Mary Luros – Page 6 – Mary Luros for Napa City Council

How to deal with a job applicant’s past

Dear Mary, I am hiring for a new position and I’ve been researching all of the applicants online. Imagine my surprise when I found out that one of the applicants was recently charged with a pretty major offense. Can I ask him about it? If he really did it, can I pass on hiring him?

When it comes to asking questions about an applicant’s criminal history, the general rule is that you may not ask an applicant to disclose information about an arrest that did not result in a conviction.

You may ask a job applicant if they have prior convictions or whether they are currently facing pending charges, but you may not ask whether they have ever been arrested.

You are also prohibited from asking an applicant about participation in a diversion program. Diversion programs allow criminal offenders to avoid criminal charges and a criminal record, usually by educating the offender about avoiding offenses, providing restitution to victims, doing community service, and avoiding situations that may lead to future offenses.

However, there are exceptions to this rule. If someone is applying for a position in a criminal justice agency, or as a peace officer, or any position that relates to security, you may ask about an applicant’s criminal background.

If you’re running a health facility, you can ask about arrests relating to sex offenses if the job position is one where the applicant would have regular access to patients. An applicant’s character and prior conduct is relevant here because you, as the employer, are responsible for the safety and well-being of others.

If the position provides access to drugs or medications, an employer may ask about arrests involving controlled substances.

A public utility or cable company may ask about an applicant’s criminal history when the position would require the applicant to go into a person’s private home.

And finally, an employer may ask about pending criminal charges and about arrests for which the applicant is out on bail or on their own recognizance. This exception sounds like it fits with your situation.

The second part of your question is more complicated. If the conduct that resulted in an offense would indicate that the applicant is unsuitable for the position, then you may pass on hiring them. For example, if the position is for a bank teller and the applicant has a criminal record of embezzlement, not hiring them may be justified.

Whether conduct demonstrates unfitness for a position may be determined by considering the nature of the offense, the time that has passed since the conduct occurred, and the nature of the position.

An arrest alone is not evidence that a person has actually committed a crime. If the alleged conduct relates to the job, you should look at the circumstances surrounding the arrest and ask the applicant to hear their side of the story.

Once you’ve given the applicant a meaningful opportunity to explain an arrest, you should make a reasonable effort to determine whether or not that explanation is credible before you make an employment decision. Disqualifying an applicant based on an arrest only makes sense if it looks like the applicant really did engage in the offense, and that offense relates to the job.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

I’m sorry I’m thinking about cats again.

August 24, 2011
Mary Luros
Silliness
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The Internet is truly a wonderful, magical place. Only on the Internet can you be entertained literally f-o-r-e-v-e-r. Between Google, Facebook, and Youtube, you could spend your entire life watching silliness and laughing.

Youtube alone is one of the best things ever created. Do you realize Youtube was created in 2005? I can’t remember life without it. But looking back, it really wasn’t that long ago. I was in law school. That means my entire college career I didn’t have Youtube. Really? I guess I was busy with Napster anyway. Actually, I didn’t have Myspace in college either–it came later than Youtube!

Anyway, my point is that the Internet is a wonderful thing and it’s taking over our lives. Perfect case in point–the eHarmony cat lady. If you haven’t watched it yet, or you haven’t watched the Songify version, please do me a favor and watch it right now. A couple of days ago my niece got stung by a bee and when I asked her if there was anything at all I could get for her, she replied “cat song,” and made me play the bottom video FIVE TIMES in a row.

What can I say, it’s catchy. Watch this video first, which is allegedly a woman’s eHarmony profile video. It’s funny enough on its own, but the Songify version below it is HILARIOUS and you will have it in your head for at least a week.

Drafting a letter of intent

Dear Mary, I read your last column about letters of intent and I think I need one for a deal I’m working on. Should I write it, or can they write it? What should it contain?

When discussing letters of intent, the first question should be who will draft the letter. Sometimes it’s easier to carefully review a letter; other times it’s more cost-effective to prepare your own document. There is some strategy involved in deciding whether to draft or review the letter.

The party that drafts the letter will decide whether it will be a one-page commitment, or whether it will be a longer, more specific letter.

The drafter identifies what issues the letter addresses, and which will be addressed later, as well as what the deal-breakers are. The drafting party can also make the initial call of whether or not the letter will be enforceable or binding. Of course, the reviewing party can make changes to the draft.

The basic premise of the letter of intent is that it will document about what the parties have already agreed, while identifying issues that need further clarification. It can be a great timesaving tool because it allows the parties to concentrate on the real issues, as opposed to negotiating the entire contract at once.

Once you begin writing the letter of intent, you will see what problems will be major and what issues can be resolved more easily.

