HOT TOPICS IN EMPLOYMENT LAW Thomas L. McCally, Esq. Equity Member, Carr Maloney P.C. 2000 L Street,...

HOT TOPICS IN EMPLOYMENT LAW

Thomas L. McCally, Esq.

Equity Member, Carr Maloney P.C.

2000 L Street, NW, #450, Washington, D.C. 20036

(202) 310-5506 ▪ [email protected]

Copyright © 2013 by Carr Maloney P.C. All rights reserved. No portion of this publication may be reproduced without prior written permission. This publication and program are intended to provide current and accurate information about the subject matter covered. This publication as well as orally conveyed information should not be construed as legal advice.

New Developments and Trends

• EEOC Cracks Down on Background Checks• NLRB Increasingly Active• Social Media Issues• Expansion of Title VII

– Transgender/Sexual preference protected?– Strict liability for sexual harassment expanded?– Personal appearance/religious accommodations?

• Mandatory Retirement Age, Even in Law Firms, Frowned Upon By the EEOC

• GINA – Genetic Information Nondiscrimination Act• Co-Employment Status • Recent Supreme Court Rulings

EEOC Crackdown on Criminal Background Checks

Press Release - April 25, 2012

EEOC Issues Enforcement Guidance

Commission Updates Guidance on Employer Useof Arrest and Conviction Records

EEOC Focuses on Cases Involving Discriminatory Policies Impacting Multiple Employees

• The EEOC recently unleashed its four-year plan to bolster efforts against discriminatory policies that impact multiple employees – such as employment screening policies.

• Under the new plan, the agency will set a baseline number of “systemic” cases that must be maintained in the litigation docket.

• That number will increase by a certain percentage each year until 2016.

• Under this new quota system, the EEOC will prioritize cases involving policies that impact multiple employees when choosing which cases to litigate.

Failure to Comply withEEOC Guidelines = Exposure

U.S. Equal Employment Opportunity CommissionPress Release - January 11, 2012

Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans

Company’s Former Use of Criminal Background Checks Discriminated Based On Race, Agency Found

Office of Federal Contract Compliance Programs (OFCCP) News Release – June 25, 2012

Baldor Electric to Pay $2 Million to Settle Hiring Discrimination Case with U.S. Labor Department

Agreement Includes Back Wages and Interest, Some Job Offers, for 795 Female and Minority Applicants Denied Positions at Fort Smith, Arkansas, Facility

Weighing the Risks

Weighing the Risks

If You Don’t Conduct Background Checks:

•Potential exposure to negligent hiring/retention claims

•Potential exposure to negligence claims based on known risks associated with job

•Duty to provide safe workplace

•Potential increased risk of workplace violence

Weighing the Risks

If You Don’t Conduct Background Checks:

• Potential harm to business (theft, embezzlement, misuse of proprietary information) if employee engages in criminal activity on the job

• Damage to Reputation of Firm

• Economic loss due to theft

• Bad working environment

In light of these risks, many employers elect to use criminal background checks as a screening and investigative tool.

Time to Check up on Your Criminal Background Check Policies

New Guidelines: The EEOC’s Position

Arrests Should Not Be Considered

According to the recent EEOC Guidelines:

•In most cases, employers cannot consider the arrest record of a job applicant. However, the one exception is that employers can look at the underlying conduct that caused the arrest. For example, if an applicant is arrested for sexually assaulting a child, a day care center can consider the underlying context of the arrest in making hiring decisions.


According to the recent EEOC Guidelines:

•The arrest itself may not be considered, as the EEOC points out that being arrested does not make one guilty of criminal behavior. The focus must be on the events that occurred and how the employee’s behavior impacts the employee’s qualifications for the job.

•The EEOC also notes that due to racial profiling, many law-abiding citizens may well be arrested without cause and thus arrest records often say more about the racial demographic of job applicants than whether they are qualified for the job.


Convictions

•“As a best practice, and consistent with applicable laws, the EEOC recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”


Consideration of Convictions

•Employers can consider convictions in the hiring process – with caution. The EEOC’s updated guidance provides that criminal records that warrant exclusion should be limited to convictions:

•related to the position in question, and

•consistent with business necessity.

