delay background checks until later in the hiring process</li>
 <li>A condition requiring employers to notify applicants when criminal information is being used</li>
</ul>

<h4 class="h4__alt">Actions Ban the Box legislation does NOT prohibit employers from doing</h4>
<ul>
 <li>Running background checks – employers can still do this, just later in the hiring process</li>
 <li>Taking into consideration an applicant’s criminal history – by moving the question to later in the hiring process, Ban the Box advocates hope it will be just one element taken into consideration, rather than the only thing employers notice about an applicant</li>
</ul>


<h3 class="h3__alt">How Ban the Box Affects Current Hiring Policies</h3>
Every Ban the Box law is different and affects different businesses in different ways. For example, in Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, Ban the Box legislation extends to government contractors and private employers, whereas it only applies to public businesses with 10 employees or more in most other situations (exceptions include Washington, D.C. and 25 other cities and counties which also have the law).

Limitations outlined in different Ban the Box laws may also conflict with <a href="http://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reporting-act.pdf" target="_blank">Fair Credit Reporting Act (FCRA) requirements</a>. Under the FCRA, employers using third-party background check services are required to follow specific guidelines when obtaining reports on job applicants, such as obtaining applicants' written consent before running a background check on them. But without the criminal history question on applications, employers now need to find other ways to obtain applicants' written consent.

Another confusing element is that some states exempt certain job fields from Ban the Box regulations. New Jersey’s version of Ban the Box, for instance, exempts law enforcement, corrections, judiciary, homeland security, and emergency management positions. So employers filling these jobs are allowed to include a criminal history question on applications at the beginning of the hiring process.

Additional exemptions extend to fields in which an employer is legally required by the federal government to conduct a background check. This includes such areas as airport security screeners, law enforcement officers, child care workers, bank employees, and others.

Ban the Box especially poses a challenge for businesses that use the internet to gather applications and automatically exclude applicants based on criminal records, since this elimination process is forbidden by the new laws. Companies facing this situation are encouraged to use other criteria to limit the number of applications they receive, such as specific requirements based on experience or education.

<h4 class="h4__alt">5 Ways to Work with Ban the Box Legislation</h4>
<ol>
 <li>Be aware of any <a href="http://www.nelp.org/page/content/banthebox/" target="_blank">Ban the Box legislation in your state</a>, city, or county, and be familiar with the specific requirements of the law </li>

 <li>Review job applications and other documents used in the hiring process (i.e. online questionnaires) to ensure they comply with the law 
 Tip: Consider having different applications and questions relating to criminal history for different positions or job classes</li>
 <li>Ensure everyone involved in the hiring process is aware of new regulations and is trained accordingly</li>
 <li>Review what is included in background check services to <a href="/background-check-products-explained">make sure you’re choosing to run a check that doesn’t violate Ban the Box</a> regulations</li>
 <li>Contact your state’s Department of Human Rights with questions</li>
</ol>

Background checks are still very much a part of the hiring process despite the growing popularity and implementation of Ban the Box legislation. That means it’s still fully <a href="/faq/how-to-fail-background-check">possible to fail a background check</a> – it's just now there are regulations requiring employers to give all applicants a fair chance at earning the position.

To learn more about laws employers need to follow, check out this resource that outlines <a href="/faq/employment-background-check">what an employment background check entails</a>.

How Ban the Box Legislation is Changing Hiring Practices

<div class="img__right">
 
 </div>
 
 You'd think interviewing should only be nerve-wracking for the job seeker, not the question asker. But that’s not always the case. Many hiring managers are unaware of just how many “wrong” questions they can ask an applicant — and by wrong, we mean illegal. 

 That’s right: There are a whole host of seemingly innocent questions that are actually very much off limits for supervisors to ask potential employees. The good news is there are also many legal interview questions that can be used to get any touchy information needed to make smart hiring decisions. We’ll discuss both areas below, as well as provide a list of illegal interview questions and their legal alternatives to help you avoid sticky situations.


