At Work: Solutions for Employers & Employees

When may an employer lawfully use information about an employee’s criminal history? May an employer refuse to hire any employee with a conviction in his or her past? The EEOC conducted an open meeting last week to discuss these questions. It is likely that the EEOC will issue more comprehensive guidelines addressing these issues in the future.

Policies that prevent the hiring of employees with a history of a criminal conviction raise questions because those policies have a disparate impact on African American employees, who are statistically more likely to have a criminal record. Many employers would prefer not to hire any employees with a criminal history – in fact, a recent survey showed that more than 40 % of employees said that they would not ever hire someone with a criminal record. Fear of a suit based on negligent hiring makes it reasonable for employers to be concerned about employees with criminal records. Is that discriminatory? And, if it does have a disparate impact on persons of color, is it allowed anyway? There is no absolutely clear answer in the statutes or case law, but there are hints and guidance

The Supreme Court and Congress have both weighed in on the standards to be applied to evaluate an employer’s policy or practice that is facially neutral but has a disparate impact on a protected class. One classic example of this sort of policy is a strength test – strength tests are more likely to exclude female employees and therefore have a disparate impact on the basis of gender. Many experts contend that looking to criminal convictions has a disparate impact on African Americans because a higher percentage of African Americans have a criminal record.

A policy is not invalid just because it has a disparate impact. In the classic U.S. Supreme Court case of Griggs v. Duke Power, the Supreme Court held that an employer can overcome a showing of disparate impact by demonstrating a “business necessity” for the practice. However, subsequent cases made clear that the criteria must be reasonably accurate for each applicant. A “more is better” approach is not allowed. Thus, in the example of strength tests, it is not enough to say that a stronger firefighter is always a better firefighter; there must be some showing that the cut-off is reasonably related to the job requirements.

There is no doubt that it is often a business necessity for an employer to ban employees with certain criminal records. Almost everyone would agree that a person with a history of sexual offenses against children should not be working in a school. But, what about a person with a thirty-year-old shoplifting record? Or, the person who tragically killed a passenger in his car because he drove while intoxicated? Should these people be barred from employment forever?

The questions become more difficult when the connection between the offense and the danger posed is tenuous, because of the nature of the job, the nature of the offense, or the time that has passed since the offense.

The EEOC’s Compliance Manual provides general guidelines on when a policy disqualifying a job applicant on the basis of a criminal conviction is permissible. The EEOC says that these policies are permitted only when the policy takes the following factors into account:

1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought.

There are only a few court decisions discussing these issues. In one case from the 8th circuit (Green v. Missouri Pacific RR), the employer refused to hire anyone with criminal offense other than a minor traffic violation. The court held that this policy did not meet the “business necessity” standard for two reasons: First, there was no consideration of how serious or how long ago the criminal conviction was. Thus, the policy would exclude a person who was convicted of a misdemeanor thirty years ago. Second, the job in question was in an office. There was no showing that the employees had any special access to valuable property or vulnerable people, which would require that the employer take extra care to keep former offenders out.

Last year, in El v. SEPTA, the Third Circuit (which covers New Jersey and Pennsylvania) addressed a policy which barred drivers of busses for severely disabled persons from having a conviction for a serious crime. In El, the employee had been convicted of second-degree murder as a juvenile 47 years ago, and had not had a problem with the law since. Although the court expressed reservations about the policy, it allowed the policy to stand, partly because of the vulnerability of the disabled persons with whom the plaintiff would be working. The court noted that its decision might have been different if the plaintiff had presented expert evidence to counter the expert testimony provided by SEPTA.

Although the law is quite unsettled in this area, an employer who wishes to consider prior convictions without running afoul of Title VII should tailor its limitations. For example, a hotel may reasonably be quite strict about the criminal convictions of employees such as chamber maids who have access to rooms, while the same strict limitations might not be a “business necessity” when it comes to employees who are doing landscaping work out of doors.