Criminal Background Check Policy

Exclusion for Criminal Conviction Must Be Job Related and Consistent with Business Necessity

•Title VII shifts the burdens to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

•Griggs v. Duke Power Company, 401 U.S. 424 (1971)

“bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and “measures the person for the job and not the person in the abstract.”

Convictions

Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity

To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity, the employer needs to show:

•the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

Convictions

Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

1. The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or

2. The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors) = Individualized Assessment.

ConvictionsIndividualized Assessment

The employer can show that a hiring decision is consistent with business necessity by demonstrating that, in screening applicants for criminal conduct, it

1.Considers at least the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job in question, and

2.Gives an applicant who is excluded by the screen the opportunity to show why he should not be excluded (Individualized Assessment).

Green* Factors and Criminal Conduct Screens (Individualized Assessment)

The Green factors provide the starting point for analyzing how specific criminal conduct may be linked to particular positions. The three Green factors are:

• The nature and gravity of the offense or conduct;

• The time that has passed since the offense, conduct and/or completion of the sentence; and

• The nature of the job held or sought.

*Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)

Green Factors and Criminal Conduct Screens

A. The Nature and Gravity of the Offense or Conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss).


B. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard.


C. The Nature of the Job Held or Sought

While a factual inquiry may begin with identifying the job title, it also encompasses:

1. Nature of the job’s duties (e.g., data entry, lifting boxes, security),

2. Identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and

3. The environment in which the job’s duties are performed (e.g., office, working alone or with others, out of doors, in a warehouse, in a private home).

Individualized Assessment

Best Defense If Using Criminal Background Screens

Individualized assessment generally means:

•Employer informs the individual that he may be excluded because of past criminal conduct;

•Provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and

•Considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.


The individual’s showing may include information that:

• The individual was not correctly identified in the criminal record, or that the record is otherwise inaccurate

• The facts or circumstances surrounding the offense or conduct;

• The number of offenses for which the individual was convicted;

• Older age than at the time of conviction, or release from prison;


The individual’s showing may include information that:

• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;

• The length and consistency of employment history before and after the offense or conduct;

• Rehabilitation efforts, e.g., education/training;

• Employment or character references and any other information regarding fitness for the particular position; and

• Whether the individual is bonded under a federal, state, or local bonding program.


Employers Can Also Use It As a Defense

Individual must be given an opportunity to explain the criminal conviction

• Written explanation from individual

− If not truthful then independent reason not to hire and could help to limit damages in litigation

− Failure to provide information could be used as reason to exclude


Individual must be given an opportunity to explain the criminal conviction

• Have individuals obtain certified records if they dispute findings of the background check investigation or provide written explanation as to why the conviction would not impact ability to perform job.

− Failure to obtain records or to explain their position could be a reason to exclude and help limit damages

• Link facts of criminal acts to reason not hired: facts of conviction to risks associated with the job

• Job related and business necessity

How Can Individual Assessment Work to Employer’s Advantage?

• Key Point: EEOC Guidelines specifically state: If the individual does not respond to the employer’s

attempt to gather additional information about his background, the employer may make its employment decision without the information.

• Key Point: Policy must be based on objective factual data that an employer can point to

− EEOC will consider

− Jury might consider

Employer Best Practices According to the EEOC

The following are examples of best practices for employers who are considering criminal record information when making employment decisions:

• Eliminate policies or practices that exclude people from employment based on any criminal record.

• Train managers, hiring personnel, and decision makers.


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 (job description).

− 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.


Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

− Include an individualized assessment. (Key Point: Required in almost all circumstances.)

− Record the justification for the policy and procedures.

− Note and keep a record of consultations and research considered in crafting the policy and procedures.

− Be consistent.

What You Should Do: Review Applications

• Consider removing questions regarding arrests

• Consider removing general questions regarding convictions

• Alternatively, should you elect to continue to ask the general question about convictions, include a statement on the application indicating that a conviction is not an automatic bar to employment, then subsequently conduct an individualized assessment

Be Aware of Other Laws

Ban the Box- State and Local Legislation

• An increasing number of states, counties, and cities have passed so called “Ban the Box” legislation which seeks to limit discrimination against applicants with a criminal record.