The biggest hurdle in drafting a letter of intent is whether or not to make it binding. If you say in the letter that it’s not legally binding, that’s usually enough to make it non-binding. However, parties are sometimes disinclined to state that it’s non-binding because it might encourage the other side to feel free to back out.

Some portions of the letter should be binding, including confidentiality, non-solicitation, termination date, and access of information terms. If you’re negotiating buying a business, make the “bust-up fee” provision binding as well. A bust-up fee covers your time and costs if the seller backs out.

The portions of the letter that are usually non-binding relate to the configuration of the deal and the parties’ general interest in the transaction. Sometimes a letter of intent will let one side conduct its due diligence and back out of the deal if it is unsatisfied with the investigation.

In some situations, I recommend executing a separate confidentiality agreement outside of the letter of intent to protect your private information. If the letter of intent is found to be non-binding, a confidentiality provision in the letter won’t do you much good.

Please don’t make the mistake of moving forward with only a letter of intent and no contract. But if you do, the letter of intent can help resolve issues and clarify the rights and duties of each party. If you don’t have a contract and you end up in litigation, the court may look at the letter of intent to determine what the parties intended.

Your final contract should address every issue that comes up in negotiations, as well as some issues that may pop up in the future. The contract will also include typical provisions that weren’t in your letter of intent, like warranty disclaimers, limitations of liability, and alternative dispute resolution provisions.

How would you spend your last day in Boston?

August 16, 2011
Mary Luros
Life, Silliness
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This afternoon we revisited Fenway Park for the 1pm game against the Tampa Bay Rays. For those of you who are unfamiliar with the Boston Red Sox, you are basically prohibited from entering Fenway Park on game day without wearing some kind of paraphernalia. So Jason and I went all in and bought shirts, and since it was raining all day and our seats were uncovered, I bought a hat as well.

I can’t begin to explain the circus-like atmosphere around Fenway. People lost their minds. It was like when the Giants were in the World Series and everyone was suddenly nice to each other in SF. THAT’s how excited people were about the random make-up game at 1pm against the flipping Rays (who, btw, we watched get killed by the Oakland A’s a few weeks ago. How good could they be if the A’s beat them?).

Our seats? Not so awesome. Did I mention it rained almost the entire game? And that we were waaaay past 1st base? It didn’t really matter though. It was Fenway, there were over 52,000 people there, and we were having a good time. The people-watching was incredible. Jason saw a pregnant woman drinking beer and I witnessed a young woman on the big screen flash her boobs. And actually, the seats weren’t so bad–we had TWO foul balls super close to us. Actually the kid about 4 seats to the right of us ended up with one. And the guy in front of us basically broke his hand trying to catch one.

The crowd really was fantastic. At A’s and Giants games, the stadium staff entertain the crowd. At Fenway, the crowd entertains themselves. There were a few kids behind us that actually started a chant (Let’s go Red Sox) that the ENTIRE stadium eventually joined in on. One of the boys, not to be confused with a baseball:

And how did the game go?

big wide world of science

August 15, 2011
Mary Luros
Life
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Today we checked out the Museum of Science, which is the best birth control I’ve ever used. There were roughly a million rugrats running around touching everything and screaming.

We bought tickets to the planetarium show “Undiscovered Worlds: The Search Beyond Our Sun” which was fabulous and mind blowing. I can’t help but feel completely insignificant when presented with how big our world is, how immense our galaxy is, and how ridiculously mind-boggling big our universe is.

The museum has several different exhibits going on, one which was random and we spend about 30 seconds in: the tamarin family within the Human Body Connection exhibit. See below. I apologize for it being blurry, but those things are FAST.

To continue our birth control tour, we checked out “How Your Life Began,” which begins with a count of the world population–scary! It also has a video of a live birth which was shocking for me (and mind you, I have recently witnessed a live birth first hand), I can only imagine the trauma it caused for the several small children who watched in awe while their parents ignored them. Jason overheard a small girl ask her mother “Mommy, did it hurt when you gave birth to me?” Her response was “A little, but then they gave me a shot…”

Then we got to the hands-on areas. They were a lot of fun! Like the light exhibit, where I found a wall of mirrors and decided to do a self portrait (and a couple portrait).

Here’s an interesting test of my flash. The moon, below, 1) with flash, 2) without flash.

This was a random group of wooden stick figures, found in the renewable energy section. They LOVE light.

And another couple portrait: the infrared camera shot.

At some point before lunch we went to the “What I Eat: Around the World In 25 Diets” exhibit. They photographed 25 people around the world and what they typically eat in a day, in order of how many calories they consume. It was probably silly to see that particular exhibit right before lunch.

While we were waiting for the electricity theater we stumbled upon the biggest lightbulb in the world: 50,000 watts!

