The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers

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.

I don’t actually have the answer to that. But someone else will soon – BMW Manufacturing Co., who is being sued by the EEOC regarding BMW’s use of criminal background checks.

As we’ve discussed in prior posts, the EEOC is being exceedingly (and sometimes unreasonably) aggressive in challenging employer’s criminal background check policies, claiming that such policies violate Title VII’s prohibition of discrimination on the basis of race because they have an illegal disparate impact on black applicants, who are more likely to have a criminal background. As we noted in “EEOC Slapdown Over Meritless Criminal Background Check Lawsuit,” a federal judge awarded 3/4 of a million dollars in attorneys’ fees and costs against the EEOC for pursuing a lawsuit against a company for refusing to hire felons, even after learning that the company did, in fact, hire felons. And in EEOC’s Attempt to Prohibit Use of Background Checks Rejected, we noted that the EEOC unsuccessfully went after an employer who, in fact, was utilizing criminal background checks appropriately in accordance with the EEOC’s own Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

In the BMW case, the EEOC claims that BMW’s criminal check policy is not job related or consistent with business necessity. In defending against this claim, BMW has asked the EEOC to produce its own criminal background check policy for those who apply for jobs with the EEOC. The EEOC refused to produce the policy, arguing that it wasn’t relevant to whether BMW’s policy was legal. It stated that the positions for which it used its own policy were not similar to the positions in question at BMW. But the court noted that the EEOC did not identify the positions for which it conducts background checks, and that BMW “is not required to accept [the EEOC]’s position… that the two practices are dissimilar” without being able to make that determination itself. So the court ordered the EEOC to produce its own criminal background check policy.

I love the fact that the agency that is going after employers for their criminal background check policies is now being required to turn over its own policy. And wouldn’t it be interesting to see what it says and whether it meets the EEOC’s own Guidance? Turnabout is fair play, after all.

My teenagers thought that the new Maryland law decriminalizing possession of small amounts of marijuana meant that smoking pot was now legal.  I’m sure many people have that misconception.  Sadly for them, and for my kids, that is not correct.

This legislation, which takes effect on October 1, 2014, decriminalizes the possession of less than 10 grams of marijuana, and instead makes it a civil offense.  Let me clarify: it’s still illegal.  So instead of criminal prosecution and jail time, offenders will be cited for a violation.  Like a speeding ticket (I know we all speed, or most of us do, and we’re all breaking the law when we do).  The offenders could pay the fine or request a trial.  If the offender is under 21 or if it’s a third offense, the offender must go to trial.  At trial, if found guilty, the offender would have to pay a fine.  And if the offender is under 21 or it’s a third offense, the court will refer them for substance abuse education, assessment for a substance abuse disorder, and, if necessary, treatment.   But, again like a speeding ticket, this is not considered a criminal conviction.  The fines escalate with subsequent violations – the first violation is up to $100, the second is up to $250, and three or more is up to $500.

So for employers, the law does not affect their ability to enforce drug-free and drug-testing policies in the workplace.  Employees do not have any legal right to smoke pot under this law, even on their own time.  Employers can still prohibit employees from using pot and test them for marijuana use, and employers can fire them if their pot use violates the company’s drug-free or drug-testing policies.  What will be a little more challenging for employers is the fact that violations will no longer show up on criminal background checks – so those employers who apply a strict policy of not hiring those with drug convictions will no longer be able to access that information.  But they can still rely on pre-employment drug testing to determine whether someone is a current user.

I follow proposed employment legislation in Maryland during our legislative session, which runs from January to April each year. More and more, the bills that are proposed use California statutes as models, which is troubling. Employers in our State certainly do not want Maryland to become the “California of the East!” More troubling still, in Baltimore City (which genuinely needs to attract more business) there currently is a piece of legislation pending before the City Council that would prevent employers from asking about an applicant’s criminal history until a conditional job offer is made, and thus is much more radical than typical “ban-the box” legislation enacted in a few states.

Some states prohibit “the box” (i.e. a question about criminal history) on an employment application but do permit criminal history questions to be asked of an applicant in a job interview.  The stated rationale for this type of law is that it gives convicted criminals, who otherwise might be automatically disqualified from employment by an affirmative answer to the criminal history question, to get their foot in the door and potentially “wow” the employer during an interview.  (While I understand the rationale, I actually don’t see the need for this type of law –  the EEOC has repeatedly and aggressively stated that automatic disqualification policies are discriminatory against minorities.  In my experience, most employers don’t consider an affirmative answer to automatically disqualify an applicant.  They do take the circumstances of the conviction into account – what kind of conviction, how long ago it was, etc.)    