• Some state’s laws only apply to public employers, and others include private employers and have an impact on small business.

• Review of City & County Ban the Box Policies – http://nelp.3cdn.net/abddb6b65a14826f92_n5m6bz5bp.pdf

Increase In Claims Filed With/By The NLRB

THE NATIONAL LABOR RELATIONS ACT:

IT APPLIES TO NON-UNION WORKPLACES!!

NLRB Increasingly Active

• The National Labor Relations Act applies to unionized AND non-union workplaces.

• Non-unionized employers have become an increasingly frequent target of the NLRB over the last two years.

• Alternative forum for disgruntled employees.

NLRB’S Jurisdiction OverLaw Firms

• The NLRB has jurisdiction over law firms and legal assistance programs where gross annual revenues are $250,000 per year.

• No minimum number of employees.

What the National Labor Relations Act Protects:

EMPLOYEES ARE PERMITTED TO ENGAGE IN PROTECTED CONCERTED ACTIVITY

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.

Protected Concerted Activity

Employees who are not represented by a union have rights under the NLRA. Specifically, the National Labor Relations Board protects the rights of employees to engage in “concerted activity,” which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

Protected Concerted Activity

A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

Examples of Protected Concerted Activity:

• Two or more employees addressing their employer about improving their pay or discussing work-related issues beyond pay, such as safety concerns, with each other.

• An employee speaking to an employer or other employees on behalf of one or more co-workers about improving workplace conditions.

• Any employee complaining about firm practices, policies or procedures.

Recent NLRB Decisions to be Aware of:

• Provisions in employee handbooks that require confidentiality violate the NLRA.

• Restrictions on an employee’s ability to comment about work or working conditions, even on social media, violate the NLRA.

• Confidentiality and anti-disparagement provisions in employee contracts violate the NLRA.

• Requiring confidentiality of witnesses who participate in investigations violates the NLRA.

NLRB Assaults Employment Policies in Handbooks:

DirecTV U.S. Direct Holdings, LLC, 359 NLRB No. 54 (Jan. 25, 2013)

The Board struck down four company policies, including the Company's rules regarding confidentiality and company information. The confidentiality provision instructed employees to "[n]ever discuss details about your job, company business, or work projects with anyone outside the Company" and to "[n]ever give out information about [the Company's] customers."

NLRB Focus on Social Media

Hispanics United of Buffalo, Inc. v. Ortiz, No. 3-CA-27872 (NLRB Sept. 2, 2011)

NLRB concluded that employees’ Facebook discussions (which included use of profanity and offensive language) were protected because they represented the “first step towards taking group action.” The ruling was based on the employees’ right “to discuss matters affecting their employment amongst themselves.”

NLRB Focus on EmploymentAgreements

Quicken Loans, Inc., Case No. 28-CA-75857 (January 2013)

Six co-workers were sued for breaching their employment contracts, apparently by violating the non-compete and no-raiding provisions of the agreement. In return, one employee filed an unfair labor practice in which she contended that two of the provisions in the contract violated the NLRA. The ALJ found that the provisions- a confidentiality and a non-disparagement provision- did, indeed, violate employees' Section 7 rights as provided by the NLRA.

Can An Employee Be Fired Over Derogatory Statements Made On Social Networking Sites?

THE NLRB SAYS NO!

Dawnmarie Souza, an employee of a privately-owned ambulance service, American Medical Response of Connecticut, Inc. (AMR), was fired over negative remarks she had made against her employers via Facebook. Souza was quoted as having sarcastically said that she loves "how the company allows (a psychiatric patient) to become a supervisor."


Souza was terminated partly on the grounds that her remarks had directly violated the company's social media policies, which prohibited employees from making such comments about employment on social networking sites.


NLRB filed a complaint against AMR, alleging that the company "maintained and enforced an overly broad blogging and internet posting policy" and that the policy contained unlawful provisions which interferes with employees in the exercise of their right to engage in protected concerted activity.”

*The case settled before trial.

What Should You Do?

• Review all contracts (severance/release agreements) and policies to ensure that any restrictions are narrowly tailored.

• Implement open door policies to address employee concerns.

• Ensure that all policies, including non-solicitation policies, are enforced in a uniform manner that does not target concerted activity.

