Category Archives: EEOC

Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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Looking Ahead at Litigation Trends

looking aheadIf December was the time for workplace experts to parse the year that just went by, then January is when those same experts shift into prediction mode and forecast what may happen in the 12 months ahead.

In its 11th annual Workplace Class Action Litigation Report, Chicago-based labor and employment law firm Seyfarth Shaw does a bit of both.

The 844-page report, an executive summary of which is available here, analyzed 1,219 class-action rulings on a circuit-by-circuit and state-by-state basis to “capture key themes from 2014 and emerging trends facing U.S. companies in 2015,” according to a Seyfarth Shaw press release.

For example, two cases—Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v. Behrend—continued to serve as “the most influential ‘pivot points’ for Rule 23 decisions in 2014, having a wide-ranging impact on virtually all class actions pending in federal and state courts,” the report notes. According to Seyfarth Shaw, Wal-Mart was cited 571 times across lower federal and state courts in 2014, while Comcast was cited 261 times, “which in turn generated a bevy of new case law.”

These decisions have reshaped settlement strategies, according to the report, which found governmental enforcement litigation settlements dropping to their lowest levels in a decade last year, while ERISA settlements shot up nearly tenfold from 2013. (Employment discrimination and wage-and-hour class-action settlements remained flat, however.)

Other key trends the Seyfarth Shaw report sees as poised to continue in 2015 include:

  • Wage-and-hour litigation, which represents the prime litigation risk in the workplace, as case filings increased yet again in 2014.
  • FLSA collective actions and state law wage-and-hour class actions, which produced more decisions than any other area of complex employment litigation in 2014.
  • The Department of Labor and Equal Employment Opportunity Commission continued their aggressive litigation approaches with mixed results in 2014, marked by several losses in the federal courts and their lowest aggregate settlement recoveries since 2006.
  • The Class Action Fairness Act, which experienced a “transformative” year in 2014, solidifying defense strategies to secure removal of class actions to federal courts.

“In response to recent Supreme Court decisions on class-action issues, Rule 23 law is undergoing a major transformation, and as a result, employers litigated an increased number of novel defenses in 2014,” says Gerald L. Maatman Jr., co-chair of Seyfarth Shaw’s class-action defense group and author of this year’s report.

“At the same time, wage-and-hour class actions and collective actions also continued their meteoric rise to new record levels, while the U.S. Department of Labor and U.S. Equal Employment Opportunity Commission advanced their litigation agendas in an aggressive fashion,” continues Maatman. “All told, employers face a much more challenging landscape for defending workplace class-action litigation in 2015.”

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EEOC Adds Pregnancy Cases to Controversy

Just an update for those who are following the recent pregnancy-discrimination guidelines issued by the Equal Employment 490128943 -- pregnanct employeeOpportunity Commission — despite the controversy some think the agency created amidst the pending U.S. Supreme Court consideration of Young v. United Parcel Inc.:  The EEOC isn’t waiting on the high court before filing or settling pregnancy-discrimination lawsuits either.

According to the EEOC’s website, press releases were issued on nine lawsuits filed and two settlements since the agency issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14.

Here, for your information — should you choose to venture into this much reading — are all the cases the EEOC has filed and listed on its website against employers accused of pregnancy discrimination since the guidance was issued, from most recent to oldest:

All the suits in question accuse the businesses of violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

“I am surprised that this issue continues to be a recurring theme in the workplace in this day and age,” says Robert Canino, regional attorney for the EEOC’s Dallas District Office, which filed the Pharmacy Solutions lawsuit. “We hope that by continuing to increase public awareness through our law-enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.”

But critics of the EEOC’s assertiveness and timing in issuing its guidance — which was the focus of this HREOnline news analysis I wrote back in July — say adding cases to the pregnancy-discrimination docket only clutters an already-cluttered legal landscape.

