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The Labor & Employment Report

Say What? NLRB ALJ Finds Hospital’s English-Only Rule Unlawful

Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, Unions, Workplace Trends

The latest office fodder for me and my colleague, Jason Usher (who formerly worked at the National Labor Relations Board (“Board”)), involves an Administrative Law Judge’s (“ALJ”) decision, Valley Health System LLC, that found that a healthcare employer’s English-only rule violated the National Labor Relations Act (“Act”).

Many employers, especially those in the healthcare industry, institute English-only rules for the workplace to ensure the safety and efficient operations of the facility. The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on the subject, permitting such rules provided that the rule is not overly broad and is justified by a “business necessity.” According to the EEOC, the following justify business necessity:

  • In communications with customers, co-workers, or supervisors who only speak English;
  • In emergencies or other situations in which workers must speak a common language to promote safety;
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Up until now, however, the Board has not weighed in on English-only policies. This issue was presented before a Board ALJ for the first time in the Valley Health System case. The hospital’s rule required all employees to speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.”  The employer’s rule was compliant with the EEOC’s guidance. Indeed, the rule allowed employees to speak their native language during their own time (before and after their work schedules and on breaks and lunch).

In her decision, however, the ALJ found that the rule violated employees’ rights under Section 7 of the Act to engage in protected “concerted activities,” which includes the ability to discuss and communicate about wages, hours, and other terms and conditions of employment. The ALJ determined that the policy was not sufficiently limited in time and location, and as such, found that employees, especially non-native English speaking employees would reasonably believe that they could not engage in concerted activity.

Understandably, the employer pointed to the EEOC’s guidance in its defense. The ALJ stated, however, that the EEOC guidance is not binding on the Board (WHAT?!!!  They’re both part of the same federal government!), and that the Board disfavors adopting precedent from other administrative agencies (?!!) unless the Board finds it is materially related to the goals and purposes of the Act. Instead, the ALJ based her ruling upon prior Board precedent that analyzed the lawfulness of a workplace rule by looking at whether it would reasonably tend to chill employees from exercising their Section 7 rights. The ALJ found that the English-only rule was vague with respect to time and location, because it required employees to speak only English while on duty and beyond patient care areas, and she also found that it would infringe on an employee’s ability to freely discuss and communicate about working conditions. The ALJ failed to see how patient care would be disrupted if employees were permitted to speak other languages in non-patient care areas and with other employees, staff, visitors, and customers, particularly if non-native English-speaking employees wish to talk about working conditions.

This decision may lead to consternation among employers, including those not in the healthcare field, as their current English-only rule, which may be lawful according to EEOC guidelines, may not be lawful under the Act. The good news though is that the ALJ decision is not binding legal precedent unless it has been adopted by the Board on review of exceptions. The hospitals involved will likely file exceptions, and we’ll have to wait to see what the (admittedly liberal Obama) Board will do.

Take Away:  While the ALJ’s decision is not the law of the land, an employer may wish to review its current English-only work rules to ensure that they are narrowly tailored with respect to time and location to prevent potential unfair labor practice charges and costly litigation.

Give Me a Coffee on the Clover, Hold the “Race Together” Please!!!

Posted in Employment Discrimination, Workplace Trends

I admit I am addicted to Starbucks coffee, particularly the concentrated brew that I can get for extra money on the Clover machine at my local joint. My husband insists I have a store locator chip in my brain (this before I had my i-Phone app with the actual – and BRILLIANT – store locator).IMG_1447

But, I am worried about my coffee joint. It is importuning me to discuss the issue of race in the U.S. with my barista. Indeed, as many news outlets have reported, I am not alone. We don’t want “race together” scrawled on our cardboard coffee cups (we non-ecological folks) or, as apparently my local Starbucks determined to be the middle-ground, written on a tiny whiteboard on the counter area in front of the barista “stage.”

Race matters, in many, many ways in the U.S., but here is why I fear for my beloved Starbucks when it decides to interject open discussion of this unresolved topic into my morning coffee.