• Carefully review all adverse actions to determine if there was any involvement in protected concerted activity.

• Document all legitimate, non-retaliatory reasons for the adverse action.

Employment Issues Involving Social Media

• Can you access employee sites?

• Can you control or restrict what an employee may say or do on a private site?

• How can you protect yourself from liability?

• What about ethical considerations and client confidentiality?

• Who owns firm sponsored sites?

Controlling What an Employee Can Post

• Many employers have enacted “Social Media Policies” that attempt to restrict an employee’s ability to comment about the workplace on social networking and other internet sites.

• However, many of these policies may violate the NLRA.

• Policies should be reviewed to ensure compliance with the NLRA as well as other laws.

Accessing Employee Sites

• In an effort to control employee conduct on social networking sites, some employers request/require that employees provide usernames and passwords to private sites.

• Six states- California, Delaware, Illinois, Maryland, Michigan and New Jersey- enacted legislation in 2012 that prohibits requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account.

• Other states have introduced similar legislation.

What You Can Do to Protect Yourself

• Require disclaimers.

• Require compliance with company policies, such as policies against harassment and discrimination.

• Protect confidential/proprietary/client information (general statements are not sufficient).

• Request that all employees report anything that they see on another employee’s website that violates company policy.

• Beware of policies that violate the NLRA.

• Require review of any legal commentary by firm.

Ethical Considerations and Client Confidentiality

Risks

• Inadvertent Attorney/Client Relationships

• Client Confidentiality

• Conflicts of Interests

• Communications/Advertising

• Unauthorized Practice of Law

• Duty of Candor

• Improper Conduct and Misconduct

Expansion of Title VII

• Transgender/Sexual preference protected?

• Strict liability for sexual harassment expanded?

• Personal appearance/religious accommodations?

Sexual Preference and Transgender Status

The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

Sexual Stereotypes =Sex Discrimination

The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011).

Personal Appearance/Religious Accommodation

Where problems arise:

• Dress Codes (Religious, National Origin, Race Discrimination?)

• Prohibition of Tattoos or Piercings (DC HRA – “Personal Appearance” = is a Protected Status)

• Work Schedules

What You Must Do:

Provide reasonable accommodations for an applicant or employee's sincerely held religious belief, so long as such accommodations do not pose undue hardship or jeopardize the safety and health of clients or employees.

Mandatory Retirement and the ADEA

EEOC Press Release 4-11-12

New York Law Firm Settles EEOCAge Discrimination Suit

Kelley Drye & Warren Agrees to End Mandatory Retirement Policy, Pay $574,000 to Partner Forced to Give Up Ownership Interest in Order to Continue Working

Mandatory Retirement

• In 2007, Winston & Strawn LLP settled a suit challenging various aspects of its alleged “decompression” policy that reduced partners’ pay after age 65.

• Also in 2007, Sidley Austin LLP paid $27.5 million to settle an EEOC suit brought on behalf of 32 ex-partners who were “de-equitized” allegedly on the basis of age. The Court found that Sidley partners may qualify as “employees” protected by the ADEA, rather than “partners” who would not fall within the Act’s coverage because they are employers rather than “employees.”

Federal FEP Laws

GINA: Genetic Information Nondiscrimination Act

(15 or more employees)

Employers may not request or acquire genetic information or use genetic information with respect to employment-related decisions. Harassment because of genetic information is also prohibited. GINA also prohibits any form of retaliation.

Federal FEP Laws

GINA: Genetic Information Nondiscrimination Act continued

Genetic information includes information about an individual’s genetic test, a genetic test for a family member, and the manifestation of a disease or disorder in an individual’s family members (or family medical history). This latter category is relevant because family medical history is often an indicator regarding an individual’s risk or increased risk of disease, disorder, or medical condition.

Federal FEP Laws


Congress did not intend to impose liability when an employee voluntarily shares information that is overheard (the so-called “water cooler” qualification).

Federal FEP Laws


Similarly, a casual question between colleagues, or between a supervisor and subordinate, concerning the general well-being of a family member would not violate GINA (e.g., “How’s your son feeling today?”, “Did they catch it early?” asked of an employee whose family member was just diagnosed with cancer, or “Will your daughter be OK?”).