“With its new pregnancy enforcement guidance still in its first trimester, the EEOC has set about vigorously pursuing companies that do not comply,” thereby filling the courts with more to work on as the Supreme Court hearing has yet to be scheduled,  says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

“Since the EEOC first gave birth [pun intended, no doubt] to the guidance in July, it has inserted itself as plaintiff in at least nine federal-court lawsuits against employers [allegedly] discriminating against pregnant employees,” he says. “Each decision is accompanied by rather strong remarks from the [agency], which state quite clearly its intent to induce an ‘awakening’ by employers and erase ‘archaic prejudices’ still held by companies toward pregnant women.”

The issue up for consideration in Young v. UPS is whether an employer — in this case, UPS —  is required under the PDA to offer light-duty work to pregnant employees with restrictions, even if light-duty work is available for certain categories of nonpregnant employees.

“This is precisely the issue the Supreme Court has yet to take up,” Voluck told me back in July, “and that decision won’t come out until next year some time. “I honestly have no idea why this was issued at this time,” he said then. “A power move? I have no idea.

“It’s like the Perfect Storm, these two entities colliding,” he said, referring to the 2000 movie, “though my crystal ball tells me there’s no doubt the Supreme Court will expand the rights of pregnant women.”

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Employers Missing ADA Coverage in FMLA Cases

Employers are missing half of Family and Medical Leave Act cases involving employees’ serious illnesses that should also have been reviewed for Americans with Disabilities Act eligibility.

462011275 - disability and gavelThis according to Chicago-based ComPsych, in this report issued last week, June 24 to be exact, titled The Risk of Non-Compliance With ADA. The report breaks down by certain industries the percentage of FMLA cases that need ADA review, yet are being missed.

They include: retail at 13.2 percent, health services at 10.9 percent, manufacturing at 6.8 percent, public administration at 6.7 percent, trades at 6.5 percent and professional services at 5.9 percent.

These numbers, says Matt Morris, a vice president and licensed attorney at ComPsych, are “significant.”

“A common mistake employers make,” he says, “is to deem an FMLA leave request as ineligible, then not review it for ADA purposes.”

The potential consequences of such oversight “can be severe,” says Morris, “since one ADA misstep can lead to an investigation of the employer’s entire leave practices.” Hence the rash of recent ADA class-action lawsuits by the Equal Employment Opportunity Commission, he adds.

Indeed, the EEOC is coming off a record 2013 in terms of ADA penalties paid out by employers, a whopping $109.2 mill. Here are just three of the most sizable payments: $6.2 million by Sears Holding Co. involving 235 plaintiffs, $3.2 million by SuperValu involving 110 plaintiffs and $20 million by Verizon.

I asked Morris for a good example of an ineligible FMLA leave that would be covered under the ADA. Here’s what he said:

An employee has been at the company for six months and breaks his leg. He needs time off for rehab and to recoup, but is denied FMLA leave because he hasn’t been employed long enough. In this case, the employer should still review for ADA accommodation.”

Basically any ineligible FMLA leave for the employee’s own health condition (obviously not for baby bonding, etc.) has the potential to be an ADA leave, he tells me. “Although a ‘serious health condition’ under the FMLA and a ‘disability’ under the ADA are both two different standards, they are each very likely applicable to a health condition that forces someone to be out of work,” says Morris. And while the FMLA requires an employee to have been employed for 12 months and worked 1,250 hours in the last 12 months in order to be eligible, the ADA has no such standard. So, an ineligible FMLA employee still may have an ADA disability.

Perhaps the most common ADA misstep is waiting for an employee to “raise her hand” to request an ADA accommodation specifically or by name, Morris says. Courts have been clear that the “notice requirements under the ADA are nearly identical to those under the FMLA,” he says, but employers often don’t recognize that requests for FMLA leave are “hidden” requests for an accommodation — i.e., leave — under the ADA.

Interestingly, he tells me, employers all share a common misstep, which is that the company created and tried to enforce a standard policy — strange, in part, because generally this is exactly what HR tries to do: create uniformity and equality.

“But … they don’t consider whether the leave should be continued on a case-by-case basis,” says Morris. Maybe the more important thing is to note how easily one mistake can turn into something broader. What can happen — and, in fact, has been the way most of these cases start, he says — is:

1) The employee has an adverse action taken against her (usually, she’s fired).