Posted by Tiffanie Benfer at 09:36 AM | Permalink | Comments (0) | TrackBacks (0)

A western Pennsylvania jury yesterday awarded a verdict of 1.8 million dollars to a woman whose employer fired her three weeks into her six-week maternity leave. Carole Smith’s baby spent the first two weeks of his life in neonatal intensive care; the week after she brought him home, she was fired by her employer Normandy Properties LLC.

After only two and a half hours of deliberation, the jury awarded her $600,000 in compensatory damages and 1.2 million in punitive damages. Additional damages, such as backpay and attorneys fees, are not presented to a jury and may be awarded by the judge.

Although Congress has not specifically outlawed “caregiver discrimination,” the EEOC issued guidelines last year about the treatment of workers who have caregiving responsibilities. Here's the link:

http://www.eeoc.gov/policy/docs/caregiving.html

The EEOC guidelines recognize that Title VII does not specifically prohibit discrimination against employees who are parents, or who have caregiving responsibilities. However, an employer cannot treat male and female employees who have such responsibilities differently. Thus, an employer may not refuse to give a woman with young children a job involving frequent travel, while allowing similarly situated men to have the opportunity to travel. Likewise, an employer who asks a female job candidate about her day care arrangements may violate Title VII, assuming that men are not asked similar questions.

Protection of caregivers is also implicit in other civil rights laws. The Americans with Disabilities Act forbids discrimination based on a relationship with or association with a disabled person. Therefore, an employer cannot treat an employee less favorably because the employee’s spouse or child is disabled and in need of extra care.

The EEOC has made clear that an employer cannot make decisions based on stereotypes – and one impermissible stereotype is that a mother of young children is not committed to the workplace.

A punitive damages verdict in excess of a million dollars is of course unusual. It is striking, however, that even in these difficult economic times, the jury was obviously not happy with an employer who took action against an employee because she had a sick infant. Employers need to be extremely careful in their treatment of employees with caregiving responsibilities.

Posted by Tiffanie Benfer at 01:15 PM | Permalink | Comments (0) | TrackBacks (0)

The Department of Labor yesterday published new regulations interpreting the FMLA (Family Medical Leave Act). Those regulations will become effective in 60 days.

The new regulations are voluminous, and we are still in the process of analyzing them. Here’s a link, for anyone who wants about 700 pages of light reading:

http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf

By way of background, the FMLA allows qualified employees (roughly speaking, employees who have been employed by the employer for at least 12 months) of covered employers (employers with at least 50 employees) to take a leave of up to 12 weeks in a 12 month period for specific reasons, such as the birth of a child, a serious health condition, or to care for an immediate family member with a serious health condition.

The new regulations are helpful to employees because they provide guidance on expanding FMLA coverage for military families. The DOL also declined requests from employer groups to limit the definition of “serious health condition.” However, the regulations also add some hurdles for employees who need to take FMLA leave.

Concerns for workers raised by the new regulations include the following:

• A higher burden on employees seeking intermittent leave to schedule their medical appointments at a time that will not unduly interfere with the employer’s business operations.

• The situations in which an employee may use accrued paid leave time rather than taking unpaid leave are limited. Employees wishing to use paid vacation time for their FMLA leave can do so only if the time is permitted under the company's time-off rules. This may pose difficulty for employees who cannot afford to take unpaid leave.

• Employers will have more direct access to medical information of a worker or family member whose serious health condition necessitates the leave. Employers (but not the employee's direct supervisor) will be allowed to call medical providers directly to verify that the claimed medical condition is authentic. In addition, employees who take leave because of a serious health condition will be required to see a doctor twice during the first 30 days of leave, and the first visit must be within 7 days.

• Employers will now have five days, rather than two days, to let an employee know whether the request for FMLA leave has been granted. This helps employers who felt that the two-day turn around time was too onerous, but may place a burden on employees who need to make quick decisions about medical care.