 <h4 class="h4__alt">(Surprisingly) Illegal Interview Questions</h4>
 What makes an interview question illegal is determined by the U.S. Equal Employment Opportunity Commission (EEOC) in the <a href="http://www.eeoc.gov/laws/statutes/titlevii.cfm" target="_blank">Title VII of the Civil Rights Act of 1964</a>. Title VII states that it is illegal for employers to ask about a person’s age, race, gender, national origin, religion, sexual orientation, disability status, and marital status in any pre-employment stage: online applications, surveys, interviews, etc. 

 The law also makes it illegal to ask questions regarding pregnancy status, if applicants have children, questions regarding arrest records, or military discharge status. These rules apply to everyone you’re thinking of bringing into your company, including temporary workers, interns, part-time and contract workers, and full-time employees.

 The guidelines seem straightforward enough, don't ask questions like, "Are you married?" or "What religion do you practice?" But there are some surprising loopholes that you may not think of as illegal when creating a list of interview questions. <a href="http://www.eeoc.gov/laws/practices/index.cfm" target="_blank">Examples</a> of such illegal interview questions include:

 <ul>
 <li>What organizations, clubs, or societies do you belong to?</li>
 <ul>
 <li>Why it’s illegal:: The applicant's answer could indicate race, sex, national origin, disability status, age, religion, color, or ancestry</li>
 </ul></ul>
 <ul>
 <li>Please include a photo ID with your application.</li>
 <ul>
 <li>Why it’s illegal: It could indicate race, age, or other factors </li>
 </ul></ul>
 <ul>
 <li>Have you had any recent health problems?</li>
 <ul>
 <li>Why it’s illegal: Medical information can’t be asked about until you offer someone a job, per <a href="http://www.eeoc.gov/eeoc/publications/background_checks_employees.cfm" target="_blank">EEOC regulations</a></li>
 </ul></ul>
 <ul>
 <li>Do you have any disabilities that would affect your work?</li>
 <ul>
 <li>Why it’s illegal: It's illegal to ask about someone's disability status</li>
 </ul></ul>
 <ul>
 <li>Have you ever been arrested?</li>
 <ul>
 <li>Why it’s illegal: You need to give an applicant written notice that a background check into his or her criminal record will be conducted, according to the <a href="http://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reporting-act.pdf" target="_blank">Fair Credit Reporting Act</a></li>
 </ul></ul>
 <ul>
 <li>Tell me about your family.</li>
 <ul>
 <li>Why it’s illegal: The answer could indicate race, national origin, age, color, ancestry, marital status, sexual orientation, or if the applicant has children</li>
 </ul></ul>
 <ul>
 <li>Where were you born?</li>
 <ul>
 <li>Why it’s illegal: The answer could indicate race, national origin, color, or ancestry</li>
 </ul></ul>
 <ul>
 <li>Did your parents also attend that university?</li>
 <ul>
 <li>Why it’s illegal: The answer indicate race, national origin, age, color, or financial history</li>
 </ul></ul>
 <ul>
 <li>We give employees the following holidays off. Are there any holidays you celebrate that aren’t included?</li>
 <ul>
 <li>Why it’s illegal: The answer could indicate was religion an applicant practices</li>
 </ul></ul>
 <ul>
 <li>I notice you have an accent. Is English your first language? (Or: Where are you from?)</li>
 <ul>
 <li>Why it’s illegal: It’s illegal to ask a job applicant about U.S. citizenship before making an offer of employment, according to the <a href="http://www.eeoc.gov/laws/practices/inquiries_citizenship.cfm" target="_blank">Immigration Reform and Control Act</a></li>
 </ul></ul>
 <ul>
 <li>School’s pretty pricey nowadays; do you have any outstanding debt?</li>
 <ul>
 <li>Why it’s illegal: You need to give the applicant a written notice that a background check into his or her credit history will be conducted, according to the Fair Credit Reporting Act</li>
 </ul></ul>
 <ul>
 <li>We go out for a lot of happy hours here. Do you enjoy going out?</li>
 <ul>
 <li>Why it’s illegal: The applicant could be a recovering alcoholic, which is considered a disability; thus you'd be violating the <a href="http://www.ada.gov/q&aeng02.htm" target="_blank">Americans With Disabilities Act of 1990</a></li>
 </ul></ul>
 <ul>
 <li>Do you rent or own a home?</li>
 <ul>
 <li>Why it’s illegal: The answer indicate financial status and violate the Fair Credit Reporting Act</li>
 </ul></ul>