The proposed ordinance, however, takes this even further – unreasonably so.  It would permit employers to obtain criminal background information only after a job offer is made (except for jobs where criminal background checks are required by law).   This means that an employer would go through an entire recruitment process only to find out, after choosing a candidate, that the individual has an employment-disqualifying criminal record.  That simply makes no sense.  What a waste of time and recruiting resources! 

In addition, the proposed ordinance prohibits employers from taking any action against an applicant or employee based on arrest.  Sometimes employers want to put an employee on leave while certain charges are pending.  This would affect an employer’s ability to do so. 

This proposed ordinance is really troubling for employers.  If you’re a Baltimore City employer, you may want to let your Council member know about your concerns!

 

Most (I hope) employers understand that they have to comply with the notice and authorization requirements of the Fair Credit Reporting Act (FCRA) when using a third party to conduct background checks of current and prospective employees.  What many employers don’t realize is that there are certain FCRA obligations that may apply with regard to former employees, as illustrated in Maiteki v. Marten Transportation, Ltd. et al.

Three former employers of a truck driver reported false negative information about the driver’s accident record to a consumer reporting agency.  Because of the negative reports, the driver couldn’t get another job.  When the driver discovered the wrong information on his record, he contacted his former employers and asked them to correct it.  Each of them told him that that they would investigate and remove the false reports.  Sadly for him (and now for them), none of them did so.  After continuing to be rejected from employment, the driver repeated his requests to his former employers.  Again, they failed to do anything.  He also contacted the consumer reporting agency, which followed up with one former employer.  No corrections by the former employers were ever made.  The frustrated driver then sued each of his former employers under FCRA.

Unfortunately for the driver, the federal district court found that FCRA doesn’t provide a cause of action against former employers for providing false or inaccurate information to a consumer reporting agency.  (Really?  Huh.)  But the court did find that if an employer is informed by a consumer reporting agency that there is a dispute about the accuracy or truthfulness of information that they have provided to the agency, FCRA imposes an obligation on employers to “conduct an investigation with respect to the disputed information.”  The court also held that former employees can bring a claim against employers who fail to conduct a reasonable investigation.

The lesson for employers here is that they should be careful to provide accurate and truthful information about former employees to a consumer reporting agency.  (This information may include driving records, licensing, salary, termination information, etc.)  In addition, if an employer receives a complaint that the information provided is not correct, it is important for that employer to investigate the complaint and make any necessary corrections promptly.

I like the EEOC – I really do.  They do important work, and most of the time they seem to get it right.  But every once in a while they dig in their heels over something patently ridiculous, leaving employers and management attorneys like me tearing out our hair in frustration.  So there’s no small measure of satisfaction when the EEOC gets benchslapped by a court for engaging in an unreasonable lawsuit, as just happened in EEOC v. Peoplemark, Inc.

As I mentioned in a recent blogpost, EEOC’s Attempt to Prohibit Use of Background Checks Rejected, the EEOC is being rather aggressive in its pursuit of employers using criminal background checks in the hiring of employees.  Although the EEOC’s own Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions contemplates the reasonable use of criminal records, the EEOC has been pursuing criminal background check claims against employers that just don’t make sense.

In the Peoplemark case, the EEOC brought suit against a temporary staffing company because a company VP told the EEOC that the company had a policy of denying jobs to those with felony records.  It turned out that the VP was mistaken (and what a mistake that was!), but the EEOC pursued the case even after it was clear that no such policy existed and that the company did, in fact, refer felons for jobs.  After the case was finally dismissed, the trial court scolded the EEOC for bringing a lawsuit that lacked merit from the beginning and forcing the company to incur significant defense fees and costs.  Deeming the EEOC to be unreasonable in continuing to litigate even after it was clear that there was no basis for its claims, the court ordered the EEOC to pay the company $219,000 in attorneys’ fees and $526,000 in expert fees, plus costs.  This award was upheld on appeal to the U.S. Court of Appeals for the 6th Circuit.

Frequently employers are forced to spend excessive sums of money to defend against frivolous claims.  Rarely do courts award fees and costs to employers who successfully defend themselves against such claims, and realistically, individual plaintiffs could rarely afford to pay them in any case.  So it really warms my heart on those extraordinary occasions when justice is served!  Three cheers!

