Posts belonging to Category legislative

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.



Broadening Definitions Under the ADA

In case you missed it, employers were recently given further insight as to what qualifies these days as a disability under the ADA Amendments Act of 2008.

On Jan. 23, the Fourth Circuit Court of Appeals ruled that, as long as a temporary impairment is sufficiently severe, it would qualify as a disability, reversing a district court decision regarding a wrongful-discharge claim.

200249331-001The case involved Carl Summers, who, as a senior analyst for Altarum Institute, fell and injured himself while exiting a commuter train. Summers, who underwent leg surgery and was told by doctors he might not be able to walk normally for at least seven months, was provided with short-term-disability benefits. He suggested that he start working part-time from home and gradually return to full-time work, but representatives from Altarum failed to follow up on Summer’s return-to-work plan or suggest any alternative reasonable accommodation. The firm eventually terminated him, installing another analyst in his position.

In Sept. 2012, Summers filed a complaint under the ADA, alleging he was wrongfully terminated because of his disability.

In its ruling, the Fourth Circuit said “an impairment is not categorically excluded from being a disability simply because it is temporary” and that Summer’s alleged impairment “falls under the amended Act’s expanded definition of disability.”

I asked Paul Mollica, of council with Outten & Golden LLP in Chicago, for his thoughts on what the decision—which many believe could be the first ruling of its kind under the ADAAA—means for employers.

Going forward, he told me, employers are going to need to accept that the “lessons learned up to this point aren’t true anymore” and “retool” accordingly.

A Workplace-Centric SOTU

President ObamaFrom the employer’s and HR leader’s perspectives, there were plenty of reasons to tune in to last night’s State of the Union Address—from minimum-wage issues and gender-pay equality to the announcement of a new savings bond designed to help working Americans start their own retirement savings.

For example, President Barack Obama announced an executive order that will require all federal contractors to raise their minimum wage to $10.10 per hour. He urged private employers to take similar action, pointing to organizations such as Costco as examples of large companies that had taken the initiative to raise pay rates to more than $10 an hour on their own.

President Obama also advocated the enactment of legislation that would increase the federal minimum wage to $10.10 per hour. “I am going to call this the 1010 Act,” he said, and urged Congress to pass the bill in 2014. “Let’s give America a raise,” added the president, to rousing applause.

While “the scope of the [aforementioned] executive order is unclear,” we should expect to see movement on the minimum-wage front in the days and months to come, even if it occurs first at the state level, says Connie Bertram, a Washington-based partner in the labor and employment department at Proskauer.

“I do think we’re going to see increases [in minimum wage] at the state level,” says Bertram, who is also head of the firm’s D.C. labor employment practice and co-head of Proskauer’s whistleblowing and retaliation, and government regulatory compliance and relations groups. “I doubt we’ll see across-the-board federal increases in the near future. But very often, when the federal government can’t take action, the states step in.”

Increasing pay rates and job opportunities was a recurring theme on Tuesday night, as President Obama announced a White House initiative geared at aiding the unemployed, and later this week will meet with a group of CEOs and business leaders in an effort to open up more opportunities for the long-term unemployed. And, as HRE Senior Editor Andrew R. McIlvaine writes today, the president also shared plans for improving the nation’s economy by connecting out-of-work individuals with skills-starved employers and strengthening the manufacturing sector.

Obama called on Congress to take action on other fronts as well, reiterating his call for passage of the Paycheck Fairness Act, which would strengthen the Equal Pay Act.

“As President Obama said, it’s time to leave ‘Mad Men’ attitudes and policies behind and adopt programs that allow people to hold jobs and care for their families,” said Debra L. Ness, president of the National Partnership for Women & Families, in a statement.

“We need Congress to advance the Paycheck Fairness Act, to finally reduce the punitive wage gap,” said Ness, adding that “we need a higher minimum wage, unemployment benefits we can count on and a real chance at retirement security.”