2) She files a charge of discrimination with the EEOC (such charges are free to file, don’t require a lawyer, and often list several bases on which the employee believes she was discriminated against — for instance, race, sex, religion and then disability).

3) If the EEOC determines that, in that one case, the disability policy had a uniform cutoff — what it calls an ‘inflexible’ policy — it then uses its subpoena power to request the names of all employees who were subject to that policy (fired because they crossed that inflexible line).

4) The EEOC then sues on behalf of all, or most, employees subject to the policy and suddenly there are hundreds of plaintiffs.”

Thus far, this has only arisen because the policy was clear (“if you take more than X amount of time on leave, your job will not be protected”), but even if employers are detecting the right employees [for FMLA leave], they still have to have the expertise to apply such ADA standards as “reasonable accommodation,” “undue hardship” and “significant limitations (of a major life function)” appropriately.

So what should you be keeping top-of-mind? Here’s Morris’ caution:

Employers have been pining for three to four years for additional guidance from the EEOC on how to conduct the interactive process (how to determine a ‘reasonable’ amount of time, etc.). Chances are, given indications from the EEOC itself, the guidance will not come soon. Until then, employers will still be held responsible for appropriately applying these vague standards to a host of factors (e.g., What does the employee do? Could others help? Are there other jobs she could do? How long will the disability last? Are there things [you] can do to help reduce the time?)”

Hope this is helpful.

 

 

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Chamber Renders a Scathing EEOC Assessment

85449254 -- gavel and flagI have Michael J. Lotito’s LinkedIn group, Littler’s Workplace Policy Institute, to thank for cluing me in to this latest blast against the U.S. Equal Employment Opportunity Commission — a report from the U.S. Chamber of Commerce that is so weighty with criticism, it comes in two parts: one, an examination of what it calls the agency’s “unreasonable enforcement efforts,” and two, a detailed review of its “unsuccessful 2013 amicus program, in which its legal interpretations were rejected by federal courts approximately 80 percent of the time.”

The conclusions of each part give a clear sense of just how scathing this assessment of the EEOC is. Here’s part one’s:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of ‘too little, too late': by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose. The time has come for EEOC to adopt institutional procedures to provide for internal accountability, more efficient use of resources and adherence to its own statutory conciliation requirement. If EEOC continues to ignore the problem, then Congress should use its oversight authority to install much needed safeguards within EEOC.”

And here’s part two’s:

Whether EEOC’s 2013 amicus program’s success is measured on a pure numerical won/los[t] basis, or on the importance of the substantive interpretations of federal law it supported in its amicus efforts, one thing is clear: It was an overwhelming failure. What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission, several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national-origin discrimination, and credit-related background checks. Of course, whether any future guidance would fare better than EEOC’s 2013 track record is unknown. However, if the best predictor of future performance is past performance, in light of EEOC’s 2013 amicus performance, it is unlikely.”

I contacted Christine Nazer, public spokesperson for the EEOC, to get her agency’s reaction to this hefty slap. Here’s what she had to say: “The EEOC’s litigation program is a critical part of the success of our mission to stop and remedy unlawful employment discrimination. By any measure, the EEOC has achieved a remarkable record at trial in recent years: We prevailed in nine out of 10 jury trials in 2013.  The agency also takes the concerns raised by members of Congress seriously, and will continue to work with them to ensure the nation’s workplaces are safe and free of discrimination.”

Still, as we report in our July-August HRE cover story, “Get Ready to Rumble,” which went live earlier today, and in last year’s June 16 cover story, “Watch Your Step!” the EEOC does, indeed, need to be reckoned with by employers and their HR departments because of its stepped-up enforcement tactics. And when it does come knocking, and it will, you and your counsel better be prepared with well-documented answers and proof of compliance.

Mind you, as the Chamber points out, and as many news stories and blog posts by us corroborate, including this one of mine on April 17, the agency hasn’t exactly been without its missteps in trying to carry that enhanced enforcement out.

But EEOC missteps haven’t stopped the agency from marching in and clamping down. At least, not yet.