And then of course, the electricity theater, where we witnessed the creation of lightning. And I had one hell of a time capturing it!

For dinner we went out with Richard and Barbara to Island Creek Oyster Bar, where I had the best chowdah of my life. Witness the wall of shells:

Red Sox Nation!

August 14, 2011
Mary Luros
Life
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Today Jason, Barbara and I took a tour of Fenway Park, the oldest major league baseball stadium still in use, and it was pretty fabulous.

The grate below is famous–it was the left field foul pole at Fenway in 1975 when Carlton Fisk hit his home run in the 12th inning of Game 6 of the World Series (he was running around trying to wave the ball on the fair side of this grate).

Cy Young–one of many along the Sox hall of fame.

Inside the press box.

This was taken from the top of the Green Monster (or is it Tha Green Monsta?).

Teammates!

Ted Williams put his hat on me! Almost!

And now I really want to go see a game. Unfortunately the tickets are wicked expensive (like how I’m turning Bostonian?) and I think we’d have to buy Sox shirts and hats to even be allowed into the stadium. I did find a Sox shirt for Skipper, but I’m not sure he’d be into it.

museums and ducks and brews oh my!

August 13, 2011
Mary Luros
Life
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Today we headed to the Museum of Fine Arts in Boston, which has a great collection and some fabulous exhibits. Their entire collection can be found on their website, but here are a few of my favorites…

Psst… giant baby heads are good at keeping secrets.

Norman Rockwell–New Kids in the Neighborhood (1967)

Jackson Pollock–Number 10 (1949)

Winslow Homer–Gloucester, Mackerel Fleet at Dawn (1884) (and Jason’s favorite)

Louis Comfort Tiffany–Parakeets and Gold Fish Bowl (about 1893)

John La Farge–Butterflies and Foliage (1889)

Tiffany lamp

Does that last miniature look familiar? Do you remember that boat from somewhere else?… Okay so it’s the USS Constitution (which Jason and I checked out yesterday). Here’s what we must have looked like on the ship:

They had a great map on display of the “plan” for Boston in 1769:

After a day at the museum, we did something SUPER touristy. We got on a duck boat and took a tour of Boston. And you know what? It was awesome.

I took this picture in the reflection of the John Hancock Tower. It’s like a Where’s Waldo of dorky tourists. Quack quack!

We capped off the day at Citizen Public House, a gastropub. If you have a party of 10, you can order a whole roast suckling pig with all the trimmings. We settled for a beer and the Nantucket blue fish with old bay johnny cakes. Delish!

A wicked good time

August 12, 2011
Mary Luros
Life
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This morning Jason and I woke up and found ourselves in Boston. I’ve never been, and Jason hasn’t been in a long time, so we decided to do the tourist thing and check out the Freedom Trail.

The Freedom Trail is a red line (sometimes paint, sometimes brick) that goes through downtown Boston and has 17 different points of interest on it. It’s a great way to get some exercise and see some of America’s best history. First on the list was Boston Common. Just across the street is the Massachusetts State House with its 23-carat gold dome:

We got a little lost in the state house and ended up going down a little hall and finding the governor’s office. It was a little weird how easily we got there and how little security we saw. Inside the dome:

And there’s a really cool flag room inside:

And since I’m a child and this made me laugh, here’s the entrance we took:

There are several cemeteries along the way, including the Granary Burying Ground (below), where Paul Revere is buried along with several signers of the Declaration of Independence. The cemeteries look like something out of a horror film with the big markers, but they’re actually beautiful and incredibly peaceful. It’s interesting to look at some of the dates on the markers–some as far back as the 1600’s (see poor Tom below).

And poor Benjamin Franklin is hanging out for all of eternity in front of what is now a Ruth’s Chris steakhouse. I’m not sure that the First American would approve of the first public school turning into a restaurant chain.

Old City Hall, which is where the first public school, Boston Latin School, was located.

The Old State House is below. I love these pictures of old buildings with modern skyscrapers in the background. I also love that some of these buildings have names that include “Old,” like no one would know unless it was part of the name.

And of course, Faneuil Hall.

I will admit, I got a little goose-bumpy inside. It’s easy to be transported back to the days when Samuel Adams (not just a beer after all!) was persuading the first Americans to declare independence from England.

In the North End we found Paul Revere’s colonial home (built in 1680).

We followed the trail to the Old North Church, the infamous place where the “one if by land, and two if by sea” signal was sent, thus signaling Paul’s midnight ride. Just after the church is another cemetery, the Copp’s Hill Burying Ground.

Did you know that the Battle of Bunker Hill actually took place on Breed’s Hill and we’ve been perpetuating the wrong name this whole time? We skipped the 294 steps up to the top of the Bunker Hill Monument, but we took a picture and visited the museum.

And the last stop on the Freedom Trail, the USS Constitution.

