EEOC (Federal) Issues New Guidance on Criminal Background Checks

April 30, 2012

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued new Enforcement Guidance on criminal background checks, after the Commissioners approved it in a 4-1 vote. The EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The EEOC stated that guidance was needed to address a 2007 decision from the U.S. Court of Appeals for the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007), that criticized past Guidance. It also said new Guidance was needed to address the rise in conviction rates generally, and the disproportionately high conviction rates of African American and Hispanic men. Finally, it said the new Guidance was needed to address the increasing availability and ease with which criminal background checks can be conducted and the widespread use of such checks by employers.

The Guidance describes the circumstances under which use of arrest and conviction records in hiring may run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) under either a disparate treatment of disparate impact theory. When making employment decisions based on conviction record employers need to take the following factors into consideration:

  • The nature or gravity of the offense or conduct;
  • The time elapsed since the offense, conviction; and/or completion of the sentence; and
  • The nature of the job sought or held.

In the Guidance, the EEOC also discusses two circumstances in which an employer’s criminal conviction policy will “consistently meet” Title VII’s “job related and consistent with business necessity” defense. According to the Commission, employers who are able to validate their use of background screening policies and practices or to develop a targeted screen using the factors above and provide employees with criminal records an opportunity for an “individualized assessment” will meet the defense.

 The EEOC also made clear that compliance with another federal law, such as the FDIC Act, which requires banks to conduct criminal background checks on applicants and restricts their hire of individuals with certain conviction histories, is a defense to a claim of discrimination under Title VII. The Guidance also clarifies that compliance with federal statutes and regulations governing eligibility for occupational licenses and registration is also a defense to a Title VII claim.

Following its interpretation of the legal requirements, the Guidance offers best practice tips for employers that include:

  • § Eliminate policies that impose an absolute bar to employment based on any conviction;
  • § Train hiring managers about appropriate use of conviction history in hiring and promotion, and separation;
  • § Tailor screening procedures to ensure that they are job related and consistent with business necessity;
  • § Do not ask applicants for disclosure of convictions that are not job related and consistent with business necessity; and
  • § Keep information about applicants’ and employees’ conviction history confidential.

What Employers Should Do Now:

  • § Review background screening policies and practices in light of the new guidance; and
  • § Make adjustments needed to the extent practices cannot be justified as job related and consistent with business necessity.
  • § Recruiters and job interviewers must be trained in connection with the EEOC’s Guidance in order to be credible witnesses in any challenge to the employer’s hiring, promotion, or separation decision-making.

Note: California has already had a similar law


April 22, 2012

Wage Protection Act Template Effective January 1, 2012, Has Been Updated

California employers trying to comply with the recently enacted Wage Theft Protection Act should take note that the Labor Commissioner has again modified the notice template, effective April 12, 2012.  The new law, which went into effect January 1, 2012, requires California employers to provide non-exempt new hires with written notice of wage and related information.  Most of the information required to be provided is set forth in the statute itself.  However, the Labor Commissioner has authority to prescribe additional categories of information to be provided in the notice.  Given that authority, the Labor Commissioner was also tasked with publishing a template that employers can use to satisfy their notice obligations.  Causing challenge to employers is the fact that the Labor Commissioner waited until close to January 1 to publish any template and then prescribed additional content beyond that set forth in the text of the statute.  If that is not confusing enough, the Labor Commissioner’s office cannot seem to make up its mind about the contents of the template or the requirements of the Act.  The Labor Commissioner has at least twice revised the FAQ on the Act’s notice requirements, and has now issued a revised template.  Employers who downloaded the original template will want to review the newly published template and newly revised FAQ.  Most of the changes are fairly minor, but the newly revised template has different language on the subject of whether there is a written or oral employment agreement.  It appears that this was in response to concern from employers that checking one of these boxes suggests the employee actually has some sort of employment agreement, weakening the at-will nature of the employment relationship.  The new template has been revised to make clear that all this is referring to is whether the rate of pay is set forth in writing or was communicated only verbally.  The revisions also make clear that the acknowledgement of receipt portion is optional, not mandatory.  The new revised template is available at Employers will want to review these forms to ensure compliance.  Unfortunately, there is no practical way for employers to stay apprised of continued changes by the Labor Commissioner going forward other than to periodically check the Labor Commissioner’s website.  I will of course try to report on changes on this blog.

