Blogs

Dear Clients and Prospective Clients,

We write to notify you of a significant legal update that already has and will continue to profoundly impact countless Arizonans, including many of you or your loved ones. The Arizona legislature passed two landmark laws: A.R.S. §§ 36-2862 and 13-911, which together codify long-overdue provisions to expunge certain criminal records and seal others (commonly referred to collectively as “record clearing”). These statutes seek to improve Arizona’s justice system and eliminate the punitive nature of certain minor criminal judgments or convictions.

Historically, Arizona lacked comprehensive measures for individuals seeking to clear their criminal records after completing their sentence. Until recently, Arizona was the only state that had no adult record clearing procedures for certain minor offenses. The only available option was the “set aside,” a process that, while beneficial to some, did not remove the conviction from one’s record, falling short of providing a clean slate for those who had paid their debt to society. However, with the enactment of the record clearing statutes, Arizona now offers robust mechanisms to expunge and seal records, presenting new opportunities for those seeking to move past their prior legal transgressions.

Expungement under A.R.S. § 36-2862:
Expungement is the process of completely removing a conviction from an individual’s record, as though the offense never occurred. This law allows for the expungement of certain marijuana-related convictions. Individuals convicted of possessing, consuming, or transporting marijuana under certain thresholds can now have these convictions expunged, providing a true fresh start. The law applies to both misdemeanor and felony convictions, provided the offenses meet the criteria specified within the statute.

Record Sealing under A.R.S. § 13-911:
Record sealing, unlike expungement, does not erase criminal records but restricts access to them, making them invisible to the public and most employers. This statute enables individuals to petition for the sealing of their criminal records, covering a broader spectrum of offenses beyond marijuana-related charges. Eligible convictions include various non-violent misdemeanors and felonies, subject to a waiting period that varies depending on the severity of the offense–typically ranging from 2 to 5 years post-conviction or post-release from probation or prison. Additionally, charges that did not result in a conviction, such as dismissed charges or acquittals, can also be sealed, provided they meet the stipulated conditions. Notably, and under certain limited circumstances, an entity may request access to sealed records of certain categories of crimes.

In addition to record clearing, individuals with felony convictions may also seek the restoration of their civil rights, including the right to vote, serve on a jury, and run for public office. At Farhang & Medcoff, we are well equipped to help you expunge or seal an eligible record. Our experienced attorneys can help you determine whether your convictions or charges qualify and guide you through the entire process. Please note that even if your records are successfully expunged or sealed, private background check companies may still maintain such records in their databases, meaning that a prospective employer or other entity can still access records that have been sealed or expunged. Our commitment to our clients does not  stop when your records have been cleared. We go the extra mile and do everything in our power to ensure your records are fully removed from those databases.

We are pleased to offer comprehensive record clearing services cost effectively, including evaluating your eligibility, preparing the necessary petitions, representing you through the entire process to ensure the best possible outcome, and following up with private background check companies to make certain your records are scrubbed from their databases.

Contact us today to schedule a consultation with our team and take the first step towards a brighter future with a clean record.

The National Labor Relations Board (“Board”) has issued a new rule that makes it more likely for separate business entities to be considered “joint employers” and, therefore, liable for the other entity’s violations of the National Labor Relations Act. On October 27, 2023, the Board reversed and rescinded its 2020 rule that required “substantial direct and immediate control over one or more essential terms and conditions” of employment for an entity to be considered a joint employer. Effective December 26, 2023, the Board will deem entities “joint employers” even if an entity possesses such control but never uses it or if the entity exercises it indirectly, such as through an intermediary.

The definition of joint employment has been hotly contested in recent years, beginning with the Obama Board’s 2015 decision in Browning-Ferris Industries. There, the Board ruled that an entity need not exercise actual control to qualify as a joint employer; instead, the entity only needs a contractual right to exercise that control, even if it never uses it or only does so indirectly. The Trump Board reversed course in a 2017 decision that overturned Browning-Ferris but was rescinded in 2018 because of a Board Member’s conflict of interest. The Board later remedied the issue through rulemaking in 2020, adopting the “substantial direct and immediate control” standard.

