DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

Hiring An Attorney Who Is Tough, Smart & Knows the Law

Samuel Eugene SpitalDo you or someone you know have a professional or occupational license and facing an investigation or charges by the State of California? Are you seeking a professional or occupational license? Have you considered your future endeavors and how the potential outcome of the present situation can adversely impact the choices you may later have and/or want to make?

Whether it appears to be only a call or letter from the government, you want to be certain as to your rights and possible liabilities, and you want a lawyer who is tough, smart and knows the law. Clearly, anyone who has had such an encounter knows what might seem an innocent and non-adversarial communication from the government or an investigator can be just the opposite. It is not about “telling the truth because you have nothing to hide.” Rather, what you say can be misinterpreted and might constitute an admission against your interest (in law – it can be construed as a confession).

Hence, whether you are applying for a license or have one, the risks as well as rewards can be substantial. If you have received an Accusation by the Board or Agency that issued your license or you are planning to apply for a state license or have received a denial letter, it is indisputably a defining moment in your career and, therefore, should be treated as a critical event that justifies obtaining truly experienced counsel.

The intent and scope of legal services should be to provide you with a full and proper evaluation of your case, as well as to afford you legal advice as to your rights, as well as your legal, and financial (and perhaps emotional) exposure, including the alternatives that are available. In addition, to protect you from an otherwise powerful state government and on your personal behalf to level the playing field, you also want an attorney who will fully assess and rightfully advance your legal rights.

A prominent attorney is able to maintain such a position by him/her having integrity, as well as being fully experienced and highly skilled in presenting thorough legal arguments that are not only comprehensive, but most importantly are both in writing and legally sound. This  takes more than an idle analysis, but rather proper research; detailed planning of the strategy in a case; it involves an exhaustive review of all of the facts; a wise and accurate evaluation of the records; correctly interviewing lay and knowledgeably conferring with expert witnesses who are highly regarded in the profession; eventually, the proper foundation and scrutiny must be accomplished to truly level the playing field for the skilled and experienced lawyer to be in a position to confer with the prosecution side, persuasively argue and present as well as to negotiate and achieve a winning solution.

If a winning result is what you want, you should not expressly or implicitly place a constraint on the number of hours and time that your lawyer deems appropriate to strengthen your defense and develop a compelling offense. Clearly, you can’t afford to not do this if you are truly motivated and honestly desire to obtain a favorable outcome.

In the end, when you consult with and retain a lawyer who is tough, smart and knows the law, you are less likely to look back and wish you had done so. And, there are readily available tools to help you evaluate the criteria, such as percentage of their practice devoted to Administrative Law, years in practice, prior specialized experience, their proven success, and most importantly what other clients and leading attorneys have consistently said in the past and continue to say in the present about the lawyer you select. And, if you ultimately choose price as an overriding factor (paying the lower of retainer fees to a lawyer), it is more likely he or she will spend less time on your case. For a free consultation, call now 619.583.0350 or send an email to Sam Spital, Managing Lawyer, with a few ranges of time for him to call back. You have nothing to lose, there is no hassle, you will come away with more insights and, therefore, believe there was and is “everything to gain.”

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

How to Handle Contacts and Interviews From Government and Others?

As a mater of great concern is what to do when confronted with a telephone call from law enforcement,  a licensing Board, Bureau or Agency,  and/or an  investigator who is seeking to obtain the underlying facts,  information, details &/or answers to questions. Even more challenging is when such an individual makes an in-person contact with you. It is the considered opinion of this writer that any of these inquiries may have or produce both intended and unintended consequences.

Accordingly, there are multiple reasons we do not recommend our clients participate in any dialogue and/or series of questions and answers, without the advice of experienced legal counsel.   What may at first glance appear to be friendly and seem to not involve legal issues, may indeed produce legal exposure and liability. Seemingly innocent queries are frequently  investigations, which then turn out to be interrogations rather than interviews by others, whether by the government or an other individual.

What are some of the issues:

1) these encounters and confrontations are frequently conducted under the guise of an interview when there appears to be reasonable cause that a violation of law has taken place that puts you at risk for criminal, administrative &/or civil liability.
2) when law enforcement personnel and/or an agent thereof has not admonished you regarding your “Miranda” rights to remain silent, that what you  say may incriminate you, etc.  Then and as a result, you may not really know and understand the underlying allegations, summary of issues and, in particular not know and fully understand your rights, and innocently make a statement that is incriminating.
3) far too often, the dialogue you believed was of little or no consequence  is tape recorded.
4) the answerer is at a major disadvantage in trying to recall facts and respond when (s)he has not had a thorough opportunity to review the question(s) and all of the facts in a non-threatening environment, and hopefully with their personal attorney.
5) there is a built-in bias on the part of investigators or persons using a different title or description but conducting a search for information, facts and evidence,  that the answerer is not likely to be fully honest and  truthful because they believe the answerer has something to hide &/or they believe (s)he is equally informed of the facts of the case, and directly or indirectly is trying to be deceptive when nothing could be farther from the truth.