Employee Rights Posting Found to be Unlawful! No Posting Required by the End of April.

A South Carolina District Court ruled that the NLRB did not have authority to mandate the Employee Rights Poster.  The ruling is in conflict with the only other court to rule on the issue thus far–the District Court for the District of Columbia–and that decision is on appeal.  Well, as a result, the D.C. Circuit Court of Appeal granted the National Association of Manufacturers’ request for a temporary injunction enjoining the NLRB’s posting requirement pending appeal.  The court reasoned that the uncertainty regarding enforceability of the posting requirement counsels in favor of temporarily preserving the status quo pending appeal. 

In response to the DC Circuit’s order, the NLRB has announced that is postponing its mandate until the courts finally rule on the legality of the posting requirement.  The NLRB’s Chairperson announced:  “In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.” 

Based on this development, employers are not required to post the NLRB poster on or before April 30.  I will continue to keep you updated.

A Victory for California Employers Regarding Breaks!

April 15, 2012

The California Supreme Court has finally issued its long-awaited decision in Brinker v. Superior Court, laying to rest some greatly litigated issues surrounding California’s meal break requirements.  The biggest issue on which employers were awaiting guidance is whether employers are required to provide non-exempt employees the opportunity to take a 30-minute meal break, or whether employers must ensure that employees comply and perform no work for a full 30 minute period.  On this issue, the Court held favorably for employers.  The Court held that an employer satisfies its obligations if it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”  The Court specifically held that the law does NOT require employers to ensure no work is performed during the break, so long as the employer provided the break.  The employer will not be liable to an employee who voluntarily chooses to perform work during his or her break or who chooses not to take a full 30 minute break.  However, if an employer encourages the employee to do work during the meal break or otherwise effectively precludes the employee from taking a 30 minute meal break, the employer may then be liable for failing to provide required breaks.

The Court also addressed the issue of WHEN meal breaks must be provided.  The Court made clear that California law requires a meal break to be provided at or before the end of the fifth hour of work (unless the employee’s shift is no more than 6 hours and the employee has waived the meal break).  The Court rejected the plaintiff’s argument that employees are entitled to a second 30 minute meal break for every additional five hours worked.  The plaintiff had argued that if an employee takes an early lunch (e.g. after 2 hours of work) and then works five more hours, the employee would be entitled to a second 30 minute meal break.  The Court held that there is no such “rolling” five hour requirement for providing additional meal breaks.  (Employers should note, of course, that if an employee works a shift in excess of 10 hours, the employee is entitled to a second 30 minute meal break.)

In addition to addressing these meal break issues, the Court also addressed California’s rest break requirements.  In a somewhat surprising ruling, the Court interpreted California’s rest break requirements in a highly technical manner to require more than just the provision of a 10 minute rest break for every four hours worked (which is many employers’ understanding of the general rule).  The Court essentially held that employees are entitled to a rest break of at least 10 minutes for every four hours worked, or major fraction thereof (meaning more than 2 hours).  The exception is if the employees’ shift is not more than three and one-half hours, in which case no rest break need be provided.  This does not raise any big issue for the typical eight hour employee shift, where the employee is provided two ten minute rest breaks.  Where it gets complicated is a situation where an employee works, for example, six and one-half hours.  According to the Court’s interpretation of the rest break rules, the employee should be provided two 10 minute rest breaks in that situation because the employee is working one four hour shift and then a “major fraction” of another four hour shift.  In the words of the Court:  “Employees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”

In the specific case before the Court, Brinker had a rest break policy stating as follows:  “If I work over 3.5 hours during my shift, I understand that I am eligible for one ten minute rest break for each four hours that I work.”  The Court held that the plaintiff could establish this policy violated California law and denied a class of employees required rest breaks if “for example, Brinker under this uniform policy refused to authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight, hours.”

As for general timing of rest breaks, the Court held that the only requirement for timing of rest breaks is that they be authorized and permitted to be taken as close to the middle of a four hour work period as is practicable. The Court rejected a strict rule that a rest break occur before a meal break.