  1. I am an employment lawyer. Let me refine that. I am an employment litigator. I defend employers when they are sued. This concept is beyond “diversity training gone wrong” where some “luminary” decides that the males in the office need to decide how it feels to be groped and ogled by the other sex (and so makes that one of the diversity training exercises, resulting in lawsuits). Asking your average barista to field discussions about race is above their pay grade and may lead to situations in which THEY feel harassed based on a protected characteristic/view (let’s just say divergent views on any number of topics – such as Ferguson and the propriety or lack thereof of the police conduct – do not neatly align with coffee house conversation).
  2. My parents schooled me that there are certain conversations that you save for people whom you know – politics and religion among them. I thought my parents were bourgeoisie when I was 21. I now understand at 54 how spot-on they were.  It is not low-brow to appreciate that certain debates are not appropriate in certain contexts (such as a commercial transaction when all I really want to do is wake up my mind, not debate the origins of oppression).
  3. I believe that conversations about important topics should be generated by thoughtful, deliberate dialogue.  I truly respect each and every person who provides me service. I was them 40 years ago. But I was not qualified to mediate discussions of race when I was a waitress and I think asking that of these folks is just not fair.

So, please, Starbucks, “stay in your lane.” You are fulfilling my need for superb coffee that gets me going each day. I have your app on my phone. I am happy whenever you are there in a faraway place that I travel to (although, candidly, not so much in Italy – you don’t cut it there).  But I worry for you when you try to extend yourself – and your unwitting staff – into discussions that are bound only to alienate your loyal clients and, even more troublingly, result in your staff filing claims that they were subjected to racially hostile working environments when they are subjected to “divergent views on race” that simply do not belong in the workplace. With that, I would like a tall Brazil in a Grande cup on the clover (and please, write nothing but “tall” on my cup). Thanks loads!

Managers Gone Wild on Social Media

Posted in HR Compliance, Social Media, Workplace Trends

People are increasingly turning to social media to vent their frustrations, and those frustrations frequently involve the workplace. The problem is that managers, who are deemed to speak and act for the company as a matter of law, can cause problems with a social media rant.

This issue is on my mind because it recently struck close to home. A friend had applied and was being considered for a department head position at a prestigious university – an excruciating process involving repeated trips to the university for multiple rounds of interviews. After many months, the choice was narrowed down to my friend and another candidate. My friend then received a call – FROM HER SISTER – saying, “You better take a look at this blog!” The blog post had been written by a member of the selection committee, who was upset that the committee majority had chosen the other candidate for the position! Yes, that’s right – my friend found out that she did not get the position from a blog post!

What’s the lesson here? Managers should be cautioned to be careful when sharing work-related information on social media. They can be told not to discuss confidential company information – certainly internal decision-making processes should be confidential. Moreover, disclosing disagreement about a company decision undermines that decision and can create dissension and morale issues within the ranks. At a minimum, managers certainly should  not be discussing a decision before it has been officially announced.

Of course, employees’ rights to complain about the terms and conditions of their employment are protected by the National Labor Relations Act – they can complain about management and corporate decisions, and even call managers vulgar names. But managers do not enjoy that same protection, and private employers can take action to prevent managers from sharing information that the employer deems inappropriate – and take action against the managers if they do. (Note that I am not talking about public employers, whose managers may be entitled to certain free speech rights under the 1st Amendment, and different rules may apply in states that have statutes protecting certain off duty legal activities, although for goodness’ sake, companies should still be able to tell managers to “keep it zipped” about hiring deliberations!).

Accommodating a Teacher’s Fear of Children?

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

I love these odd cases – like the one-armed man who wanted to be an “unarmed” security guard, about which I blogged previously. Here’s another one that tickled my funny bone – the teacher with pedophobia, which is a debilitating fear of children! (Let’s just absorb the irony of that for a moment, shall we?)

OK, to be fair, the teacher feared younger children, but was fine with teaching older children – which was the issue in the case of Waltherr-Willard v. Mariemont City Schools. The teacher, whose diagnosis of pedophobia had previously been confirmed for school officials by a doctor, taught all levels of French and introductory Spanish to high school students. The high school decided to move all of its French courses online, which meant that a French teacher was no longer needed. With the teacher’s (self-proclaimed “enthusiastic”) agreement, she was transferred to the middle school for the next school year.

