Ask a Lawyer // June 2018 // Ban the Box, Supreme Court & Arbitration Agreements, Lessons from Rosanne Barr and Samantha Bee

As I sat to write this month’s column, I thought no matter how creative designers are, how fantastic our clients may be, designers are still running a business with all the lovely problems that come up that keep me, as a lawyer, employed. But, while the law matters, I know that designers must contribute to a business, either as owners or as employees. In an industry where creativity is the cornerstone of success, designers must look for inspiration and creativity where they can find it. Of course, the problem is that the law sometimes makes that hard.

One of the purposes of AIGA’s Diversity & Inclusion Initiative is to create an industry that includes and respects everyone. Aside from the legal and moral obligation of fairness, having a company that is inclusive and respectful helps your business grow because creativity can tap into so many different viewpoints. A reputation for fairness and inclusion helps you attract high quality talent. With high quality talent, you then can attract high quality clients because your shop’s work product reflects more than one point of view because you have tapped diverse knowledge and experience. In short, Diversity & Inclusion is good for business.

The first step in any inclusion effort is to create the atmosphere, which begins and ends, with company leadership. Then the leaders find good people.

So, my issue this month is on human resource matters and employment law. I know, it is not as sexy as contracts (okay, most you probably don’t think contracts are sexy), but keeping up with employment law developments remains important for anyone running any business or who is employed in a business—so, yeah, everyone.

Ban the Box

What if I told you that there is a whole class of people out there routinely discriminated against? What if I told you this class covers all races, all genders, all ages, and all national origins? What if I told you that many of these people get discriminated against for maybe one single mistake that has nothing to do with their creative talent?

That class-—people with a criminal conviction.

As part of my pro-bono work, I work with and have represented men (all men so far), who have had run-ins with the law and were often convicted of felonies for drug possession, drug use, theft, and other crimes caused in part by PTSD and addiction. These criminal convictions, often low-level felonies not involving violence, often prevented these men from getting jobs due to their criminal past, despite the fact that they are now sober, dedicated to their recovery, and often have marketable skills.

Ban the Box refers to the box that used to appear on all employment applications that asked about a criminal conviction history for applicants. Despite laws against discrimination, the Box became an easy way for employers to deny employment opportunities to those with criminal convictions, which in turn, led to several societal problems like recidivism and even contributes to poverty and other social ills. Eleven states and thirty-one municipalities have now passed legislation to “Ban the Box” in the application process for private employers.

Employers in Ban the Box states and cities can still conduct a pre-employment criminal background check after a conditional employment offer has been made. So, if a criminal history is relevant to the job (for example bank tellers or people working with children), employers can and are often required to conduct background checks. The trick is that the criminal background check must be related to the job or required by law.

Now, Ban the Box does not absolve an employer from being smart and reasonable about who they hire, what they assign workers to do and to adequately supervise workers. The truth is that many former felons have turned their life around (0r are trying to) and should have the same opportunity as anyone else. You can conduct a background check and you can even withdraw a conditional employment offer if the criminal conviction is related to the job (convicted embezzlers handling money is probably not a good idea). But if the criminal conviction is not related to the job, each employer still has the obligation to hire with reasonable consideration and to reasonably supervise people, just as you would with any employee. Ban the Box just encourages companies to look beyond the criminal conviction.

The Supreme Court and Arbitration Agreements

A couple of weeks ago, the Supreme Court handed down a decision related to arbitration clauses in employment agreements. Essentially, the Supreme Court held that if an employer and employee entered into an arbitration agreement that said the employee had to arbitrate his or her claims individually as opposed to a class action with other similarly situated employees, then that arbitration agreement had to be upheld on its terms. The Court has a long analysis, which I discussed here.

Generally, I don’t like arbitrations for a variety of reasons. While a lot of media and worker-friendly outlets bemoaned this decision, I don’t think it should have the effect so many people fear. While the Supreme Court said arbitration agreements will be enforced as written, I don’t encourage employers to embrace them wholeheartedly. Such policies appear quite one-sided to employees and that perception is important. Even though employment arbitration is not as particularly employer friendly as people believe, having a perception in the marketplace that your company is a bit totalitarian on this matter does not help you attract top quality talent. In a tightening labor market, any negative mark on your reputation as an employer is hard to overcome.

So what should employers do? First, be sure to create an atmosphere where employees can have their concerns addressed proactively. In short, be a place where people want to work. Second, I understand the desire to avoid lawsuits, so mediation is everyone’s best friend. Unlike an arbitrator or a judge, who must pick a winner in every case, a mediator’s success is in settling differences. A mediator works the problem and their reputation is based on the percentage of cases the mediator works that settle. A great mediator gets better than 95 percent of the cases they see to settle. Mediation is private and usually cost effective.

What do arbitration agreements have to do with diversity and inclusion. Well, fair enough, not much. But the goal of any employer is to create an atmosphere of openness and respect for employees. What kind of message does it send when you present arbitration agreements that seem punitive and one-sided. People will start to look elsewhere.

Lessons of Rosanne Barr and Samantha Bee

I am not going to address or debate what each celebrity said, the forum in which they said it, or discuss here the propriety of either statement. If you want to buy me a beer and dinner I am happy to discuss these cases and their merits. There are enough similarities and differences, and applicability of law and privacy, the constitution, etc. that a polite discussion could last for a seven-course meal and a lot of after dinner drinks.

But this is not the forum for that discussion. What is important is how can employers address matters of discrimination and harassment. Company leadership plays and important role in preventing discrimination and addressing discriminatory actions by idiots (and believe, even today, I come across idiotic behavior as counsel to companies). The tone of leadership and the seriousness with which an employer addresses claims of harassment and discrimination go far in preventing such behavior.

The Equal Employment Opportunity Commission compiled big fancy report on harassment and discrimination in the Workplace in 2016. Like most government writing, it is a wonderful cure for insomnia, but the EEOC did compile four very helpful checklists and one informative chart of risk factors for employers. I urge employers to look carefully at the risk factors chart and engage with counsel or qualified human resources consultants to assess their risks. As I said before, you cannot stop stupid, but you can make sure that everyone knows how you as a business owner will handle stupid. The EEOC can help you create policies that are fair and can be enforced consistently.

The Big Takeaway. Every designer has told me repeatedly, inspiration comes from almost any source. Design firm leaders look to create inspirational atmospheres. Create a workplace that inspires your employees. Foster inclusion and respect. Look to new sources for new people to inspire your work and their work. Remember what said in the last section about tight labor markets? Well it applies here as well. An inclusive and respectful workforce will be a boon to your business.

For more information, or to ask a question or twenty, please consult an attorney.


BIO Disclaimer

MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.

THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.

By Matthew S. Johnston
Published June 5, 2018
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