Pacific Bell’s hiring policies and procedures require a detailed criminal history of any employee who will have unsupervised access to customers’ homes. Pacific Bell obtained the criminal history of an employee, Josephs, three months after hiring him as a service technician. Josephs was fired after an investigation confirmed that he had been convicted of misdemeanor battery on a police officer, had been found not guilty of attempted murder by reason of insanity, and had been committed to a mental institution for two and a half years. He then sought reinstatement and was denied.

In the lawsuit that followed, the jury found that Pacific Bell refused to reinstate Josephs because of his perceived mental illness rather than for his dishonesty on his employment application or his past violent acts. Witnesses revealed that Josephs’ immediate supervisor recommended him for reinstatement, and that his recommendation was rejected in order ensure the company did not employ someone that had “an emotional dysfunction” which might cause violent behavior. Management employees expressed reservations about Josephs relating to his perceived mental health —a general manager feared that someone with Josephs’ background might “go off” on a customer and a vice president stated the company could not have people who had been released from a mental institution out in the field.

Both the jury and the appeals court rejected Pacific Bell’s argument that Josephs’ past violent acts made him unqualified for a service technician position. Josephs had held a similar position for ten years following his release from the mental institution. Pacific Bell had also reinstated three other service technicians who failed to disclose their criminal convictions, including one with a felony conviction for domestic violence. Finally, Pacific Bell had no written company policy prohibiting the employment of persons who had committed violent acts. As stated by the court, the evidence “simply [did] not compel a conclusion that, in the eyes of PacBell, Josephs was not qualified for the service technician position because of his past violent acts.” (Josephs v. Pacific Bell).

The court’s decision highlights the importance of adopting and following proper policies and procedures for due diligence in hiring. The employment attorneys at Simpson, Garrity & Innes, PC can provide assistance in formulating hiring policies and procedures. However, only you can ensure that those policies are followed.

The regulations became effective February 6, 2006; however the OFCCP will not enforce the rule until April 5, 2006, so long as employers can meet two conditions: (1) the employer demonstrates that it is taking reasonable steps to update its systems to comply with the rule, including a projected date of compliance, and (2) the employer collects and maintains records according to the established procedures consistent with OFCCP’s recordkeeping requirements that preexisted the Internet Applicant final rule.

Under the rule, an “Internet Applicant,” is an individual that meets the following criteria:

1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;


2. The contractor considers the individual for employment in a particular position;


3. The individual's expression of interest indicates the individual possesses the basic objective qualifications for the position; and


4. The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

The new applicant rule applies to recruitment efforts in which the contractor accepts “expressions of interest” (applications, resumes, letters requesting consideration for hire) through the Internet and related technologies, such as e-mail, commercial and internal resume databanks, and employer’s own website. It also applies if the contractor uses databases to search for candidates from folks who post their resumes online at such sites as Craig’s List and Monster. Where the contractor does not use the Internet or related technologies, and does not accept any electronic submissions/applications, the existing recordkeeping standards apply. However, if a contractor accepts “expressions of interest” from Internet (or related technologies) as well as from paper applications, the Internet applicant rule applies. Simply put, for all such applicants, the contractor must maintain all resumes/applications, must provide a system for self-identification of race, and must maintain applicant flow. Putting that goal into practice, however, requires a plan.

What To Do

• Draft position descriptions to include all necessary qualifications (experience and education).
• Draft a policy/procedure defining “Applicant” as narrowly as possible to minimize the burden of recordkeeping.
• Review your Internet and related technology applications, website and recruitment sources. Does your application have an electronic tear off sheet or other procedure for self-identification? Do you have some other system for self-identification?
• Check your storage capability – records should be kept for 4 years. This includes internal and external databases.
• Visit the OFCCP’s compliance page at: http://www.dol.gov/esa/ofccp/index.htm and its frequently asked question page located at: http://www.dol.gov/esa/regs/compliance/ofccp/faqs/iappfaqs.htm
• Contact Paul V. Simpson, Ronald F. Garrity, Laura E. Innes, or Marc L. Jacuzzi at SIMPSON, GARRITY & INNES, PC. (650) 615-4860

In this case, the employee, Bagwell, worked as a network operation engineer for a start-up internet service provider, Florida Broadband. Bagwell claimed he routinely worked 50 to 60 hours per week and was entitled to overtime pay.

The court disagreed with Bagwell and decided that he was an exempt employee under both the administrative and professional exemptions. Under the administrative exemption, Florida Broadband proved his primary duty consisted of office work “directly related to management policies and/or general business operations” of Florida Broadband or its customers, and that his work required the exercise of “discretion and independent judgment.” Under the professional exemption, Florida Broadband proved he exercised discretion and independent judgment in the course of his duties, and that his primary duty consisted of work requiring the “theoretical and practical application of highly-specialized knowledge . . .”.

The court decided that Bagwell’s position, which required him to determine the nature of various network problems and develop solutions to those problems, involved the exercise of “discretion and independent judgment” required under both tests. As a network operation engineer, Bagwell wrote specifications for routers and switches, designed and approved installations of cabling infrastructure, and approved site installations of infrastructure and equipment. His primary duties consisted of developing, improving and making the network system function reliably. Since the performance of his primary duties both “directly related to management policies or general business operations of the employer or employer’s customers” and required the application of highly-specialized knowledge, and his salary met the minimum requirements of both exemptions, he qualified for both the administrative and professional exemptions. (Bagwell v. Florida Broadband).

Of course, California law adds still further intricacies to the exemption analysis. Most notably, in California, the “primary duty” test requires the employee to spend at least 50% of his/her time doing the exempt tasks. The 50% rule was not applied in this Florida case.

The opinion involved two African-American superintendents at a poultry plant operated by Tyson Foods who were passed over for promotions by two white males. The Tyson plant manager, who made the disputed promotion decisions, had occasionally referred to each of the two African-American superintendents as “boy.” A lower appeals court stated that the word “boy” alone was not evidence of discrimination.

The Supreme Court disagreed, explaining that while the word “boy” is not always evidence of racial animus, “it does not follow that the term, standing alone, is always benign.” The Court decided that when proving discriminatory intent, it is necessary to consider the context, including inflection, tone of voice, local custom and historical usage of words. Further, the Court decided that requiring modifiers or qualifications in all instances to make the word “boy” evidence of bias is not necessary.

This case should remind employers that insensitive remarks by decision-makers can be used as evidence of discrimination. Where the remarks by a decision-maker are closely connected in time and place to an adverse employment decision, and the context of the remarks gives them a discriminatory meaning, it is unlikely a court will interpret them as “stray” or meaningless. The remarks, in other words, will have legal significance.

What To Do

1. Sensitize decision-makers, managers and employees about the subtleties of language. The word “boy” in most contexts is not discriminatory or insulting. However, when used by a white manager about an African-American subordinate, the word can become an epithet.
2. Impress upon decision-makers and managers that what they say and do reflects directly on the Company. Most employees believe that what decision-makers and managers say and do is the same as what the Company says and does.
3. Word challenges can easily arise in sexual harassment cases. Monitor the way in which your employees use modern speech -- for example how do your employees use ordinarily innocent words like “baby” and “mama?” Context is everything.
4. Discrimination is no laughing matter -- there is no defense for “just kidding.”