EEOC Releases New Guidance on Use of Criminal Background Checks

Posted on April 26, 2012 by Suzanne M. Boy

Yesterday, the EEOC issued a new Enforcement Guidance on use of arrest and conviction records in hiring decisions.  Among other things, the Guidance addresses best practices for employers who use criminal background information in hiring decisions.  

The Guidance has already been covered in detail by many of my fellow bloggers.  For more information, check out Dan Schwartz's post on the Connecticut Employment Law Blog.  Also check out Jon Hyman's post on his Ohio Employer's Law Blog.  If you'd like to read the Guidance itself, download it here.

I'll leave you with Section VIII, the "Best Practices" section of the Guidance, which I think is helpful:

General

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

Developing a Policy

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.  Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.  Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
     
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The Saga Continues: NLRB Poster Requirement On Hold

Posted on April 17, 2012 by Suzanne M. Boy

The past few days have not been pretty for the National Labor Relations Board ("NLRB") and its controversial Notice of Employee Rights poster requirement.   Last Friday, a South Carolina federal district court found the proposed notice-posting rule invalid.  Today, the DC Circuit Court of Appeals entered an injunction temporarily barring the NLRB from enforcing the notice-posting rule.  In response to the DC Circuit's ruling, NLRB Chairman Mark Gaston Pearce confirmed that regional NLRB offices will not enforce the rule pending resolution of these issues.  The DC Circuit will hear oral argument in September 2012.

What does this mean for you?  It means the poster requirement, which was set to go into effect April 30, is on hold yet again, and you do not need to post the notice.  This time, it's on hold until at least the Fall of 2012.

If you would like more background on the notice-posting rule, click here to access my previous posts on the issue.  We will continue to update you as this seemingly never ending saga continues to unfold. 

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Five New Hire Suggestions for your HR Easter Basket

Posted on April 6, 2012 by John Agnew

I grew up celebrating Easter, but when I was young, I never cared much for the goodies I discovered in my Sunday morning Easter basket.  My brother, on the other hand, always didhe was more than happy to eat his hollow chocolate bunny, dozens of Marshmallow Peeps (both his and mine), and all the jelly beans that slipped through the "grass" to the bottom of his basket.  Eventually, I convinced my mom the traditional items were not my favorites, but I liked plenty of other treats.  From that year forward, my basket was improved. 

In life, some of us are lucky enough to like what we find in our basketsEaster or otherwise, while others must initiate change to find similar levels of satisfaction.  On this Good Friday, I offer the following five new hire suggestions, to better ensure you like what you find in your HR basket:

1.         Review your interview process and questions.  The process must not disparately impact protected classes, and the interview questions must be equally lawful and appropriate.  Doing so can mitigate the risk of discrimination suits.

2.         Conduct a carefully defined background check, assuming the potential new hire passes the interview.  Doing so can mitigate the risk of negligent hiring suits and potential vicarious liability from improper actions of unscreened employees.

3.         Review the job description and classification of the potential new hire (exempt or non-exempt).  If exempt, document why; and, if non-exempt, reaffirm the method of capturing time worked and properly calculating overtime.  Doing so can mitigate the risk of FLSA wage and hour claims.

4.         Provide the new employee with an up-to-date employee handbook and, equally important, provide the new employee adequate time to read it that day, ask questions, and sign an acknowledgement of understanding and agreement to comply.  Doing so can mitigate the risk of all kinds of employment-related suits, assuming the employer also knows and adheres to the protocols set forth in the handbook.

5.         Conduct sexual harassment and discrimination training.  Ensure the new employee, as well as supervisors, are properly trained and sign acknowledgements of understanding and agreement to comply with the company's harassment and discrimination policies.  Doing so can mitigate the risk of sexual harassment and discrimination charges and/or lawsuits.

If this is already how your basket looks, continue enjoying Marshmallow Peeps like my brother always did. If not, let this message be the impetus for your change; and, hopefully next year you will find an improved HR basket, having done what you can to mitigate the front-end risks associated with hiring a new employee.

 

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A Note to Subscribers

Posted on March 30, 2012 by Suzanne M. Boy

We are currently working on a switch to a new feed management platform Aweber, from our current platform, Feedburner.  Aweber will, among other things, allow us to get email notifications of blog posts out to you immediately, instead of the morning following the post.