After six months, the teacher asked to be transferred back to the high school, stating that her talents were being “underutilized” and that another year at the middle school would be detrimental to her health. (As the parent of two crazy teenagers, I agree that prolonged interaction with this age group can be very detrimental to anyone’s mental health!!) The school district superintendent told her that there were no openings at the high school because there was already a Spanish teacher there. The teacher retired, and then sued the school district for failing to accommodate her disability of pedophobia, among other things.

The district court granted summary judgment for the school district, finding that her claims were without merit. The U.S. Court of Appeals for the 6th Circuit agreed. With regard to the failure to accommodate claim, the Court noted that the Americans with Disabilities Act requires an employer to accommodate an employee’s disability, but it does not require “unreasonable accommodations.” Requiring the employer to create a new job or to displace a current incumbent in a job is not reasonable as a matter of law, which I am sure you will be happy to know!



A Seussian Recitation of Yates v. United States

Posted in Uncategorized

As we said yesterday, this case is outside our labor and employment law area of practice, but I was really so entertained by it that I couldn’t let it go just yet.  So, as inspired by Justice Elena Kagan and with apologies to Dr. Seuss:

The fish on the ship were just too small,

So the federal agent ordered they all

Be kept until the ship reached port.

But the captain threw them overboard.

This put the feds into a state –

“No evidence! We can’t investigate!”

They said, “This is a violation of SOX!”*

And they put the captain in a box

For thirty days. “Not fair!” he cried.

An appeal to the 11th Circuit he tried,

But his plea was rejected out of hand.

He took this to the top court in the land.

The Supreme Court tossed his conviction

By looking at a definition:

A fish is not a “tangible object”

That SOX was intended to protect –

Instead, it’s records and documents.

But the dissent cited as precedent

One Fish Two Fish Red Fish Blue Fish!

A fish not an object? Simply foolish.


*The Sarbanes-Oxley Act

OK, I’m finished.  Next time, we’ll be back to labor and employment matters – I promise!

The Fisherman and the Sarbanes-Oxley Act

Posted in Laws & Regulations, Litigation

Red GrouperThis case, Yates v. United States, is outside our usual employment law zip code, but it’s such a wacky one, it lured us in. It involves a fisherman who failed to preserve, as evidence, undersized fish that he had caught in violation of federal law. A federal agent found the undersized fish during an offshore inspection of a commercial fishing vessel in the Gulf of Mexico. The agent instructed the ship’s captain to keep the undersized fish separate from the rest of the catch until the ship returned to port.  After the agent left, however, the captain told his crew to pitch the fish overboard.

Casting a wide net, the government charged the captain with violating a provision of the Sarbanes-Oxley Act (SOX) dealing with the destruction of evidence. (Perhaps you remember that SOX was enacted by Congress following the Enron scandal, which made waves in the financial industry by involving massive accounting fraud and the destruction of documents). Under SOX , a person can be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. The captain was found guilty of destroying a “tangible object” – i.e. the fish.  He was found guilty and sentenced to 30 days. The U.S. Court of Appeals for the 11th Circuit affirmed the conviction, and the captain appealed to the U.S. Supreme Court.

The Supreme Court found that the charges against the captain were fishy. It held that SOX was meant to address destroyed records and information, not red grouper!  In the context of the statute, the destruction of evidence provision immediately follows corporate fraud and financial audit provisions. The term “tangible object” comes at the end of a list of terms that begins with “any record [or] document.” Given the context and placement, a “tangible object” under SOX “is one used to record or preserve information” and does not include the entire universe of objects. As Justice Alito (somewhat whimsically) noted in his concurring opinion,

[T]he term “tangible object” should refer to something similar to records or documents. A fish does not spring to mind – nor does an antelope, a colonial farmhouse, a hydrofoil, or an oil derrick. All are objects that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?

Now, the Supreme Court wasn’t united in this opinion. Justice Kagan wrote a dissenting opinion, which was joined by Justices Scalia, Kennedy and Thomas. She looked to the ordinary meaning of “tangible object” as “a discrete thing that possesses physical form.” She then went on (even more whimsically) to state:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Well, as for this case, I guess it’s the one that got away (from the feds).