• Employees will now have to follow the employer's usual call-in rules for reporting the need for FMLA leave. (Before, employees could notify employers within two days after their first absence.) The regulations also set additional requirements of the types of information which employees must provide to employers to trigger an FMLA leave request.

These regulations will go into effect in mid-January. There is some speculation whether the Department of Labor under an Obama administration will roll back some of the provisions that are less favorable to employees. Chances are that the regulations will go into effect and stay in effect for some time before any changes are made.

Posted by Tiffanie Benfer at 10:27 AM | Permalink | Comments (0) | TrackBacks (0)

"Ted Daywalt, president of VetJobs.com, a site that helps military people find jobs, says he knows companies that simply refuse to hire them. 'I had one senior VP of HR tell me that if I had three candidates for a senior position in the company, and one of them mentioned they're in the Guard or Reserve, he would only have two candidates left. And I said, "You know, that's illegal." And, his response was, 'I can always find a reasonwhy not to hire somebody,' he says."
-- Excerpt from 60 Minutes report on USERRA violations, November 2, 2008

"As we express our gratitude, we must never forget that the highest appreciation is not to utter words but to live by them."
-- John F. Kennedy

USERRA Rights for Veterans and Obligations for Employers
By: Tiffanie C. Benfer, Esq.

Our country’s current military engagement abroad has resulted in involuntary duty for many employees. They leave behind civilian jobs and create voids in the employer’s workforce. In some cases the employer must fill this void in their absence. However, when the veteran employee returns from active duty s/he has the legal right to be re-employed even if the employer has no vacancies. In an effort to protect the men and women of the armed forces and to encourage participation in the armed forces, Congress enacted the Uniformed Services Employment and Re-employment Rights Act (USERRA) to provide the men and women of the armed services job protection. What does this mean for employers and returning vets?

USERRA states that an employer may not discriminate against a service member, but rather has an obligation to re-employ the service member. A re-employed service member is entitled to the seniority and other rights and benefits determined by seniority that the employee had on the date of the commencement of service, plus the additional seniority and rights and benefits that the employee would have attained if the employee had remained continuously employed.

Unlike the FMLA and Title VII, the Act applies to all employers and does not require an employer employ a minimum number or employees. The Act applies to all employers including, the Federal Government, State Government and private employers.

Prohibited Employment Discrimination
•Denied initial employment
• Denied re-employment
• Denied retention in employment
• Denied promotion
• Denied any benefit of employment

What Constitutes Service
The uniformed services include the U.S. Army, Navy, Marine Corps, Air Force and Coast Guard, and the commissioned corps of the U.S. Public Health Service. The protection set forth in USERRA applies to voluntary as well as involuntary military training or service and a period of service ranges from five hours to five years of full-time active duty.

Veteran’s Responsibility
In order for a veteran to preserve his/her re-employment rights, a returning veteran must fulfill five conditions:

• Left his/her job in order to perform voluntary or involuntary service in the uniformed services;
• Provide employer advance written or verbal notice;
• The cumulative length of the absence (including all previous absences from a position of employment with the employer) for reason of service in the uniformed services does not exceed five years;
• Discharged from the period of service without having receiving punitive or dishonorable discharge;
• Timely reports back to work or applies for re-employment.

A veteran, whose period of uniform service was less than 31 days must report to the employer not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration

A veteran that has completed a period of service for more than 30 days but less than 181 day shall submit an application for reemployment with the employer not later than 14 days after release from a period of service.

A veteran, whose period of service was for more than 180 days shall submit an application for re-employment with the employer not later than 90 days after the release from a period of service.

Veterans Job Entitlement

Should the veteran meet the five conditions, the employer has a legal obligation to re-employ the veteran despite the fact there are no current vacancies.

A veteran whose period of service is for less than 91 days shall be promptly reinstated in the position to which the individual would have been employed had employment not been interrupted by such service. The employer shall make reasonable efforts to qualify the individual to perform the duties of this position. If this is not possible, however, the individual shall be placed in the position he/she was employed in at the commencement of service.