As Merrily Archer — a Denver-based attorney, head of EEO Legal Solutions and a former staff attorney with the EEOC — put it in a recent blog post quoted by writer Will Bunch in “Get Ready to Rumble,” EEOC lawyers and human resource executives should ideally be acknowledging their shared goals in reducing discrimination — “but that level of peace and understanding is not likely anytime soon.”

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A Big Potential Win for Telecommuting

telecommutingJane Harris, a resale steel buyer for Ford Motor Co., suffers from irritable bowel syndrome and sought accommodation from her employer to work from home four days per week, as her job mostly involved contact with suppliers and co-workers via phone and computer. Ford denied her request and later terminated her.

Harris and the Equal Employment Opportunity Commission filed suit against Ford, charging that the Dearborn, Mich.-based automaker had violated the Americans with Disabilities Act when it denied Harris’ request to work from home as an accommodation for her IBS. The agency also charged that Ford’s firing of Harris was in retaliation after she filed a charge with the EEOC alleging discrimination under the ADA.

A lower court ruled in the company’s favor, holding that attendance at the job site was an essential function of Harris’ job and that her disability-related absences meant she was not a “qualified” individual under the ADA. The court also said the EEOC could not prove Harris’ firing was retaliatory because it was based on attendance and performance issues that pre-dated her charge filed with the EEOC.

Earlier this week, the U.S. Court of Appeals for the Sixth District reversed the lower court’s rulings on both counts and said that the EEOC’s claim against Ford has enough merit to go to trial.

EEOC General Counsel David Lopez hailed the ruling as “the latest in a series of cases ensuring persons with disabilities are allowed the opportunity to use their talents fully.” The court’s decision “reaffirms the employer’s important obligation to provide a reasonable accommodation unless it can show it results in undue hardship,” he said in a statement.

For its part, Ford issued a statement that seems to suggest it will appeal the decision:

“Ford is disappointed with the court’s decision, which conflicts with earlier rulings by this court and other courts. We are evaluating our options for further review.”

Pavneet Singh Uppal, an employment attorney and regional manager partner with Fisher & Phillips in Phoenix, told the Phoenix Business Journal that the ruling could mean telecommuting is a viable option for accommodating disabled employees:

Under the ADA, regular and predictable attendance is usually considered to be an essential job function. In prior years, attendance meant physically showing up for work in person. However, as this case shows, employers must respond to technological advances. … [Telecommuting] cannot be summarily rejected and must be considered as one possible type of reasonable accommodation for a disabled employee.”

 

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Another EEOC Setback in the Courts

I can’t help but think this latest slap on the wrist of the Equal Employment Opportunity Commission (as documented by HR Morning) will only embolden the agency.

121266265-soc media and hiringThat has been the sentiment after past EEOC court defeats, including this one I blogged about several months back.

In this latest case, a federal appeals court upheld the dismissal of a lawsuit filed by the EEOC against Kaplan Higher Education Corp., claiming the company improperly used credit histories to screen job applicants.

The agency claimed Kaplan discriminated against black candidates applying to senior-executive, accounting and other financially sensitive positions. The EEOC, meanwhile, hired a third party to prove the credit checks had a disparate impact on black applicants, but the court found the third party’s research process — which included examining driver’s licenses to determine race, a technique it calls “race rating” — was flawed and unreliable.

What’s more, the court found, the EEOC was making charges about a background-check technique it employs. And that’s not all the problems found by the court.

As quoted from the ruling, care of HR Morning:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.

… We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”

This piece from Forbes offers additional details and perspective about the case.

From my limited perspective, I’m starting to see enough of these failed EEOC prosecutions to think the agency might have better luck returning to the old days of helping employers comply rather than looking for ways — even paying third parties to find ways — to nail them.

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EEOC Shares Tips on Background Checks

handcuffsSome would argue the EEOC’s guidance on the use of criminal background check information offers more confusion than clarification for employers.

Critics—including a group of nine state attorney generals that penned a letter detailing its grievances to the EEOC—contend the agency’s regulations unduly burden employers with costs, could actually create more opportunities for discrimination, and may circumvent many state laws with respect to background checks for employment purposes.