The Board’s new rule essentially returns to the Browning-Ferris standard, meaning that businesses have more expansive collective bargaining obligations and a greater risk of liability for labor law violations of their subcontractors, franchisees, staffing agencies, and other affiliated entities. A Board fact sheet on the new rule can be found here. This area of labor law is rapidly developing, making sound legal advice especially important. The attorneys at Farhang & Medcoff are available to assist you in ensuring legal compliance with these and other recent changes.

The National Labor Relations Board (“Board”) has issued a new rule that makes it more likely for separate business entities to be considered “joint employers” and, therefore, liable for the other entity’s violations of the National Labor Relations Act. On October 27, 2023, the Board reversed and rescinded its 2020 rule that required “substantial direct and immediate control over one or more essential terms and conditions” of employment for an entity to be considered a joint employer. Effective December 26, 2023, the Board will deem entities “joint employers” even if an entity possesses such control but never uses it or if the entity exercises it indirectly, such as through an intermediary.

The definition of joint employment has been hotly contested in recent years, beginning with the Obama Board’s 2015 decision in Browning-Ferris Industries. There, the Board ruled that an entity need not exercise actual control to qualify as a joint employer; instead, the entity only needs a contractual right to exercise that control, even if it never uses it or only does so indirectly. The Trump Board reversed course in a 2017 decision that overturned Browning-Ferris but was rescinded in 2018 because of a Board Member’s conflict of interest. The Board later remedied the issue through rulemaking in 2020, adopting the “substantial direct and immediate control” standard.

The Board’s new rule essentially returns to the Browning-Ferris standard, meaning that businesses have more expansive collective bargaining obligations and a greater risk of liability for labor law violations of their subcontractors, franchisees, staffing agencies, and other affiliated entities. A Board fact sheet on the new rule can be found here. This area of labor law is rapidly developing, making sound legal advice especially important. The attorneys at Farhang & Medcoff are available to assist you in ensuring legal compliance with these and other recent changes.

By Joseph Rousos-Hammond

The EEOC (Equal Employment Opportunity Commission) issued, on September 29, 2023, a Proposed Enforcement Guidance on Harassment in the Workplace, which is open for comment until November 1, 2023. When finalized, it will supersede the various manuals and guidance documents issued over the last three decades. The new Guidance provides an updated understanding of the legal standards for harassment claims, offers practical advice for employers on preventing workplace harassment, and qualifies as a quantum leap forward for LGTBQ+ antidiscrimination.

In the Guidance, the EEOC notes that federal law not only prohibits discrimination but also harassment if it creates a hostile work environment based on the employee’s sexual orientation or gender identity (generally defined as an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth). For example, harassment can include offensive or derogatory remarks about a person’s transgender status or gender transition.

The updated Guidance also broadens the types of harassment that can be based on sex, including harassment based on pregnancy, childbirth, and other “related medical conditions.” The broadened definition protects against harassment based on employees’ decisions pertaining to contraception, abortion, as well as lactation.

The “Promising Practices” section of the Proposed Guidance identifies “five core principles” that are believed necessary to prevent and address harassment:

• Committed Leadership;
• Demonstrated Accountability;
• Strong, Comprehensive policies;
• Trusted and Accessible Complaint Procedures; and
• Regular, Interactive Training Tailored Specifically to the Organization

The Guidance also addresses how social media postings and other online content can contribute to hostile work environments, even if such postings occur outside of the workplace and are not work-related. For example, communications conveyed using work-related systems, accounts, or platforms–including an employer’s email system, electronic bulletin board, instant message system, and video conferencing are all considered to be conducted within a “virtual work environment,” which can contribute to a hostile work environment.

In conclusion, understanding the new EEOC Guidelines is crucial for employers to foster a truly inclusive and diverse workforce. By adhering to these Guidelines, employers can ensure a fair and equal work environment for all individuals, regardless of their sexual orientation or gender identity. With a clear understanding of the key terms and concepts outlined by the EEOC, employers can navigate the complexities of LGBTQ+ discrimination and take proactive steps to prevent and address any instances of discrimination. By promoting diversity, inclusion, and acceptance, employers can create a workplace where every individual feels valued and respected, ultimately leading to increased productivity, innovation, and success for all.

To review the full Guidance, click here: https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace