"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Workplace Violence

"Workplace violence is now recognized as a specific category of violent crime. . . "  FBI, Workplace Violence, Issues in Response.

 

It is believed that 2 million American workers are victims of workplace violence each year.  2012 statistics reflect that nearly 1 out of 5 occupational fatalities is attributed to workplace violence.  In 2011, 780 fatalities (attributed to violence) occured with men making up the majority of fatal workplace injuries.   Media coverage has a tendancy to create an impression that workplace violence is more widespread than it is.  While incidents of workplace violence are serious, the rates of workplace violence have dropped sharply since the mid-90s.

 

Whether harassment or intimidation, the threat of physical violence or other threatening behavior, the prevention of workplace violence is a major concern for employers and employees.  Employers should train managers and supervisors to recognize the warning signs of potential workplace violence. 

 

Here's a couple of basic steps you can take:

1. Communicate, Communicate, Communicate.  Ensure that the employee has an outlet for frustration.  Allow the employee to vent.  If your organization offers an Employee Assistance Program, ensure employees are aware of it and can use it as needed.
2. Assess your business climate.  Be aware of what's going on in your workplace. Pay attention to unusual changes in employee behavior. Has there been any recent events which could increase the sensitivity of an employee?   (Devil's Advocate here.  A couple of questions.  Do you know the spouse's names of your employees?  How many children they have, their names?  Are they going through a divorce or other life trauma?  If you can't answer these questions, you don't know your employees.  If you don't know your employees, how can you tell if there is something wrong?)
3. Prevention.  Employees spend the majority of their lives in the workplace.  Disagreements are always going to happen, how you handle those disagreements is key.  Potential aggressors can be identified - just look for the warning signs. Warning signs can include strange behavior such as the employee becoming reclusive, erratic behavior, deteriorating appearance.  Other observable warning signs can be emotional problems and/or performance problems.

The 2012 documentary, Murder by Proxy: How America Went Postal, is framed around the USPS shootings that took place in the 80s and 90s. I found the documentary interesting as a provided the perspective of a postal carrier who survived a shooting in 1991 (Royal Oak, Michigan) and his ongoing efforts to urge lawmakers to pass legislation designed to curb workplace employee "abuse."  Not just a film about mass murders, the documentary addresses some of the underlying issues within the workforce that drove individuals to begin killing at random.   

 

In the closing minutes of the documentary, possibilities other than mass workplace shootings are considered.   James Alan Fox, Ph.D., Lipman Professor of Criminal Justice at Northeastern University, states; "Sabotage could be even more deadly and a greater risk to safety than bringing a gun to work." "It could be poisoning products, creating environmental contaminants. . . "  (September 1982 seven people in the Chicago area were killed by Tylenol capsules laced with potassium cyanide.  I don't believe this case was ever solved, so I can proffer the scenario that this could have been the work of a disgruntled employee. )

 

The bottom line? Workplace violence needs to be proactively dealt with.   We can't completely eliminate it, but we can mitigate risk for violence by educating and training our managers, supervisors and employees.

2013 Top EEOC Enforcement Topics

2013 is here and so are new challenges for employers!  Via HR Alert, below is a list of the top 5 EEOC enforcement topics for 2013. 

 

1. Strict leave policies and ADA.  To avoid EEOC attention, ensure that you are providing proper reasonable accommodations to disabled individuals.  Also under the EEOC microscope will be leave policies like no-fault attendance, fixed-leave and 100% healed (policies requiring an employee to be fully healthy before returning to work.)
2. LGBT Issues:  EEOC will be looking for signs of discrimination against lesbian, gay, bisexual and transgender individuals.  In April 2012 the EEOC issued a precedent-setting case, Macy v. Holder, that interpreted existing laws prohibiting discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity and sex stereotyping (believing a man must be masculine and a woman feminine, for example).   EEOC determined that transgender employees are covered under Title VII.
3. Leave Policies for Pregnant Workers.   Review your leave policies to ensure they don't open the door to discrimination against pregnant workers.
4. Litigation of national and regional class-action cases.  Employers can expect to see a continued emphasis on company wide investigations. 
5. Use of background checks in hiring process.  In April the EEOC released its guidance on the use of arrest and conviction records in employment decisions.  If you need a refresher, refer back to my June 6, 2012 blog for the enforcement guidelines.   As an employer you need to ensure you understand the differences between arrest and conviction records and how, in some instances, the use of an individuals criminal history in making an employment decision may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Happy Thursday everyone!

EEOC Enforcement Guidelines - Arrest and Convictions

During the application or hiring process many employers include criminal background checks on their applicants.   There has always been a bit of confusion and controversy over what information can or can’t be used in the decision making process.  On April 25^th the EEOC released their new Enforcement Guidance (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.).

Is there a legal risk for employers to misuse information obtained during a background check?  Yes.  January 11, 2012 the EEOC announced that Pepsi paid $3.1 million to settle an EEOC race-bias charge.  The EEOC found that the criminal background check policy used by Pepsi discriminated against more than 300 African American applicants under Title VII of the Civil Rights Act of 1964.  The policy precluded applicants from employment if they had an arrest pending prosecution, even if they had never been convicted of any offense.  (Statistics indicate that African Americans and Hispanics are arrested in numbers, and incarcerated at rates, disproportionate to their representation in the general population.)

The new EEOC Guidance discusses the difference between arrest and conviction records.   Per the EEOC:

1. The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.  However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. *Remember, the fact of an arrest does not establish that criminal conduct has occurred.  Many arrests do not result in criminal charges, or the charges are dismissed.  An individual is presumed innocent unless proven guilty.*
2. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct.  In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Previously (Felony Convictions and the Hiring Process, November 21, 2011) I touched on the three Green Factors* that an employer may take into consideration during the hiring process: 

• 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.

Bear in mind there are some industries in which employers are subject to federal statutory and/or regulatory requirements that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations.

In closing, I’m going to quote the EEOC; “When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.”

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

The link:  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

EEOC and Pepsi Beverages

EEOC Update:

In August of 2011 The Pepsi Bottling Group, Inc. agreed to pay $120,000 to settle a disability lawsuit filed by the EEOC. According to the lawsuit, Pepsi terminated Eldridge Davis, a driver at its Hayward, CA facility, for "job abandonment and violation of the company attendance policy." Sounded straightforward. Right? Wrong! Davis had followed proper procedure to inform his supervisor and the company that he could not finish his route due to his disability and he needed to take medical leave. Davis, who was 48 at the time, had been with Pepsi since October 1996. Well, Pepsi settled and agreed to implement preventative measures.

Fast forward to January 11, 2012.

Pepsi Beverages (formerly known as Pepsi Bottling Group) has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the EEOC.

The EEOC's investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy. Such policy disproportionately excluded black applicants from permanent employment. Under this new policy, job applicants who had been "arrested pending prosecution" were not hired for a permanent job even if they had never been convicted of any offense.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."