The EEOC has made efforts to address such concerns. In September 2013, for example, the agency responded to the aforementioned letter, explaining its recommendation that employers use a two-step process for job applicants—including individualized assessment as the second step—rather than relying on bright-line screens alone.

Earlier this week, the EEOC—along with the U.S. Federal Trade Commission—made another attempt at shedding light on the subject, offering tips to employers and job seekers alike, in the form of two technical assistance documents.

The organizations issued the documents—one for employers, one for job applicants and employees—in an effort to “explain how the agencies’ respective laws apply to background checks performed for employment purposes,” according to an EEOC statement.

For example, the EEOC advises employers to “be prepared to make exceptions for problems revealed during a background check that revealed a disability. … If you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job—despite the negative background information—unless doing so would cause significant financial or operational disability.”

The document also reminds organizations of their responsibilities before taking an adverse employment action, such as supplying an applicant or employee a notice that includes a copy of the consumer report the company used in reaching its decision, and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

The publication geared toward employers does contain some “helpful reminders for employers who pursue background checks on applicants or employees,” says Rachel Reingold Mandel, a shareholder in the Boston office of labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

The information presented in the document is especially useful in light of FCRA requirements “[losing] the spotlight recently,” says Mandel, “as the EEOC and state law anti-discrimination focus has gained traction.

“This publication helpfully reminds employers that it is important to both use background checks in ways that do not discriminate based on protected characteristics—race, color, sex and national origin, for example—and to follow [FCRA’s] technical requirements.”

Organizations and HR leaders “have worked to balance their obligations under the federal Fair Credit Reporting Act against their obligations under applicable anti-discrimination laws, including those enforced by the EEOC,” she says.

“This publication provides a helpful guide to the steps employers should follow to comply with both the FCRA and federal anti-discrimination laws,” continues Mandel, adding that employers would be wise to “keep in mind separate state-specific laws, including those that prohibit asking any criminal background questions on employment applications.”

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More Restrictions on Criminal-Background Checks

California appears to be the latest state to join the criminal-background-restriction bandwagon. A new law enacted last month amends the California Labor Code to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.

gavel and handcuffs -- 162424875“The good news is that [the law] doesn’t break entirely new ground, but instead modifies existing law,” says Brian Inamine, a LeClairRyan labor and employment attorney and shareholder in the firm’s Los Angeles office, in this release about it. “The bad news is that it represents one more hurdle that businesses have to contend with.”

Indeed, as my Nov. 13 news analysis on HREOnline points out, the hurdles are racking up. To date, 43 cities, counties and municipalities, and 10 states have passed “ban the box” legislation for public-only or public and private employers, making questions about criminal convictions on job applications illegal.

What’s more, as that story points out, there’s still a lot of confusion about what’s required of employers under the U.S. Equal Employment Opportunity Commission’s guidelines on criminal-background checks.

Actually, as it says, nothing’s really required. There’s no federal law being dictated in the guidelines, but failing to follow them could lead employers to discrimination charges under Title VII of the 1964 Civil Rights Act, which the guidelines are based on. The EEOC maintains criminal-history checks disproportionately impact minority candidates. For a rundown of some of the events and issues leading up to the EEOC’s guidelines, take a trip here through some of our earlier blog posts.

Another recent news analysis of mine looks at an additional potential punishment, under the Fair Credit Reporting Act, that Disney recently found itself ensnared in. In a class-action lawsuit, Culberson vs. The Walt Disney Company, Robert L. Culberson claims Disney illegally barred him from employment by failing to provide him with the proper adverse-action notice — required by the FCRA when an adverse-employment decision is based on any portion of a background check.

In that case, Culberson’s background check showed a criminal conviction on a battery charge from 1998 — when he was 19 years old — that had been expunged from his record in 2010. He claims he was not given the opportunity to correct the information before the company decided not to hire him, nor did Disney re-evaluate his application after the background-screening company, Sterling Infosystems Inc., eventually removed the conviction from his record and issued a new report.

As the new California law reminds us, and as the sources in all these linked stories and posts underscore, make sure you know what criminal-background laws govern the jurisdiction(s) you’re in and — equally important — what other laws might come in to play should you fail to follow proper procedures.

 

 

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