The EEOC has been facing some controversy with regard to its April 2012 guidance on the use of criminal background checks, in which it discussed the appropriate use of criminal background information for employment purposes, which we discussed in a prior blog entry, “EEOC’s Updated Guidance on Arrests and Convictions.”  It would help if the EEOC were consistent in its position.

As we previously discussed in “EEOC’s Own Use of Criminal Background Checks,” the EEOC sued an employer for using criminal background checks in EEOC v. Freeman.  The employer in that case did not use a criminal record as an automatic bar to employment.  Rather, it tailored the use of criminal checks to the particular job positions in question; certain job positions did not require a criminal check, while others did.  As to the latter, only certain types of convictions were considered disqualifying.  Nonetheless, and shockingly inconsistent with its own guidance, the EEOC claimed that the use of criminal checks at all had an illegal disparate impact on minorities.

Fortunately, the U.S. District Court for the District of Maryland, in a strongly worded opinion issued on August 9, 2013, rejected the EEOC’s position as overly broad, and found the employer’s tailored approach to be legitimate and appropriate.  In a further slap to the EEOC, the Court noted that the EEOC itself uses criminal background checks in hiring.

The EEOC is suing Freeman, an events marketing company, challenging the legitimacy of the company’s use of criminal background checks in hiring.  Although the company’s screening process applies to all applicants, the EEOC claims the criminal checks have a discriminatory impact on Hispanic, Black and male applicants.  Freeman defends them as job related and consistent with business necessity.

Now, the EEOC will have to explain why applicants for jobs at the EEOC have to undergo background checks that – you guessed it – look at criminal history.  Magistrate Judge Charles B. Day of the U.S. District Court for the District of Maryland refused to grant the EEOC’s motion for a protective order that would have prevented the defendant from deposing an EEOC designee on this and other EEOC practices.  In the decision, Judge Day wrote,

“Plaintiff [EEOC] claims that Plaintiff’s use of credit and criminal histories is not relevant because a business necessity defense ‘is employer and job-specific,’ and Defendant is the employer in question … However, if Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.”

Deposition transcripts are not published except when used in support of a motion.  If, as we anticipate, Freeman files a motion for summary judgment, we will let you know what the EEOC had to say about the government’s use of criminal histories in hiring.

Last week, the EEOC issued an “updated” Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII .  The guidance takes the place of the Commission’s 1987 and 1990 policy statements, and was precipitated by a 2007 federal court decision that criticized the EEOC’s past guidance.

While the Commission uses the same general standards that have been in place for evaluating whether a conviction should be a bar to employment, it interprets those  standards in a way which makes it more difficult for employers to defend against any adverse employment action based on a employee’s criminal conviction.  As reported by The Daily Record, the take away message for employers is this:

Employers beware: Your prohibition on hiring job applicants with arrest or conviction records could land you in trouble with the U.S. Equal Employment Opportunity Commission.

Consistent with its past position, the EEOC emphasizes that employers must consider (1) the nature of the crime, (2) the time elapsed, and (3) the nature of the job.  The new guidance, however, suggests that employers should conduct an “individualized assessment” with regard to each applicant to determine if the policy as applied is job related and consistent with business necessity.  In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

 “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.”

This individualized assessment will no doubt cause headaches for employers.  Indeed, the Commission suggests that employers must review multiple factors for each applicant, including:

  •  The facts or circumstances surrounding the offense or conduct.
  •  The number of offenses for which the individual was convicted.
  •  Older age at the time of conviction, or release from prison.
  •  Evidence that the individual performed the same type of work, post-cnviction, with the same or a different employer, with no known incidents of criminal conduct.
  • The length and consistency of employment history before and after the offense or conduct.
  • Rehabilitation efforts (e.g., education/training).
  • Employment or character references and any other information regarding fitness for the particular position.
  • Whether the individual is bonded under a federal, state, or local bonding program.

Clearly, this could become an onerous process for employers, especially those employers with large applicant pools.  Moreover, applicants and employees may be unwilling to share such information with prospective employers.  Notably, however, the guidance does state that if the individual does not respond to the employer’s attempt to gather additional information about his background, the employer is free to make a decision without such information.

The bottom line is that the Commission’s claim that the updated rules do not reflect a substantive change in its enforcement policy or the guidelines it expects the courts to apply is disingenuous.   The standards the Commission has published will, if deferred to by the courts, make it more difficult for employers to sustain the rejection of an applicant because of a conviction record.