Be Thoughtful About FMLA Certifications

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

Under the Family and Medical Leave Act (FMLA), an employer can (and should) require a certification from a health care provider to support an employee’s or the family member’s need for leave because of a serious health condition. This certification is the basis for determining whether the employee has a serious health condition requiring leave, which is then covered, and therefore protected, by the FMLA. It sets forth the parameters of what leave is medically required. Employers are, of course, entitled to rely on the certification – but not to the exclusion of all other information, as one employer learned to its great sorrow.

(Quick refresher – a “serious health condition” under the FMLA  includes incapacity of more than three consecutive days that also involves a visit to a health care provider and a supervised regimen of continuing treatment.  It also includes chronic conditions, which can be episodic, requiring at least two doctor’s visits a year for treatment. These episodes do not have to last for more than three days.)

In Smith v. AS America, Inc., a plant employee injured his back and was absent from work for three days. He submitted a request for FMLA leave, which included an FMLA certification form. The form  stated the employee had a back condition that would require treatment visits at least twice a year. The form further stated there could be episodic flare-ups of the condition every three months, lasting 3-5 days per episode, during which time the employee would not be able to work. The employee’s three-day absence was recorded as FMLA leave.

The following month, on February 5, the employee again strained his back. He reported to work on February 6, but had to leave because of his back pain. He called out on February 7 and 8, each time stating that his absence should be covered by his prior FMLA certification. The employee visited a health care provider on February 7, and the provider wrote a note stating that he had been seen on February 7 and excusing him from work on February 8. When the employee went to the plant on February 8 to submit his note, however, he was told that he was being terminated under the attendance policy for leaving early on February 6, and calling out on February 7 and 8. He was also given documents denying his January application for FMLA leave (even though the leave had already been recorded as FMLA!  What ?!!)  On February 11, although he had already been terminated, the employee submitted another FMLA request with a certification specifying that his back condition required continuing treatment, that it would cause episodic flare-ups, and that the current period of incapacity was February 7-9.

In the ensuing lawsuit, the employee contended that his February absence qualified as a serious health condition both because he had an incapacity lasting more than three days with treatment from a health care provider and because it was a chronic condition. With regard to the first argument, the employer argued that the certification stated that the incapacity lasted for only three days – February 7-9.  Therefore, it did not meet the relevant definition of a serious health condition, and the employer was entitled to deny FMLA coverage. The court, however, noted that the employer could not rely on the certification “to the exclusion of all other evidence it had at the time.” The court noted that the employer knew the employee had injured his back on February 5 and could not work on February 6. The employee, moreover, in calling out, had referenced his January FMLA application. Based on this information, the court found that the employer “should have reasonably concluded” that the period of incapacity lasted from February 5 at least through February 9 – more than 3 days.

Furthermore, the court noted, the form does not require the health care provider to provide exact dates for the incapacity – it seeks the “approximate date the condition commenced” and the “probable duration of the condition,” and further requests the provider to “estimate the beginning and ending dates for the period of incapacity.” In addition, the court noted that the employee was fired even before submitting the certification, although his similar request the prior month for FMLA leave for a back injury had been granted. The court thus found “disingenous” (at the very least!) the employer’s claim that it relied on the February certification to deny FMLA leave.

Moreover, the court noted that the employee was entitled to FMLA leave based on a chronic condition, as indicated in both FMLA certifications. The court rejected the employer’s argument that the condition cannot be considered chronic until it has lasted for a number of years. As the court logically noted, chronic conditions “undoubtedly have a starting point.” As long as the provider predicts that the condition will recur over an extended period of time, the condition could qualify as a FMLA-covered chronic condition.

So, bottom line, employers should be reasonable when they rely on those health care provider certifications, and take into account other information they may have. If there is some discrepancy between the information and the certification, because the certification is vague, ambiguous or unclear, the employer could deem the certification insufficient and request, in writing, that the employee submit a sufficient certification. Assuming that the certification is technically sufficient, but is hard to read or the meaning is unclear, the employer could seek clarification of the certification, as permitted by the FMLA regulations. Furthermore, if the employer doubts the validity of the certification based on the other information available to it, the employer can require a second (and possibly a third) opinion. What the employer should not do is simply reject the certification!

Can You E-mail FMLA Notices?

