Uber sued over illegal background checks and employee policies

phones-signup@1x.8d8db861ab2ef63dc666a89f3e8f5135In recent months, heightened attention has been paid to the background check practices of the ride-sharing company Uber. Concerns about the safety of Uber services prompted the District Attorney’s Offices of San Francisco and Los Angeles Counties to file suit last December against Uber for misleading customers about the scope of its driver background checks. As discussed in a previous post, Uber has largely resisted efforts by legislators to mandate more intensive background checks, but the pressure continues to mount.

This pressure for enhanced background checks has raised another area of concern: the manner in which Uber conducts background checks, and the impact of its employment practices on drivers and prospective drivers.  At the end of 2014, our organizations, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and the law firm Goldstein, Borgen, Dardarian & Ho, filed a putative, nationwide class action lawsuit against Uber, based in part on its violation of federal and state background check laws.

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President promises more pardons (we think)

new_clean_presidential_seal_by_sharpwriter-d486yc8In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record.  His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more

Retention of DNA Profiles and Fingerprints — Europe and the U.S.

227002_149789751758678_3078486_nComparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S.  S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records.  As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation.  As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.

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Federal agencies urged to adopt fair hiring policies

PresSealThe National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.

The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).

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The Eternal Criminal Record

Harvard_Wreath_Logo_1.svgThe Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press.  This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed.  Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.

The book will be reviewed on this site in a couple of weeks.  In the meantime, here is the publisher’s description of it.

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Disclosure of nonconviction records may violate European Convention on Human Rights

This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri 250px-Tudor_Rose.svgcomparing criminal records disclosure policies in the United States and Europe.  The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims.  (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.)  While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights.

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Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.

Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).

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Ohio pardons provide “only forgiveness, not forgetfulness”

images.carduinalOn January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”

“Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.

As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).

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Ohio certificates remove mandatory bars to jobs and licenses

February 2, 2013 was an historic day in Ohio. The Ohio legislature added a new judicial restoration mechanism: the Certificate of Qualification for Employment (CQE). The CQE, contained in Ohio Rev. Code §2953.25, provides new hope to the 1 in 6 Ohioans who have a criminal conviction and as a result are ineligible for certain jobs and licenses because of a mandatory collateral sanction (of which there are many in Ohio law).  To date 242 Ohioans have received a CQE, and more are expected to apply when word gets around that this relief is available.

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Expungement resources now online from Papillon Foundation

143_PapillonLogo_Black.aiMost people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Read more

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