Ok, actually that wasn’t the last stop. The last stop was at the Warren Tavern, where we enjoyed a pint of Samuel Adams and gave our feet a rest. Tomorrow? Lobsta and chowdah!

What’s the “intent”?

I have a small toy-making company and I’m working on a deal with a national chain to sell some of my toys. I’m worried that they might take advantage of me because I’m smaller, and we haven’t worked out enough details to make an actual contract.

Should I do a “letter of intent” or put something in writing to confirm the issues we’ve already decided? Is there any “teeth” behind such a letter?

A letter of intent (or a memorandum of understanding) is a writing that explains some or all of the structure of a future business deal. The parties express their commitment to the subject matter or to the process of negotiating a more definitive agreement. Such a letter can be formal or informal, and it may be legally binding in whole or in part, or it may be legally nonbinding.

A letter of intent is a great tool for negotiating a business deal like yours. You can use it to set your expectations, to identify the bigger issues that need to be fleshed out, and to clarify the who, what, where and when.

It’s also a useful tool for preventing the other side from walking away from the deal. If you are unsure of their commitment, asking them to sign a letter of intent can be a great litmus test to see if they truly are dedicated to getting the deal done. If they balk on signing it, you know where you stand.

Sometimes, a letter of intent is useful to summarize the proposed deal so that one of the parties can take it to their board of directors or investors or whomever needs to approve the transaction before they commit to it.

Letters of intent can also be useful down the road when things go sideways. You can use the letter to show that the other party is being inconsistent with the original intent of the parties.

Or if things get really unpleasant, letters can be used as evidence to show what the parties contemplated, assuming no later contract is entered into, or to define ambiguous provisions of the later contract.

Whether or not you do a letter of intent will depend on your relationship with the other party. Consider the cost of having an attorney draft it versus doing it yourself, how long it will take to draft, the anticipated business deal’s duration, and whether or not it would be efficient.

Consider how certain you need to be about the other party’s intent. If you anticipate significant problems, a letter of intent might be a good place to start identifying and working through those problems.

The parties can decide whether or not to make the letter binding. Often, parties choose to make the letter of intent binding until a final contract is executed.

If time is short and your deal seems relatively straightforward, you may want to bypass the letter of intent and focus on drafting and executing a contract.

How do you properly fire someone?

July 27, 2011
Mary Luros
Napa Register
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Dear Mary, I have a tasting room in Napa and I recently hired an employee who just isn’t working out. I’ve never had to fire anyone before and I’m worried that he’ll somehow come after me for firing him. How do you properly terminate an employee? For what reason can I fire someone?

Firing an employee can be one of the hardest things you will do as a business owner. The second-hardest thing is defending your actions in a wrongful termination lawsuit.

You can minimize the risk of this employee “coming after you” by making sure you treat him fairly throughout the termination process. The most frequent mistakes employers make include lying about the reason for termination, not terminating other employees for the same misconduct or performance issues, terminating for a trivial reason, and terminating someone in violation of the law.

In California, the general rule is that employment is presumed to be terminable “at will,” which means that ongoing employment can be terminated by either party. There are many exceptions to this rule, and generally it’s up to the terminated employee to prove an exception applies based on law, public policy or contract.

There are legal limitations on the employer’s right to terminate, most notably the California Fair Employment and Housing Act, which prohibits termination based on race, color, national origin, ancestry, sex (including pregnancy and gender identity), age, physical or mental disability, marital status, sexual orientation, protected medical conditions, or religion. Federal law mimics this law and also prohibits termination based on citizenship or union activity.

California has anti-retaliation and whistleblower statutes, as well as leave of absence statutes, which prohibit employers from disciplining or terminating employees for taking leave for a variety of reasons, including pregnancy, disability, serious health conditions, jury duty, voting, military service and more.

An employer’s right to terminate an employee is also limited by public policy considerations. You can’t threaten termination to coerce the employee into acting against public interest, including committing a crime or concealing a wrongdoing. For example, you can’t threaten to fire your employee unless they testify falsely in your favor, or make them rob a liquor store at gunpoint because you’re thirsty.

Contracts can also limit an employer’s right to terminate employees. You may have an employment agreement that termination will only occur “for good cause.” The employee then has the burden of showing that termination was without good cause. Usually this is done by showing that the employer terminated the employee because of a trivial reason, unrelated to the business needs or goals.

To minimize the risk of wrongful termination claims, make sure that your decision does not violate the law, company policies, or your past practices with employees in similar situations. Ensure that you have all of the proper documentation to support your action and make certain that you carefully draft the notice of termination.

Once you have made sure that all of the appropriate steps have been taken to minimize the risk of litigation, conduct an exit interview and give your employee a chance to be heard.

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