 Some of these things are important to know, however, and need to be addressed before a job offer can be made. For example, if a job at a nursing home requires someone to work Saturday evenings, an Orthodox Jew would be unable to meet the job’s requirements due to the Sabbath. Or if a factory job requires workers to lift heavy loads throughout the day and a person has a disability, they similarly would be unsuited for the job. 

 So how does someone go about getting this “forbidden” information without asking?


 <h4 class="h4__alt">Legal Interview Questions</h4>
 Fortunately, there are different — legal — ways to obtain these facts. Here’s a list of legal interview questions that can be used to get at the information you need:
 <ul>
 <li>What are the hours you’re available to work? </li>
 <li>Do you have any responsibilities that may interfere with your ability to travel (or a different, specific job requirement)? </li>
 <li>How many languages do you speak fluently?</li>
 <li>Are you available to work on Saturday evenings or Sundays?</li>
 <li>Have you ever been convicted of a crime?</li>
 <li>Can you perform the job’s essential functions with or without reasonable accommodation?</li>
 </ul>

 By using rewording techniques to ask tough questions, you won’t be breaking the law and you’ll still get the information necessary to make a smart hiring decision.


 <h4 class="h4__alt">Background Checks and the Interview Process</h4>
 Although it may seem like there’s a lot you can’t ask potential employees, you can still gather quite a bit of information about them. All sorts of background information is still fair game during the hiring process: employment history, education, criminal record, use of social media, etc. And unless you’re asking for medical or genetic information, it's also legal to require <a href="https://www.criminalwatchdog.com/faq/types-of-background-checks" target="_blank">background checks</a>.

 It’s important to know, though, that when asking about someone’s background, the same laws still apply. You can’t treat someone differently due to race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age. It is also illegal to ask for extra background information because someone is a certain race or ethnicity.

 That said, if you do decide to <a href="/criminal-background-check">run background checks on potential employees</a>, there are two things to keep in mind: First, you’ll need to get written permission from the person before getting the report. 

 Second, if you decide you might not hire someone based on something in the report, you <a href="http://www.eeoc.gov/eeoc/publications/background_checks_employees.cfm" target="_blank">are required</a> to give the person a copy of the report and a "notice of rights" that tells them how to contact the company that made the report. This is because background reports are sometimes inaccurate and, according to the EEOC, the applicant in question should be given a chance to correct the error. If the applicant sees a mistake in the report, he or she can ask the background reporting company to fix it and send a copy of the corrected report to you. You can decide how to proceed from there.

 You can learn more about the <a href="/faq/employment-background-check">type of information employers can obtain through a background check here</a>.


 <h4 class="h4__alt">Next Steps</h4>
 Before making any hiring decisions, <a href="/resources/employment-law/hiring-interns-yeah-theres-a-law-for-that/">whether for interns</a> or full-time employees, it’s a good idea to familiarize yourself with the above information as well as the other areas covered by the <a href="http://www.eeoc.gov/laws/practices/index.cfm" target="_blank">EEOC’s Prohibited Employment Policies/Practices</a> page. There are (unfortunately) many <a href="http://www.criminalwatchdog.com/resources/employment-law/ways-employers-encourage-discrimination-in-the-workplace/" target="_blank">ways in which discrimination can accidentally take place</a>, but by preparing for interviews and using the above list of legal questions — as well as having documents requesting background checks ready to go — interviews can be easy, smooth, and perhaps even enjoyable. 