Based on the Court’s rulings on meal and rest break requirements, California employers will want to review their policies and practices to ensure compliance, with particular attention to ensuring rest break policy language comports with the Court’s interpretation of the requirements.

NLRB Poster MUS…

April 11, 2012

NLRB Poster MUST be up by the end of this month

This is a reminder that all employers covered by the National Labor Relations Act, which includes union and non-union employers, must post the 11″ x 17″ National Labor Relations Board’s Employee Rights Poster at their workplace on or before April 30, 2012.  If you have questions about the poster and the posting requirements, the NLRB has a wealth of information available on its website (including copies of the poster in multiple languages). There are still lawsuits pending trying to stop the implementation of the rules related to this poster, but the NLRB has stated that it is not going to further delay implementation.

Brinker Decision- (Regarding Breaks)

The California Supreme Court is expected to issue its long-awaited decision in Brinker v. Superior Court (Hohnbaum) by April 12, 2012.  This decision is expected to finally answer the much litigated question of what it means to “provide” a meal break under California law.
Must employers ensure that non-exempt employees take full 30 minute meal breaks, or must they merely provide employees the opportunity to take such breaks?  The Court’s decision will also address whether a meal break is required to be provided every five hours on a rolling basis.  These important issues have been the subject of numerous class action lawsuits against California employers and have left employers with uncertainty on how best to administer and enforce meal break requirements to avoid such litigation.

The decision will be posted next week.

Workplace Investigation Pitfall: Failure to Take Appropriate, Consistent, or Adequate Notes

The purpose of notes in an investigation is to summarize what occurred with each of the witnesses and to provide a general overview of how the investigation was conducted. Notes should obviously be orderly, clear and consistent. The basis of this issue is the concern that the notes may not adequately portray what really happened in the interview. This may occur for a variety of reasons. One of the biggest reasons is that the investigator fails to plan enough time in the investigatory process to review his/her notes after each interview and ensure that they actually reflect the course of the interview. As a result they are taken in a haphazard, rushed manner leaving the opportunity for omissions and inconsistencies. In order for the investigator’s notes to pass muster, they should be able to tell the order of interviews, how much time was spent with each interviewee, where the interview took place, what was addressed in the interview, who was present, and what evidence was shared.

Years later in a deposition, the investigator will be asked to explain the notes, as a record of what occurred in the investigation. The reasons for inconsistencies, which could have logically been explained when the interviews took place, are long forgotten and now subject to question.

If you need assistance with major investigations regarding sexual harassment or discrimination allegations please contact us especially if you feel the complaining party may potentially want to head to litigation.

Requiring Applicants & Employees To Surrender Their Facebook Passwords-New Legislation

April 2, 2012

In recent weeks, there has been uproar over employers and colleges seeking to require applicants to surrender their Facebook passwords as a condition of hiring/admission and how that practice may be analyzed by the courts under an invasion of privacy challenge. 

California employers should also be aware that the California legislature has proposed a bill that would specifically outlaw the practice.   AB 1844, proposed by Assemblywoman Nora Campos (D), if enacted as currently drafted:

(a)  would prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee; and

(b) would also provide that an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media, as defined, before hiring the employee.

The bill would add sections 980-982 to the California Labor Code to read as follows:

980.  As used in this chapter, “social media” means an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.

981.  For purposes of a claim of negligent hiring, an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media before hiring the employee.

982.  An employer shall not require an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.

This bill is a mixed bag, as currently drafted.  Proposed section 982 of the Labor Code would make it impossible for those California employers who wish to require applicants to surrender their Facebook and other social media passwords to engage in this conduct.  Certain employers would see this as an unfair restriction.  However, proposed section 981 of the Labor Code would protect California employers from negligent hiring lawsuits that are based on an employer’s failure to search or monitor an applicant’s social media profile and this would likely be seen as a positive piece of legislation by many California employers. 

AB 1844 was referred to the Assembly Committee on Labor and Employment on March 5.  I would not be surprised if this bill gained some traction as it may end up getting support from both employers and employees.  I will continue to keep you updated on this and other important California legislative developments.