Indeed, retirement saving was on President Obama’s radar as well, as he offered details of a new retirement savings account—”myRA”—that he hopes will aid American workers in saving adequately for retirement.

“It’s a new savings bond that encourages folks to build a nest egg,” said President Obama. “MyRA guarantees a decent return with no risk of losing what you put in.”

The accounts, he explained, would be geared toward workers whose employers don’t offer traditional retirement accounts such as 401(k)s, and would essentially function like a Roth IRA, with government backing akin to that of a savings bond. As such, the balance of a myRA account could not go down, he said, with the investments having principal protection.

An initial pilot program will include companies that agree to enroll by the end of 2014, and workers making less than $191,000 annually will be able to invest, added President Obama.

The essential concept behind myRA accounts “has been around for a while,” says Lynn Dudley, senior vice president of retirement and international benefits policy with the Washington-based American Benefits Council, who likens the new myRA bond to R-bonds.

While more details on myRAs have yet to emerge, the accounts may prove to be an attractive option for many employers, especially those with large numbers of part-time or temporary workers, or employees who are in and out of the workforce, says Dudley.

“If a large employer is already offering a retirement plan, [it's] not going to eliminate that plan and send everyone to an [myRA] bond. [It's] going to keep [its] plan,” she says. “This is really targeted to people who aren’t already participating, or aren’t eligible to participate. It’s a select population, but it’s a growing one.

“And [such an account] is relatively easy to open up and offer through an employer,” adds Dudley. “It’s easy for HR to administer, and it’s portable for workers. The one drawback is that it’s an investment with a guaranteed rate of return, so it’s a conservative investment. But it’s a good idea.”

Whistleblower Protections Keep Expanding

whistleTwo weeks from today, a bill will take effect that expands protection for whistleblowing employees in California. While only applicable to companies operating in the Golden State, one new wrinkle in the legislation should perk up the ears of employers everywhere.

On Jan. 1, 2014, California’s Senate Bill 496 will increase whistleblower protections for employees who have made internal reports alleging illegal behavior internally to a person with authority over the employee or to another employee with the authority to investigate, discover or correct the reported violation.

Interestingly, the law also subjects employers to liability for “anticipatory retaliation,” meaning companies can be held accountable for retaliating against an employee based on the mere belief that he or she might be a whistleblower.

Kenneth Sulzer, co-head of the California labor and employment law group with international law firm Proskauer, offers up an example.

“Say you have an employee who prepares an expense report for their manager, and that employee suspects the expenses were fudged a bit. That employee asks some questions, and is later fired for something else,” explains Sulzer. “But that employee has emails including those questions, and believes the supervisor anticipated he or she was going to make a complaint. Those emails record that the employee asked the questions, and, legally speaking, the employee has a factual leg to stand on.”

Again, such a claim could only be made in California at this point, and whether other states pursue similar legislation remains to be seen. But the enactment of the California bill signals the latest state-level move to provide a wider safety net for whistleblowers, and employers throughout the U.S. should take note, says Sulzer.

“We expect to see a substantial expansion in whistleblower protections in states around the country,” says Sulzer. “Driving this trend are several high-profile cases that have stoked the interest of the plaintiff’s bar, feeding on the public’s distrust of institutions, disparity of income and federal legislation such as the False Claims Act, Sarbanes-Oxley and Dodd-Frank, and the SEC whistleblower bounties.”

Provisions that leave employers potentially liable for “anticipatory retaliation,” however, could be “more problematic for employers than many other whistleblower protection laws,” says Sulzer, “as it provides a cause of action where an employee does not actually engage in whistleblowing, but is merely expected to do so, and provides a cause of action even where the employee’s job is to point out flaws and review quality of work.”

What’s Missing from the Retirement Debate

CapitolThe paternalistic employers of days past are long gone — and will probably never return. That seemed to be the general consensus at the Employee Benefits Research Institute‘s biannual policy conference, held yesterday at the Shriners Auditorium Ballroom on a blustery cold day in Washington.