Federal FEP Laws


Nor would the receipt of genetic information that was not solicited or sought by the employer (e.g., where a manager or supervisor receives an unsolicited email from a co-worker about the health of an employee’s family member).

Employers would not be liable if a supervisor or manager receives family medical history directly from an individual following a general inquiry about the individual’s health (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer) or a question as to whether the individual has a manifested condition.

Federal FEP Laws


However, an employer that inadvertently acquires genetic information about someone’s family member in response to a general question about the family member’s health may not then ask follow-up questions that are probing in nature, such as whether other family members also have the condition, or whether the individual has been tested for the condition.

Co-Employment Status

What You Need to Know

Co-employment is a relationship between two or more employers whereby each has the legal responsibilities to the same employee.

Co-employment can occur when individuals are misclassified.

•Loaned employees

•Temporary employees

•Independent contractors/Vendors


Risks of Co-Employment: both the firm and the agency/vendor may be liable for employment claims.

•Discrimination/Harassment against or by the individual

•FMLA

•Benefits/ERISA

•NLRA

•Wage and Hour

•Taxes


Co-Employment Determined by Common Law Agency Principles

The Darden Factors: “Indicia of Control”

1.The skill required

2.The source of the instrumentalities and tools

3.The location of the work

4.The duration of the relationship between the parties

5.Whether the hiring party has the right to assign additional projects to the hired party

6.The extent of the hired party’s discretion over when and how long to work


Co-Employment Determined by Common Law Agency Principles continued

The Darden Factors: “Indicia of Control”

7. The method of payment

8. The hired party’s role in hiring and paying assistants

9. Whether the work is part of the regular business of the hiring party

10. Whether the hiring party is in business

11. The provision of employee benefits

12. The tax treatment of the hired party

Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992).


NRLB Focuses on “Economic Dependence” or “Economic Realities”

•Recent decision held McDonalds was joint employer with all franchises.


Best Practices for Avoiding Joint Employer Status•Contracts with vendors:

– Statement – vendor is employer– Vendor hire/fire/transfer– Indemnity provisions• Assign workers to staffing agency locations if feasible• Workers’ hours and days off work set by staffing

agency/vendor• Workers should participate in staffing agency/vendor

benefits plans, if any, rather than the firms benefits plans


Best Practices for Avoiding Joint Employer Status continued

•Provide payment by job with no benefits or expenses

•Specify that individual is responsible for all taxes

•Specify a contract-termination term, usually under one year

Recent Supreme Court Rulings

Vance v. Ball State University,133 S.Ct. 2434 (U.S., 2013)

The Court narrowly defined who counts as a “supervisor” whose discrimination is automatically attributed to an employer. A true “supervisor,” the court decided in a 5-4 decision, must have the ability to hire, fire, promote, or reassign a co-worker.

Recent Supreme Court Rulings

Nassar v. University of Texas Southwestern Medical Center, 2013 WL 3943554, 1 (C.A.5 (Tex.), 2013)

Title VII retaliation claims must be proved according to principles of the higher “but—for” causation standard rather than the mixed—motive test.

State Courts May Not Follow the Supreme Court’s Lead

State courts analyzing claims brought under state or local anti-discrimination laws may not be bound by the Supreme Court’s decision, and may apply different and lesser standards.

Even with Higher Supreme Court Standard – “But For”

Practical problems trying retaliation cases:

•Evidence of underlying discrimination admissible to show “motive and intent”

•Harassment claims brought in conjunction with retaliation claim – All evidence of underlying discrimination likely admissible

Even with Higher Supreme Court Standard – “But For” continued

For example, in a Maryland case involving claims under a local county code, the state Court may elect to follow prior state decisions in which the lesser “motivating factor” standard was applied. Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 17 A.3d 676 (Md.,2011.)

Questions?

HOT TOPICS IN EMPLOYMENT LAW Thomas L. McCally, Esq. Equity Member, Carr Maloney P.C. 2000 L Street,...

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Transcript of HOT TOPICS IN EMPLOYMENT LAW Thomas L. McCally, Esq. Equity Member, Carr Maloney P.C. 2000 L Street,...