With a veteran whose period of service is more than 90 days the employer has some more flexibility. The employer shall be promptly reinstated in the position to which the individual would have been employed had employment not been interrupted by such service. In the alternative the employer may place the veteran in a position of like seniority, status and pay. Once again the employer shall make reasonable efforts to qualify the individual to perform the duties of these positions. If this is not possible, however, the individual shall be placed in the position he/she was employed in at the commencement of service, or a position of like seniority, status and pay, the duties of which the individual is qualified to perform.
Disabled Veterans

An employer must make reasonable efforts to accommodate a veteran that sustained a disability in, or aggravated during his/her period of service. However, if the individual is still not qualified to perform the responsibilities of the position to which the individual would have been employed had employment not been interrupted by such service, the veteran shall be employed in any other position which is equivalent in seniority, status, and pay, which duties the veteran is qualified to perform or would become qualified to perform with reasonable efforts by the employer. Alternatively, the individual shall be placed in a position which is the nearest approximation in terms of seniority, status, and pay.
Liability

An employer that fails to comply with these regulations shall be subject to liability. Should the employer be found to liable, a court may award relief as follows:
• Require the employer to comply with the law;
• Compensate the employee for any loss of wages and benefits suffered;
• Pay the employee liquidated damages in an amount equal to the lost wages and benefits, if it is determined that employer willfully failed to comply with the USERRA provisions.

Conclusion
If you are an employer you should familiarize yourself with the rights set forth above in order to minimize the risk of violating USERRA. The regulations will possibly create significant challenges and may require legal advice to determine what steps must be taken to comply with the regulations. Even if you have not encountered this issue yet, given the current situation abroad it is only a matter time before you will find yourself faced with employment concern so be proactive.

Posted by Tiffanie Benfer at 05:18 PM | Permalink | Comments (0) | TrackBacks (0)

Today is Veterans Day, a day which seems to slide by with too little notice, unless you happen to notice that the post office is closed. I just returned last night from England, where this weekend marked their “Remembrance Day.” It seemed that everyone there – schoolchildren, waitresses, newscasters, and the queen – was wearing a commemorative red poppy, and the news channels spent hours on Sunday covering the ceremonies. Maybe we can learn something from this British pomp and circumstance, especially if it helps us to better focus on the needs of those returning from war.

As I passed through customs on my way home, I struck up a conversation with a young man who was returning from Iraq – he was coming home a month earlier than expected, with a bandaged arm and a big grin, ready to surprise his wife and three children at their door. I hope that his country gives him a welcome as warm as the one I'm sure he got from his family last night.

In honor of this young man, and all of our veterans of wars past and present, our next blog entry will be on employer’s obligations when it comes to employment of returning veterans.

Posted by Tiffanie Benfer at 10:12 AM | Permalink | Comments (0) | TrackBacks (0)

What does pregnancy do to your chances of success at work? If you are Amy Poehler, it seems not to hurt a bit. One week before giving birth she had us howling while she performed her Sarah Palin rap on Saturday Night Live. Check it out if you haven’t seen it yet.

http://www.nbc.com/Saturday_Night_Live/video/clips/update-palin-rap/773781/

OK, Amy Poehler is a super-talented, hilarious woman who apparently has an unending stock of energy. For the rest of us mere mortals, it doesn’t always go so smoothly. I’m not just talking about morning sickness and aching backs.

A study released last week indicates that discrimination against pregnant workers persists thirty years after the passage of the Pregnancy Discrimination Act. The PDA makes it unlawful to discriminate against an employee (or job applicant) on the basis of pregnancy. The law is clear, but putting it into practice has not gone so smoothly.