 </ul>

List of Illegal Interview Questions Supervisors Should Never Ask

Getting to know the thousands of standards and regulations set by OSHA can be extremely daunting for HR professionals and business leaders, but we’re required by law to comply with them (and we can't <a href="http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm02012.htm" rel="noopener noreferrer" target="_blank">claim ignorance as our defense</a> in law proceedings).OSHA isn’t just for high-risk workplaces — violations happen every day in offices, medical practices, retail outlets, and leisure facilities all across the U.S. Blocked sprinkler heads, furniture obstructing fire exits, paper left near heat sources…these are all violations that can happen in any workplace.This guide is intended to provide a quick overview of OSHA and answer some of the most frequently asked questions about OSHA laws.<h3>First, What is OSHA?</h3>The Occupational Safety and Health Administration (<a href="https://www.osha.gov/" rel="noopener noreferrer" target="_blank">OSHA</a>) is the main federal agency responsible for the enforcement of safety and health legislation in all workplaces.It sets workplace safety and health standards (either on its own initiative or in response to petitions from other parties) using a <a href="https://www.osha.gov/OSHA_FlowChart.pdf" rel="noopener noreferrer" target="_blank">rulemaking process</a> that includes public hearings about potential standards, which allows employers to help shape them. In addition to setting these standards, OSHA also makes sure we follow them by carrying out a variety of enforcement activities, which include onsite inspections conducted without advance notice. These inspections are usually carried out on a priority basis, with precedence given to:<ul><li><a href="http://safety.nmsu.edu/resources/forms/OSHA-imminent-danger-factsheet.pdf" rel="noopener noreferrer" target="_blank">Imminent danger</a>, such as an unstable building or the presence of toxic substances</li><li> </li><li>Catastrophes/fatalities</li><li>Worker complaints and referrals</li><li>Severe violations, such as hazards that could result in death or serious injury</li><li>Targeted inspections are also carried out at workplaces where there are an unusually high number of reported injuries or illnesses.</li><li>It’s also up to OSHA to ensure safe and healthful work environments for employees by providing training, outreach, education, and assistance to both employers and workers. The aim of these programs is to help broaden knowledge on the recognition, avoidance, and prevention of safety and health hazards in the workplace.</li></ul><h3>Which are the Most Commonly Violated OSHA Guidelines?</h3><ul><li>At the end of October last year, OSHA released a <a href="https://www.osha.gov/Top_Ten_Standards.html" rel="noopener noreferrer" target="_blank">list</a> of the 10 most frequently cited standards following inspections of worksites. We’ve included the first five from that list here, along with a brief description of the relevant OSHA guidelines relating to these standards. We’ve also linked to the appropriate pages on the OSHA website which go into further detail.</li></ul><ol><li><a href="https://www.osha.gov/SLTC/fallprotection/" rel="noopener noreferrer" target="_blank">Fall protection</a></li><li> Falls are one of the most common causes of serious work-related injuries. OSHA standards require that fall protection (such as guards, toe boards, handrails, and harnesses) to prevent falling from overhead platforms and elevated work stations when working at heights of more than four feet in general industry workplaces, and at six feet in construction.</li><li class="ql-indent-1"> In most workplaces, fall protection will mean more common slip and trip prevention. Violations include improper use of mats or signs when spillages occur or rain is tracked inside; as well as damaged, warped, or uneven flooring.</li><li><a href="https://www.osha.gov/dsg/hazcom/whatishazcom.html" rel="noopener noreferrer" target="_blank">Hazard communication</a></li><li> Chemicals pose a wide variety of health and physical hazards, and not just in manufacturing and construction. In general industry workplaces, hazardous chemicals could include cleaning chemicals and some chemicals commonly used in printing, and these should be treated with the same precaution as industrial hazards.</li><li class="ql-indent-1"> OSHA’s Hazard Communication Standard is designed to ensure that information about these hazards and protective measures are distributed appropriately. This means putting up appropriate signage, making sure chemicals are stored correctly in properly labeled containers, and training staff on their appropriate use.