This switch will eliminate your current subscription to the blog.  Over the weekend, I will manually re-subscribe all current subscribers.  You will, however, have to confirm your subscription, so please be on the look out for an email asking you to confirm.  If you have not received the email by Monday (and it's not in your spam folder), please let me know and I will try again.

I am excited about this change.  It is one of the few we'll be rolling out over the next couple of months in as Southwest Florida Employment Law Blog continues to grow and evolve.  Along those lines, any feedback you have is always welcome.  What are your favorite features/articles on the blog?  What would you like to see more of?  Less of?  Any particular topics you would like us to cover?  Please feel free to email me at suzanne.boy@henlaw.com, or post your suggestions in the comments below.

As always, thank you for your continued interest in the Southwest Florida Employment Law Blog!

 

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20th Anniversary HR Law & Solutions a Great Success!

Posted on March 28, 2012 by Suzanne M. Boy

Yesterday, Henderson Franklin's Employment Law Practice Group hosted the 20th Anniversary of its HR Law & Solutions seminar at Sanibel Harbour Resort.  The seminar was a great success!  Over 300 attendees heard presentations on a variety of law topics, including retaliation, workers' compensation, and immigration, and they tested their skills in a lively game of "Employment Law Jeopardy."  We also welcomed back the hilarious Sean Carter, "Humorist at Law," to rave reviews, and inducted four new members into the HR Law & Solutions Hall of Fame.

We capped the day with a special surprise celebration, when Norman Love of Norman Love Confections arrived to present a giant, multi-level chocolate cake.  The entire cake -- even the law books and gavel -- was edible!  Attendees enjoyed the delicious cake along with a champagne toast. It was the perfect ending to our anniversary celebration.

To all who attended, I would like to extend a sincere thank you from all of us.  We couldn’t ask for a better group, and we look forward to 20 more years with you all!

Here are a few photos from the event.  For the complete album, be sure to visit our Facebook page.

 

Hall of Fame Inductees Frank Shore, Pam Fairfax, Donnie Laubheimer, and Chief Bill Lombardo.

Employment Law Jeopardy

 

Side view of the amazing Norman Love Confections cake

Champagne toast for our 20th Anniversary!

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Revisiting Race: Supreme Court to Reconsider Affirmative Action

Posted on March 9, 2012 by Robert Shearman

For years, college admissions officers were on safe ground when considering race as a factor in their admissions programs to promote class diversity. This may change now that the Supreme Court has agreed to consider Fisher v. The University of Texas at Austin. In Fisher, Plaintiff Abigail Fisher argues she was rejected by the school, not because of her grades or test scores, but because she is white.

In April 2003 the Court had seemingly resolved the issue in Grutter v. Bollinger. In that opinion, Justice Sandra Day O'Connor, writing for the majority, found that the University of Michigan Law School's compelling interest in promoting class diversity justified a race-conscious admissions process, and not an unconstitutional race-based quota system. The decision, however, left open the possibility that such programs might be unnecessary in 25 years. While universities around the country may have relied upon this decision in implementing their own affirmative action programs, the quarter century timetable may have been accelerated when Chief Justice John Roberts wrote in an opinion striking down affirmative action programs in public high schools. In Parents Involved in Community Schools v. Seattle School District No. 1, the Chief Justice opined that "[t]he way to stop discrimination on the basis of race is stop discriminating on the basis of race." Affirmative action proponents are concerned that the Court's more conservative make up signals an end to affirmative action and the ability to promote diversity. Critics welcome the opportunity to remove race from the admissions process.

The Court's newest Justice, Elena Kagan, will not participate in the review due to her prior involvement in the case while serving as U.S. Solicitor General. The Court is scheduled to consider the case in October, just before the 2012 elections.

 

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HR Law & Solutions 20th Anniversary: Will You Be #300?

Posted on March 1, 2012 by Suzanne M. Boy

Preparation for the 20th Anniversary HR Law & Solutions seminar is well under way, and we have reached record numbers -- with nearly a month to go!  As of this post, we have 295 attendees registered.  The good news is that we've secured additional space, so we can continue accepting registrations even after we hit 300.  The better news, for those of you who haven't registered, is that to celebrate the largest attendance in HR Law & Solutions history, we will give a prize to registrant #300 at the seminar!  If you haven't registered, please do soon!  This seminar is sure to be our best yet, and we are so excited to share everything we have planned with all of you.  Check out my previous post for the event schedule and details, and click here to register.  Looking forward to seeing you March 27!  