The big question, of course, is what will replace them — and do they even need to be replaced? EBRI, which is celebrating its 35th anniversary, convened an eclectic group of experts to debate what the future holds for employee benefits in the wake of the Affordable Care Act, the prevalence of defined-contribution retirement plans and the apparent unwillingness — or inability — of baby boomers to retire from the workforce. (The latest research from EBRI suggests DC plan participants are likely to, in some cases, end up better off than traditional defined-benefit plan participants.)

“When the [Employee Retirement Income Security Act] was passed in 1974, the question was whether it would be good or bad for employee benefits,” said Howard Fluhr, chairman of New York-based Segal Group, during a panel on the changing role of employers in employee benefits that was moderated by Business Insurance editor-at-large Jerry Geisel. “Well, for a while it was good, then it became bad, and then it became stifling. Now we’ve shifted to self-reliance as the end-all, be-all because of pressure from public policies. What it really means is, we’ve essentially shifted responsibility for managing volatility onto the backs of employees.”

Federal legislation and tax policy has been beset by the law of unintended consequences, said Fluhr, with the result that laws and regulations which were originally intended to strengthen employee benefits have, over the years, become so complex that employers were practically forced to dispense with the more-paternalistic benefits of years past. This has been accompanied by an embrace of “short-term thinking” among businesses and lawmakers, he said.

“We as a society have lost some control because we’ve lost sight of public policy, and employers have no control over that,” said Fluhr.

Larry Zimpleman, chairman and CEO of Des Moines, Iowa-based Principal Financial Group, urged attendees to not view the past with rose-tinted glasses.

“The good old days were not necessarily as good as we remember them,” he said. “We’ve moved the employee-benefits platform to be more voluntary. Why? Because employees like choice, employers like having control over costs, and defined-contribution plans and voluntary benefits lets them have that.”

He concurred with Fluhr, however, on the short-sightedness that is prevalent in policymaking these days.

“There haven’t been strong voices on both sides of the aisle in Congress on employee benefits for a long time,” said Zimpleman. “Remember when Sen. Ben Cardin, a Democrat, and Sen. Bob Portman, a Republican, worked together on the Pension Protection Act of 2006? Intitiatives like that have been drowned out by ideology-driven debates. And now there’s this mind-set that retirement benefits cost the U.S. government money — that’s destructive thinking.”

Indeed, for every $1 the government forgoes for tax-advantaged retirement plans, he said, it reaps $4 in tax revenue later on as retirees are able to continue spending. “The government more than gets its revenue back; it just has to wait a little longer for it,” said Zimpleman.

“The idea that, one way or another, we have to take care of one another has been lost in Congress,” said Fluhr.

When asked which is better — traditional defined-benefit plans or DC plans — Zimpleman took issue with the question. “The ideal is, both,” he said. “Hybrid plans … are a healthy approach.”

There’s more to come from this EBRI conference, so tune in this Monday …


Will the EEOC Be Updating National-Origin Guidance?

There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.

177818736-- public meetingSuch is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.

In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”

In his blog post, Kehoe describes some of testimony on both employer and employee sides:

Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”

He also explains what’s at stake:

Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”

And in signing off, he provides some worthy employer caution:

Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”




Sending IT Outsourcing Firms a Message

Corporations, particularly those seeking IT workers, have long complained about the limited number of H1-B visas available. You may recall the government ran out of these visas in less than a week in April. But the U.S. government would like employers in general — and IT outsourcing providers in particular — to know that if they’re thinking about getting around the system by obtaining visitor visas instead, they’d better think again. reports this morning that Bangalore, India-based Infosys has agreed to pay a $34 million penalty to the federal government over allegations that it was acquiring B-1 business visas in the place of H1-B visas, confirming that the Justice Department is serious about cracking down on employers attempting to get around the system. (The Wall Street Journal — subscription sitefirst reported yesterday that the settlement would be coming today.)