</li><li><a href="https://www.osha.gov/SLTC/scaffolding/" rel="noopener noreferrer" target="_blank">Scaffolding</a></li><li class="ql-indent-1"> Most scaffold-related injuries result from either the planking or support giving way, slipping, or being struck by a falling object. OSHA’s standards to prevent this happening include height restrictions, weight limits, fittings, restraints, and supports. Workplaces in all industries undergo construction, so if there's scaffolding, proper care needs to be taken to ensure OSHA guidelines are met.</li><li><a href="https://www.osha.gov/SLTC/respiratoryprotection/" rel="noopener noreferrer" target="_blank">Respiratory protection</a></li><li> In industrial workplaces, respirators protect workers from insufficient oxygen and harmful dusts, fogs, smokes, mists, gases vapors, and sprays, and providing necessary respirators could avert hundreds of deaths and thousands of illnesses every year.</li><li class="ql-indent-1"> However, ensuring that everyday work environments have access to safe, clean air is also imperative. Indoor air quality is of the utmost importance, and violations could include overly humid environments, poor ventilation, mold from water damage, and exposure to other chemicals (including asbestos).</li><li><a href="https://www.osha.gov/SLTC/poweredindustrialtrucks/" rel="noopener noreferrer" target="_blank">Powered industrial trucks</a></li><li class="ql-indent-1"> Powered industrial trucks (forklifts) present a variety of operating hazards, including falling load accidents, pedestrian safety, and crashes and falls of the truck itself (off a dock, for example). OSHA requires that powered industrial truck drivers are over 18 years old and properly trained and certified to operate these vehicles.</li></ol><h3>Frequently Asked Workplace Safety Questions</h3><ul><li>The OSHA website answers many <a href="https://www.osha.gov/OSHA_FAQs.html" rel="noopener noreferrer" target="_blank">frequently asked questions</a>, and those particularly relevant to HR managers and business leaders in the everyday workplace have been expanded upon here.</li></ul><h4>Is workplace violence covered by OSHA?</h4><ul><li>"Workplace violence" is violence or the threat of violence against workers, and can range from threats and verbal abuse to physical assaults and homicide. Homicide is one of the leading causes of job-related deaths, according to the <a href="http://www.cdc.gov/niosh/docs/93-109/" rel="noopener noreferrer" target="_blank">CDC</a>, and some workers operate at a greater risk than others, such as those working alone in areas with a high crime rate, or those transporting goods or cash.</li><li>Under the <a href="https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&amp;p_table=OSHACT" rel="noopener noreferrer" target="_blank">General Duty Clause</a>, the Occupational Safety and Health Act of 1970 states that employers “shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to his employees.”</li><li>While OSHA does not include a specific regulation addressing workplace violence, the courts have interpreted OSHA's General Duty Clause to mean that we have a legal obligation to provide a workplace free of conditions or activities that are recognized as hazardous when there is a feasible way to do so. This means courts are increasingly holding us liable for our employees’ violent and dangerous behavior if it’s deemed that we didn’t take appropriate action to prevent the harm. This is known as negligent hiring.</li><li>Negligent hiring involves a claim that an employer had reason to believe, or could have determined by reasonable investigation, that the applicant was dangerous but hired him or her anyway. This means that when negligent hiring results in the injury of another, the risk of harm is considered “foreseeable.”</li><li>As well as using OSHA’s workplace violence prevention <a href="https://www.osha.gov/SLTC/workplaceviolence/evaluation.html" rel="noopener noreferrer" target="_blank">programs</a> for evaluating and controlling violence in the workplace, the best method of defense against being found liable for negligent hiring is carrying out a pre-employment screening process that includes a <a href="https://www.criminalwatchdog.com/faq/employment-background-check" rel="noopener noreferrer" target="_blank">thorough background check</a>. Once hired, it's our job to keep an eye out for potential workplace violence. The Minnesota Department of Labor and Industry’s <a href="http://www.doli.state.mn.us/WSC/PDF/WorkplaceViolencePreventionGuide.pdfhttp:/www.doli.state.mn.us/WSC/PDF/WorkplaceViolencePreventionGuide.pdf" rel="noopener noreferrer" target="_blank">Workplace Violence Prevention Guide</a> contains suggestions for how to identify the risk factors and symptoms of workplace violence, specifically when carried out by employees.