 

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Linguistic Challenges in the Workplace

Posted on February 28, 2012 by John F. Potanovic

Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation - such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

An "accent discrimination" claim can arise if an employer takes the adage "the customer is always right" a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
 
What Does This Mean For Employers?
 
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here.  The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action.  Always better safe than sorry!
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A Potential Valentine's Day Equation: flowers + chocolates = sexual harassment

Posted on February 13, 2012 by John Agnew

As a guy, I prefer barbecue-type holidays, such as Memorial Day or the Fourth of July, over Valentine's Day. As employers, you probably should, too, even if it is for different reasons.

A CareerBuilder survey published in 2011 found approximately 40% of workers have dated at least one person with whom they have worked, and 18% reported dating at least two people with whom they have worked. Clearly, workplace romance is pervasive. With it can come a host of unwanted side-effects, including loss of productivity, ethical dilemmas, depressed morale, and sexual harassment claims.

Sexual harassment claims can arise in a variety of situations, including when a workplace romance goes south.  They can also arise from what one employee might find to be a light-hearted joke, card or funny e-mail, sent to an employee who does not see the humor and might be completely offended.  A sexual harassment claim can even arise when a thoughtful boss gives a Valentine's Day gift to an employee for a job well done, and the message is misinterpreted. 

Since Valentine’s Day is upon us, take this opportunity to carefully review your policies addressing sexual harassment and workplace romances. As you do, consider the following:

1. Sexual harassment policy.  Review your company's sexual harassment policy to ensure it is clear, comprehensive, and consistently enforced. Check to make sure you have an acknowledgment signed by each employee.

2. Sexual harassment training.  Provide training to all your supervisors, and consider providing it to all employees. If done right, this type of training can go a long way when the EEOC comes knocking.

3. Conflict of interest policy.  Consider creating a policy prohibiting romantic relationships between supervisors and subordinates. To the extent such conflicts already exist, consider transferring one of the employees to another department.

4. So-called love contracts.  Consider requiring mandatory disclosure of all workplace romances, and have each couple sign a document acknowledging the relationship. The "love contract" should confirm that the relationship is consensual and will not interfere with job performance, and confirm that the employees understand the sexual harassment policy and their obligation to notify the employer of any violation of the policy.

5. Action on complaints. Conduct a thorough investigation of the issue and take appropriate action immediately upon receipt of a complaint or recognition of a potential issue. Make sure you do not brush complaints off, even if they come from a worker involved in a workplace romance.

These steps will help ensure that as those flowers and chocolates are delivered to your workplace tomorrow, you will be in the best position possible to prevent the Valentine's Day "gift" no employer wants—a sexual harassment complaint.

 

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HR Law & Solutions 20th Anniversary: Registration Now Open!

Posted on February 1, 2012 by Suzanne M. Boy

I am excited to announce we have just opened registration for the 20th Anniversary of our HR Law & Solutions Seminar!  The seminar is March 27 at Sanibel Harbour Resort & Spa.  Topics and speakers include:

  • Employment Law and Legislative Update presented by Attorneys Robert Shearman and John Agnew
  • First Report of Injury: Best Practices to Save Your Bottom Line presented by Attorneys Cora Molloy and David Roos
  • DHS/DOL Immigration Audits: Is Your Company Ready? presented by Board Certified Immigration Lawyer Tulio Suarez 
  • Dealing with the Retaliation Claim Boom presented by Board Certified Employment Lawyer John Potanovic
  • Employment Law IQ: Test Your Knowledge and Issue Spotting Abilities presented by Board Certified Civil Trial Lawyer Vicki Sproat and Attorney Suzanne Boy
  • It's Not the Fruit, It's the Root presented by guest speaker Sean Carter, Humorist at Law.

Also, as I teased in my Save the Date post, we have some fun surprises up our sleeves, including a surprise guest and a special 20th Anniversary celebration!  Download the seminar brochure here.  Click here to register.  Can't wait to see you all!

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