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

So I previously wrote about the problem with proving that an employee received a notice required by the Family and Medical Leave Act by regular mail, where there was no delivery confirmation. In a variation on that theme, a court recently held that proving an employee received an emailed FMLA notice could be equally problematic.

In Gardner v. Detroit Entertainment, LLC, the plaintiff had been approved for intermittent FMLA leave. However, the number of times that she called out on FMLA leave in the month of September (9x) exceeded the amount estimated by her doctor in the Certification of Medical Provider (4x). The employer and its third-party FMLA administrator also noticed that the plaintiff had called out every Sunday that month. (Definitely seems suspicious…)

Under the FMLA, recertification of an employee’s need for leave is permitted for several reasons, including where circumstances described in the previous certification have changed. The Department of Labor’s regulations implementing FMLA provide specific examples of such changed circumstances at 29 C.F.R. § 308(c)(2):

For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification… Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences might constitute a significant change in cirucmstances sufficient for an employer to request a recertification…

In this particular case, there was both a change in the frequency of the absences and a question about the timing of her absences. The FMLA administrator emailed a request for recertification to the employee. When the employee did not respond to the request for recertification, the absences that she subsequently incurred were deemed to be unprotected by FMLA. They were counted against her under the attendance policy, and she was fired for her attendance violations. She then sued her employer, arguing that she had specifically requested that FMLA correspondence be provided by postal mail, and that she never opened – and therefore never effectively received – the email. In other words, the employer did not provide her with proper notice of her need to recertify.

FMLA regulation 29 C.F.R. § 305(a) states that, after the initial request for certification, “an employer’s oral request to an employee to furnish any subsequent certifications is sufficient.” The employer argued that, given the sufficiency of an oral notice, an emailed notice should be more than adequate.

The court disagreed with the employer, however. It stated, “oral notice, a person-to-person communication, guarantees actual notice to the employee.” (Although, it’s entirely possible that an employee could deny the oral communication ever took place!) In contrast, no actual notice can be demonstrated by “the transmitting of an email, in the absence of any proof that the email had been opened and actually received…” So it will be up to a jury to decide if the plaintiff really received the email or not.

What should the employer do? Well, it seems that this decision, as well as the one I previously discussed suggest that all required FMLA notices and requests should be delivered by certified mail or with delivery confirmation. It may seem excessively cautious, but could save you in litigation!


A New Boss Is Not A Reasonable Accommodation

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

The bad boss is a cliché. There have been many movies about evil supervisors- for example, “Horrible Bosses” and (because one wasn’t enough) “Horrible Bosses 2.” There are TV shows featuring frustrating or bad bosses – like Michael Scott in “The Office,” or Mr. Burns from “The Simpsons.” There’s even a website where you can rate your boss and check out the ratings of others, so you can avoid them – eBossWatch.com.  (I didn’t check to see if I’m in there…)

Sadly, many of us have had personal experience with a boss who drives us crazy. So to speak. But what about the boss who literally drives an employee crazy? Is the employee now protected by the Americans with Disabilities Act? And what accommodation should be provided? A federal district court recently addressed these questions in the case of Alsup v. U.S. Bancorp.

According to the plaintiff, who had a history of mental health problems, her new boss treated her in “a negative and devaluing manner,” which caused her disability to resurface. She was subsequently diagnosed with Bipolar II depression. After the plaintiff received a write-up from her boss, she had to schedule an urgent appointment with her psychiatrist, who put her on a medical leave and recommended an accommodation of “a switch in supervisors.” A company HR representative emailed and spoke with the plaintiff on multiple occasions to request additional information about her boss’ conduct and what other accommodations might be possible to enable her to continue working for her boss. The plaintiff insisted the transfer to another supervisor was the only solution. The company refused and the plaintiff never returned to work. She then sued the company under California’s anti-discrimination law for disability discrimination and failure to accommodate her disability.

Under the ADA (which the courts look to in interpreting the disability provisions of California’s law), in order to bring a claim of disability discrimination, the plaintiff must show (among other things) that she can perform the essential functions of her job, with or without a reasonable accommodation.  In this case, the court found that,

“Because the plaintiff’s claimed disability stems from her inability to get along with her supervisor, and the only effect it had on her job was to render her unable to work with that supervisor, she has not and cannot allege she could perform the duties of her job with or without reasonable accommodations.”