The National Partnership for Women and Families study, released on October 29, 2008, analyzed data of claims of pregnancy discrimination from 1996 through 2005, and found a steady increase in claims during that period. Here’s a link:

http://www.nationalpartnership.org/site/PageServer?pagename=newsroom_pr_PressRelease_081029

The National Partnership found that overall claims of pregnancy discrimination had risen more than 25%, and that the rise was particularly sharp for women of color. New Jersey was cited as one state with a particularly sharp rise, over 50%. The rise in claims was much greater than the increase of women in the workforce, so it could not be explained merely by a larger number of pregnant workers.

Interestingly, women working in fields traditionally dominated by female workers are not insulated from discrimination. In fact, last January, a Philadelphia-based retailer specializing in maternity clothing paid $375,000 to settle a claim brought by the EEOC after accusations that it discriminated against pregnant workers! Here’s that link:

http://www.eeoc.gov/press/1-8-07.html

Does the data found by the National Partnership show that there is actually more discrimination than there was 25 years ago, or does it show greater awareness of anti-discrimination laws by employees, who are now more willing to bring claims? It is hard to say for sure. At the least, it seems to show that bias persists even so many years after the passage of the Pregnancy Discrimination Act.

Numerous studies have shown that pregnant workers are perceived as less committed to their jobs than non-pregnant workers. In one particularly interesting study, women wore a “pregnancy prosthesis” during job interviews and while shopping. The study concluded that the pregnant job applicants were subjected to hostility, while the pregnant shoppers were given extra positive attention. Here’s a link for that study:

http://cat.inist.fr/?aModele=afficheN&cpsidt=19281502

This study seems to show what many of us sense intuitively. The problem isn’t so much malevolence toward pregnant women in the abstract (the way there might be toward some racial or religious minorities). The problem comes with the intersection of motherhood and work. Thus, bias against someone who is pregnant is often couched in “benevolent” terms. The National Partnership study cited the likelihood that male co-workers will believe that a pregnant woman ought to prioritize family over career.

There is also the reality that employers fear that a pregnant employee will cost money. Employers worry about coverage during maternity leave, or that the pregnant worker will not have the energy or ability to keep working at full force. In a tight economy, those worries are more likely to express themselves in discrimination against the pregnant worker. Understandable? Maybe. Legal? Absolutely not.

Bias against pregnant workers may seem more socially acceptable than stereotyping on racial or religious grounds, but it is still illegal. The Pregnancy Discrimination Act forbids taking a job action on stereotyped perceptions about the commitment or skills of a pregnant worker.

Posted by Tiffanie Benfer at 07:39 AM | Permalink | Comments (0) | TrackBacks (0)

"Work is about a search for daily meaning as well as daily bread, for recognition as well as cash, for astonishment rather than topor; in short, for a sort of life rather than a Monday through Friday sort of dying."
-- Studs Turkel, 1912 - 2008

I’ve just heard that Studs Turkel passed away last night. What a loss!!

Maybe this isn’t exactly an employment law topic, but I think I can tie it in…. Studs Turkel wrote one of my favorite books, "Working." I read it back in college (long before I thought about being an employment lawyer), and it has stuck with me ever since. Studs Turkel’s talent was to talk to everyday people and find what was interesting in their lives. In "Working," he interviewed people of all professions, chambermaids and bankers, bus drivers, and maybe even a lawyer. (I don’t actually remember that one). I once heard Studs Turkel interviewed on NPR. He was asked whether he had to interview hundreds of people to come up with one of the interesting stories he told in "Working." He responded, “No, everyone has a story.”

Actually, I think that is why I love being an employment lawyer. Everyone does have a story. Each employee has a story, and each business does too. Employment law is very personal, and gives me a chance to hear the stories of others. Maybe I won’t ever write those stories quite like Studs Turkel, but this work does give me a chance to appreciate the stories and to incorporate them into the briefs I write.

Now, if you haven’t read it yet, go to the library and check out "Working." Some of the professions profiled might be a little dated. (The elevator operator in a department store comes to mind.) But the essential humanness of the stories is timeless.

Studs Turkel, your memory will live on.

Posted by Tiffanie Benfer at 08:16 PM | Permalink | Comments (0) | TrackBacks (0)