Coyote Blog

New York City has instituted a draconian "ban the box" law that makes it extremely difficult for employers to avoid hiring people with criminal records  (via Overlawyered)

The bill, which is likely to become law in some form, would prohibit the commonly used "check boxes" on job applications that ask about past convictions. It also would forbid employers from asking questions about an applicant's criminal history until a conditional job offer has been tendered....

The bigger concern is lawsuits from job seekers. To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, Mr. Goldstein said.

“I think you’d see some increases in litigation, and this is not exactly a well-settled area of law,” he said.

Proponents say the bill would simply offer a clearer way for businesses to follow state law requiring employers to go through a multistep test to determine if an applicant's past criminal behavior correlates with the position being sought.

Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time.

An employer's failure to adhere to the process could lead to a fine of at least $1,000. In the bill's current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.

“Rather than the normal context, we have the burden here shifting,” he said. “It would be on the employer to present clear and convincing evidence that it had not engaged in unlawful discrimination.”

Given that the burden of proof seems to be on businesses in employee lawsuits even when the playing field is supposed to be level, I shudder to think what a statutory burden of proof would mean.  Likely an automatic win for any employee.

Given this, here is a question for you:  Imagine that I hired a convicted felon who then committed a crime against one of my customers.    Would I be shielded from liability because I had limited ability to screen out candidates who posed dangers to customers?  HA!  No way.  The plaintiff's attorney for the customer would be in front of the jury making me look like Attila the Hun for not screening felons from my applicant pool, even as the government made that task effectively impossible.

That is the key to this law -- that proponents can claim that one can screen out felons "if appropriate to the job" but in fact the law makes it effectively impossible to do so without imposing staggering litigation costs on me.  So we get the Leftist ideal - I can be sued by employees for screening out felons and I can simultaneously be sued by customers for not screening out felons.

Because of the all-to-prevalent theory (which may become even more common if Jon Edwards becomes our next AG) that every accident must be the fault of the nearest person with deep pockets, I wasted an hour today.

I visited the NFL experience today with my son.  The NFLX is a kind of football-themed fair or amusement park that the NFL sets up near the site of each Superbowl  (HA HA NFL -- I said it.  I said "Superbowl" and not "the big game."  Come and get me).  After waiting in a reasonable line to enter, we found that to play the games (e.g. throw the football through a hoop) every participant (read 10,000+ people) had to individually fill out and sign a liability waiver and get a wristband attesting to the fact.  There were about 16 clerks at work, but it still was about an hour-long wait. 

It struck me that the NFL could have come up with a much better process.  Why not have people with Internet access (about everyone, since almost 98% seemed to be there with tickets they bought on the internet) print out the waiver and bring it with them already filled out?  The manager on-site claimed that Arizona state law and the Arizona AG required that the process proceed the way it did.  I give that explanation about a 50-50 between being correct and just covering their butt for something stupid.

Anyway, once signed, we had a good time at the event, and it was well worth the effort.

Every year about this time, the NFL earns itself some bad press for busting some small bar or local group for using the word "Superbowl" rather than that catchy phrase "the big game on the first Sunday in February down in Miami."  This year, the bad press honor goes to the NFL for shutting down a party at a church in Indianapolis for having a screen too large.  (Hey NFL!  I am breaking the law!  I have a 110" front projection TV, twice the "legal" 55-inch limit, and I am showing the game on it at my party.  HA HA HA!).  And by the way, what lapdog legislator wrote this law for them, and did he get Superbowl tickets for life?

Now, I understand the situation with copyrights - if you don't defend them vigorously and even-handedly, you can lose them.  I seem to remember Exxon or some other chemical company lost the rights tot he name Formica when they let it be used too generically for counter-top materials.  And the NFL PR people use this defense every year, saying "we really don't want to shut down these folks, but we have to." 

I don't agree that individual words should be copyrighted such that their use in a broad range of contexts should be illegal.  I am fine saying that I can't create another peanut butter and call it "Jif."  I will accept P&G has some sole right in this country to that use.  However, I don't think P&G can tell me that I can't advertise a "Jif party" feature their peanut butter.  In the same way, I am willing to grant the NFL exclusive use of "Superbowl" to describe a sporting event, but I don't think that should restrict me from advertising that people should come to my bar to watch the Superbowl.  And just to add one more example so I have a "threepeat," I don't think Pat Riley should have any ownership in that word.   However, since copyright law is not going to change tomorrow, I will offer up a more modest change.

So here is my suggestion.  The NFL needs to offer a one time use license each year for a bar or other establishment to hold a Superbowl party and actually use Superbowl in the promotion.  The license would of course be non-exclusive, and would carry a myriad of restrictions on how you use the name, etc.   The license could be purchased for a price that would be cheap for a business, maybe $200, and could be purchased right over the web.  It would actually be easier, I think, to go after violators because the NFL could point to the existence of a legal licensing program the violator could easily have participated in.  I would think they could easily bring in a couple of million dollars, not to mention saving them enforcement money and PR headaches.

PS-  Welcome to the NFL intellectual property department.  I presume I included enough verboten uses of "Superbowl" to catch your search engine's attention.

PPS-  My Firefox spell checker (which I love!) does not have "Superbowl" in it.  I wonder, would the NFL consider it a copyright violation for a program to use the word "Superbowl" in its dictionary?