The court also cited a number of other cases, all standing for the proposition that “an inability to get along with one’s supervisor does not give rise to a disability” protected by the ADA. The court concluded that the plaintiff failed to state a claim for disability discrimination.

As for the plaintiff’s failure to accommodate claim (assuming she had a disability covered by the ADA), the court, again citing numerous other cases, found that a transfer to another supervisor is an unreasonable accommodation as a matter of law. The court also pointed to the Equal Employment Opportunity Commission’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, in which the EEOC expressly states: “[a]n employer does not have to provide an employee with a new supervisor as a reasonable accommodation.”

Although the court ended there by throwing out the plaintiff’s claims, I want to point out that the EEOC’s Guidance does also say that, “although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation.Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.” So employers should not simply dismiss an employee’s request to transfer to another supervisor and consider the matter finished, particularly if the employee is claiming that the supervisor’s conduct is causing mental and physical health problems.  In any case, the wise employer will still look into the supervisor’s conduct to see if any adjustments should be made to the way the supervisor interacts with the employee (and possibly others). After all, while a bad manager may not necessarily be illegal, he or she can still cause you problems from an efficiency or morale standpoint.


Thoughts on Shielding Laws from a Management Attorney

Posted in Background Checks, Laws & Regulations, Legislative Developments, Workplace Trends

As one of the co-chairs for the Employment Issues Task Force of the Maryland Chamber of Commerce, I see the employment legislation that is proposed during each Maryland General Assembly session. Some of it makes sense (although, frankly, not often), and some of it makes me scream (literally – just ask my partners). For the past  couple of years, an issue that has come up and received serious consideration from our legislators is shielding – and this is one that falls into the latter category for me.

Shielding is part of the movement to enable those with criminal histories to move back into the workplace. One aspect of this movement, which is a hot topic right now at the state and local level, is ban-the-box laws. Those laws prevent an employer from asking about an applicant’s criminal history on an employment application (i.e. by checking the “box” indicating a criminal record) and through part or all of the hiring process. The most restrictive “ban-the-box” laws only permit an employer to review the criminal record of an applicant after making a conditional offer of employment, while less strict laws may permit it after or during the interview. But at least the employer can see the criminal record at some point.

This is in contrast to shielding laws, which protect certain (usually misdemeanor) convictions from being disclosed to an employer – ever. Unfortunately, the crimes being shielded are often the very types of crimes that may be directly relevant to an employer’s decision to hire or promote an individual.  The fact that they are misdemeanors, and not felonies, doesn’t make them any less relevant or concerning to employers – they are still a violation of the law for which the individual has been convicted.

Shielding legislation typically includes crimes of conduct, like disorderly conduct and disturbing the peace, as well as destruction of property, which could suggest a propensity to violence. Given all of the instances of workplace violence that saturate the media, I think most employers would agree that this is important information to know about an applicant. This type of legislation often also includes crimes of honesty, like theft. Again, wouldn’t this be of importance in hiring an employee that, for example, has access to corporate accounts or handles customer transactions? Driving offenses – certainly those are important if an employer is hiring for a position with driving responsibilities. And shouldn’t an employer who has instituted a drug-free workplace know if the applicant has drug offenses on his or her record? These are all crimes that would have been shielded under the shielding law that was proposed in last year’s Maryland General Assembly session, and generally what we expect to see in this year’s legislation (which has not yet been released).

I understand and fully support the effort to give those with criminal records a chance for employment. But not by pretending that those records don’t exist. That is not fair to employers, who should be allowed to make the decision about who they want to hire based on full and complete information. In addition, those employers could be held liable to others for misconduct by their employee, which is particularly concerning if the conduct is related to the type of crime for which the employee had been convicted – crimes about which the employer was not permitted to know.

The EEOC has already issued guidance on how criminal convictions should be used in employment decisions – and it is an individualized, case-by-case assessment that takes into account the following factors:

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

(We discussed the EEOC’s guidance more fully in a prior posting, “EEOC’s Updated Guidance on Arrests and Convictions.”) Applying these factors is logical and reasonable, and most importantly, fair to both individuals and employers.