In summary, we recommend you confer with an experienced attorney before you engage in and or respond to any verbal or written communications from anyone (except your lawyer), whether from an investigator, enforcement personnel, analyst, government employee or staff  and/or any other law enforcement officer or agent,  as well as a former or current employer &/or their employees relating to what may be the basis of and/or lead to a violation of law, a legal problem, dispute or issue, disciplinary action,  etc.

Pharmacist Consultations Are Very Important

The California Board of Pharmacy mandates that Pharmacists provide personal consultations to individuals who are dispensed medications via a prescription when requested by the patient and in all cases if they did not previously receive the prescription and/or it was in a different dosage, form or strength.

 

In December, 2013, CVS Pharmacies entered into a settlement with the State as a result of enforcement actions by the Board of Pharmacy, and a couple of weeks ago Rite Aid paid nearly $500,000 as a monetary settlement shortly after a lawsuit was filed by the San Diego District Attorney and other Southern California and Northern California county District Attorneys.  Rite Aid did not admit liability, but in addition to the amount they paid to settle their case, they agreed to institute an internal audit and compliance program, and obey the patient consultation requirements in California.

 

The public needs to be protected and sufficiently informed when drugs are dispensed by pharmacies. Because a physician may not fully elaborate on the use of an individual medication, possible complications and adverse drug interactions, it is the pharmacist who can provide the protection the public needs so their health is safeguarded.

 

For a review of the 2014 Changes in Pharmacy Laws, click the following link: http://www.pharmacy.ca.gov/publications/14_spring_script.pdf

Deficiencies in assisted living homes to be addressed

This is an update to a previous blog post.

In response to a three-part series by The San Diego Union Tribune, lawmakers have pledged to take action and ramp up efforts so the area’s assisted living home do not fall short.

The findings from the investigation, which was done by the U-T in conjunction with the CHCF Center for Health Reporting at USC, shocked legislators. It showed that people accused of abuse and neglect are rarely prosecuted, and the maximum fines are staggeringly low.

It is inexcusable that people who abuse and neglect those that they are supposed to be caring for are not being properly prosecuted. Thankfully it has now been brought to the attention of lawmakers. This can pave the way for stronger legislation and action to protect those who are being harmed.

Proposal would give benefits to same-sex military spouses

A new proposal could give housing, health care, and other benefits to same-sex spouses of military members by the end of August. The department would also give up to 10 days of leave to personnel so they could travel to a state where they could legally marry.

It is fortunate that the military is now willing and able to provide equal benefits to everyone in its ranks. The military is a fundamental and important part of our country. The people who choose to serve and their domestic partners deserve equal rights and protection under the law if members of the military are willing to give their lives for their country.

 

Teachers challenge the New York City Board of Education

Minority teacher plaintiffs have challenged the New York City Board of Education, saying that they violated Title VII of the Civil Rights Act by requiring teachers to take a licensing exam.
The teachers argued that the test impacted minority test-takers. Caucasian test-takers passed at a higher rate, and in addition, that the test did not measure whether experienced teachers were qualified.

 

Sex offenders, criminals allowed to be counselors

The lax credentialing system in California has allowed convicted sex offenders and people with substance abuse problems to work with clients.

California is one of only two states that does not require background check on people who are registering to become substance-abuse counselors. No criminal background check is run, and in fact applicants are never asked to disclose any past trouble with the law.

An investigation run by the Senate Office of Oversight and Outcomes revealed that, since 2005, there are 23 sex offenders who have been registered or certified to work as substance-abuse counselors.

 

California Dental Board questioned after patient death

Team 10 investigated the California Dental Board and found that the board does not disclose important information to patients.

One California dentist had a patient die, but more than a month later, no information about the incident was provided by the board.

According to medical reports, the patient was in cardiac arrest when the paramedics arrived. They apparently found two pieces of surgical gauze in his airway and up to six different sedatives in his system. They took all measures possible to save his life, but were unable.

The dentist removed someone’s wisdom teeth the next day.