Infosys denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. In a statement released this morning, it said …

Those claims are untrue and are assertions that remain unproven.  The company’s use of B-1 visas was for legitimate business purposes and not in any way intended to circumvent the requirements of the H-1B program. Only .02% of the days that Infosys employees worked on U.S. projects in 2012 were performed by B-1 visa holders.”

No criminal charges were filed against the company. Further, its eligibility for federal contracts and access to U.S. visa programs would not be affected by the settlement.

At $34 million, the settlement has no doubt gotten the attention of anyone considering getting around the system in this way.

Late yesterday I asked immigration attorney Carl Shusterman to share his thoughts …

“I’ve been doing immigration law for close to 35 years and I have not seen a company that has tried to bring people here on visitor visas and put them to work in this way,” he told me. “I’m sure there have been a few individual cases that have not come to my attention,” but a fine of this [magnitude suggests the federal government believed this was being routinely done].”

Shusterman adds that he’s surprised leaders of a company this size would think they could get away with something like this.

A Broader Definition of ‘Reasonable Accommodation’

Meanwhile …

As the nation stays riveted on Washington’s dramatic avoidance of a default/continued-shutdown guillotine, I’ll venture to point out that legal events impacting employers have 93424272-- handicap parkingbeen rumbling along in other rings of this governmental circus.

A posting about this recent case, for instance, caught my eye — a ruling from the Fifth Circuit Court of Appeals that further broadens the Americans with Disabilities Act’s definition of “reasonable accommodation” to include — well, sort of — granting a free on-site parking space so an employee has an easier time getting to the door.

The ruling in the case, Feist vs. State of Louisiana, essentially takes employers beyond the ADA requirement that an employee be accommodated so he or she can accomplish the essential functions of the job to now include a guidance from the U.S. Equal Employment Opportunity Commission saying reasonable accommodation must include anything that enables workers “to enjoy equal benefits and privileges of employment.”

In this case, yes, a free parking spot — which Assistant Attorney General Pauline Feist requested of her employer, the Louisiana Department of Justice, due to osteoarthritis in her knee. (According to the case, she was denied the spot by her employer, filed a discrimination charge with the EEOC, was later fired for poor performance, and filed suit in the Fifth Circuit’s district court, claiming disability bias and retaliation. The district court ruled in favor of the Louisiana DOJ, but the appeals court took her side, essentially saying there was more to her accommodation than simply allowing her to do the essential functions of the job.)

“In short, the court said, there doesn’t need to be a link between an employee’s essential functions of a job and a request for reasonable accommodation,” writes‘s Dan Wisniewski in his post.

He cites this HR takeaway from Christopher Ward, writing on the Labor & Employment Law Perspectives blog:

The Fifth Circuit’s decision … follows a clear trend suggesting that employers must take a broad view of their obligations with respect to disabled employees. Following the Court’s conclusion, an employer’s accommodation analysis is not limited to an evaluation of whether a potential accommodation is reasonable as measured against an employee’s job functions; instead, the focus should be simply [on] whether the potential accommodation is reasonable … . Prudent employers should thus focus their accommodation analyses more on the reasonableness of potential accommodations themselves and put less emphasis on the accommodation’s impact on the employee’s ability to perform his or her job functions.

Just more to focus — or refocus — on as you let out the breath you’ve been holding, wondering if there’d be a government looming over you at all.

Severance Without the ‘Sweetener’

Ever said or written something you wished you could take back? Then you probably have some idea how Lucy Adams might be feeling right now.

200275121-001In Adams’ case, it’s the word “sweetener” that’s currently plaguing the BBC HR director. If you’ve been watching the news lately, you know that current and former BBC officials were grilled earlier in the week by the MPs on the House of Commons Public Accounts Committee over controversial severance payments that were made to senior managers who were terminated between 2005 and 2013. Many of those payments reportedly exceeded what was spelled out in their employment contracts.

One of those officials marched before the committee is Adams, who is accused of using the word “sweeteners” to describe the payouts.