</li></ul><h3>What are the penalties for violating an OSHA standard?</h3><ul><li>Under the Occupational Health and Safety Act, we, as employers, are <a href="https://www.osha.gov/as/opa/worker/employer-responsibility.html" rel="noopener noreferrer" target="_blank">responsible</a> for ensuring a workplace is safe and not hazardous to our employees’ health.</li><li>The maximum penalty OSHA can fine a business is $7,000 for each serious violation, such as a failure to require employees carrying heavy loads to wear steel-toe boots, and $70,000 for a repeated or willful violation, such as when the failure to implement proper precautionary measures results in death or serious injury.</li></ul><h4>What injuries and illnesses are we required to report to OSHA?</h4><ul><li>OSHA requires that any work-related fatality is reported to them within eight hours. All work-related, in-patient hospitalizations, amputations, and losses of an eye should be reported within 24 hours.</li><li>This can be done by calling 1-800-321-OSHA (6742), by calling into your <a href="https://www.osha.gov/as/opa/worker/employer-responsibility.html" rel="noopener noreferrer" target="_blank">nearest OSHA office</a> during normal business hours, or <a href="https://www.osha.gov/report_online/index.html" rel="noopener noreferrer" target="_blank">reporting it online</a>.</li></ul><h4>How do we keep up to date with new OSHA regulations or changes to current ones?</h4><ul><li>To find out about changes to OSHA regulations or when new ones are issued, the best thing to do is to <a href="https://www.osha.gov/as/opa/quicktakes/subscribe.html" rel="noopener noreferrer" target="_blank">subscribe</a> to OSHA’s e-newsletter, QuickTakes.</li><li>It’s a free, twice-monthly publication that provides all of the latest news about OSHA initiatives so that we’re able to find and prevent workplace hazards.</li></ul><h4>Does OSHA stipulate how many consecutive hours employees are allowed to work?</h4><ul><li>Surprisingly, OSHA doesn’t have any specific regulations on long working hours, and the Fair Labor Standards Act (<a href="http://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=322&amp;faqsub=Work+Hours&amp;faqtop=Wages+%26+Work+Hours&amp;topicid=1" rel="noopener noreferrer" target="_blank">FSLA</a>) also doesn’t limit the number of hours per day or per week that employees aged 16 or older can be required to work.</li><li>Some <a href="http://www.dol.gov/whd/state/rest.htm" rel="noopener noreferrer" target="_blank">states</a>, however, do have break regulations. For example, California requires a paid, 10-minute rest period for each four hours worked (as well as a half-hour meal period after no more than five hours). Others require a minimum length of meal period based on the amount of time worked, and these can be found on the DOL <a href="http://www.dol.gov/whd/state/meal.htm" rel="noopener noreferrer" target="_blank">website</a>.</li></ul><h4>Is OSHA training mandatory?</h4><ul><li>The <a href="https://www.osha.gov/dte/outreach/index.html" rel="noopener noreferrer" target="_blank">OSHA Outreach Training Program</a> is voluntary, and provides education for workers and employers on the recognition, avoidance, abatement, and prevention of safety and health hazards in the workplace.</li><li>However, many standards set by OSHA explicitly require us to train employees in the safety and health aspects of their job, and others require that we limit the responsibility for certain tasks to employees who are certified, competent or qualified. Therefore, it’s a good idea to get this training to make sure we’re providing the correct information.</li></ul><h3>Takeaways</h3><ul><li>It's our responsibility as HR professionals and business leaders to provide a safe work environment. OSHA is the governing body that makes sure we do so, whether we work at a big construction site or a two-person office</li><li>It’s also important to remember that OSHA wants us to be successful in our efforts to provide a safe workplace. It doesn't exist just to penalize us — it also provides us valuable resources for keeping our employees out of harm's way.</li><li>To find out more about how you can protect your employees and your business, check out our frequently asked questions.</li></ul>