Here’s how the Guardian describes the hearing …

At Monday’s hearing Adams said she could not recall using the word ‘sweetener’—which she described as a ‘strange term’—when asked repeatedly by Stephen Barclay, the Conservative MP and PAC committee member who obtained the email.

However, when the MP said it came from a leaked email in his possession, she conceded: ‘I may have used the term by means of an incentive to get to a swift resolution.’ ”

In the Guardian story, Barclay is quoted describing the term as a “ ‘damning illustration of the attitude at the top of the BBC’ towards six- and seven-figure payouts to departing executives” and shining “a light on the real culture of the HR department which saw payments [that went beyond] contractual terms as simply perks of the job.”

According to the piece, Adams “denied that she had instructed HR staff to be lax about paying handsome severance deals in an effort to reduce the senior-management headcount at the BBC.”

As a result of the uproar over her alleged role in the matter and her choice of words, some have called for Adams to immediately step down from her role as the BBC’s HR chief, in advance of her recently announced departure next April.  Accusations by the MP against Adams, who has headed HR at the BBC since 2009, reportedly brought cheers to the BBC newsroom.

I imagine it hasn’t been one of the better years for the BBC HR chief, especially the last week or so. But I think  a strong case could also be made that BBC controversy—and the principal role Adams is alleged to have played in it—hasn’t done the HR profession as a whole any favors either, at least not in the U.K. (Here’s a slightly over-the-top-piece that appeared in the Telegraph.)

I’ve come to appreciate many of the British TV sagas that have made their ways to U.S. shores, like Downton Abbey and State of Play. But this is one real-world drama we all probably would have been better off without.

Fast-Food Workers Strike Again

Even on a normal day, you’re not likely to find me frequenting a fast-food restaurant. But yesterday seemed like a particularly good day to stay away.

By now, you’ve no doubt heard that workers at fast-food restaurants such as McDonald’s, KFC and Burger King in nearly 60 cities (ranging from Atlanta and Kansas City to Springfield, Ill., and San Lorenzo, Calif.) walked out of their establishments in protest over low pay. The workers are seeking a boost in their hourly wages to $15 an hour. (According to the Service Employees International Union, the average pay of these workers is around $8.94 an hour—though many earn the federal minimum wage of $7.25.)

148115569Though similar walkouts by fast-food workers occurred over the past year, this is reportedly the largest. (In case you’re wondering, the Bureau of Labor Statistics reports there were 19 major strikes and lockouts involving 1,000 or more workers lasting at least one shift in 2012, unchanged from 2011.)

USA Today reports that, in Detroit, a dozen workers didn’t show up for their shift at a McDonald’s on 8 Mile Road, forcing the closure of the dining room there, while another protest took place at a McDonald’s on West Grand Boulevard. About 30 workers in Raleigh, N.C., meanwhile, picketed outside a Little Caesars.

In New York and Chicago, Bloomberg reports, “passersby demonstrated little support for the workers and there were comments about $15 an hour being too high for entry-level jobs. Moments after protesters left a Wendy’s in downtown Manhattan, about 20 people piled into the store for lunch. When chanting strikers entered the Chicago McDonald’s, workers continued to pour coffee and bag food for a throng of customers.”

If one of the strikers’ goals is to have their voices heard, they definitely succeeded. Pretty much every mainstream news outlet in the universe picked up on the story. Still, few expect these workers are going to see $15 an hour wages anytime soon. “This is a more widespread [action] and involves more cities,” says Sonya Madison, an attorney with Counsel on Call based in Atlanta. “But I do think the results may be similar to before, in that you’re dealing with franchises, which aren’t making millions of dollars. It’s going to be difficult for them to raise wages.”

If there’s a change, Madison adds, “it’s going to occur on the legislative level.”

As most of you know, President Obama pushed to raise the federal minimum wage to $9 an hour (the last time the minimum wage was increased was in 2009). But with stiff resistance in Congress, that probably won’t happen anytime soon as well.

Happy Labor Day, BTW.