Thursday, March 23, 2017

Checking In on Background Checks

Background checks are a valuable (and often essential) part of the hiring process.  They help employers find good employees and avoid risky hires. Failure to check applicants’ backgrounds can amount to negligence and may create legal liability for employers, particularly when the prospective employee will, if hired, have contact with vulnerable individuals, use dangerous equipment, or have access to sensitive information.

As important as background checks can be, there are significant legal risks created by doing them unlawfully.  Federal and state statutes prescribe what information can be collected, how it can be collected, and whether collected information can be considered in the hiring process.  This joint publication of the Federal Trade Commission and the EEOC provides an excellent overview of federal law.

As employers develop or implement hiring policies and procedures that include background checks, they should keep the following in mind:
  • FCRA and its state equivalents.  The Fair Credit Reporting Act, which we’ve written about before, applies to employers that use outside agencies or third parties to do background checks.  It requires notice to an applicant or employee that a background check will be performed, obtaining consent for the check, and additional notice if negative information obtained in the background check results in a negative action such as refusal to hire or employee discipline. When a background check is performed on a current employee, rather than an applicant, and relates to an investigation of employee misconduct, the FACTA amendment to FCRA gives employers more discretion.  Employers can engage a third party to investigate workplace misconduct without providing advance notice to the employee or being required to obtain prior consent.  State and local laws may also constrain employer background checks.
  • FCRA litigation.  Individual and class action lawsuits against employers based on claimed FCRA violations continue, and can result in new interpretations of the law.  The Ninth Circuit recently held that a FCRA rights notice to employees cannot be combined with other notices or agreements. A Florida federal court has allowed a consolidated FCRA action against Amazon to move forward, finding that the plaintiffs have standing to sue based on their allegations of invasion of privacy, information harm, and risk of harm.  UPS has been sued because it allegedly uses background checks to make employment decisions without providing the results to applicants or employees.
  • Criminal background check limitations.  The EEOC has long advised against careless use of arrest and conviction records in employment decisions.  In the last decade, a number of states and municipalities have enacted “ban-the-box” legislation limiting the circumstances in which employers can inquire about or consider arrest and conviction records.  This SHRM article, published in 2016, describes the ban-the-box movement, and a current list provided by NELP identifies states with ban-the-box laws.
  • Social media use in background checks.  As we have noted in previous posts, background screening done through social media is subject to the constraints of FCRA and anti-discrimination laws.  EEOC commentary makes clear that the agency is alert to, and concerned about, the potential for discrimination that arises when social media access results in consideration of protected class status.  Employers using vendors to screen applicants should remember that they may be held legally liable for screening methods or results that violate the law, regardless of whether or not they knew of the violations.
  • References.  Although low-tech, references obtained directly from former employers can be a valuable screening tool.  In seeking references, a prospective employer should ask only job-related questions, ask the same questions about all applicants, and decline or discourage information about protected class status, health or medical background, criminal background, or other non-job-related information.
Posted by Judy Langevin

Monday, March 20, 2017

That is SO last week

Last week, Quartz reported on a new academic study about gender-based differential treatment in the finance industry.  According  to the study, women working as financial advisors are 50% more likely than men to lose their jobs as a result of misconduct, even though men in comparable positions are three times more likely than women to be involved in misconduct. There is also gender-based pay disparity in the finance industry, and there have been numerous complaints and reports of sexual harassment.
  • The Department of Justice has reached an agreement with two California janitorial companies to resolve claims that the companies violated the Immigration and Nationality Act by discriminating against immigrant workers who were authorized to work in the U.S.
  • The US Women's Hockey team has threatened to sit out the upcoming International Ice Hockey Federation World Championship “unless meaningful progress is made” in negotiations with USA Hockey over equal pay and treatment.
  • Uber is expanding its talent diversity and inclusion team following recent accusations of sexism and sexual harassment at the company.
  • The EEOC has launched a new online inquiry and appointment system in five of its offices. The system will allow individuals to electronically submit initial inquiries and requests for intake interviews.
  • CIO explained how GE is recruiting tech executives from places like Apple, Google, and Microsoft with Silicon Valley-style compensation packages and the promise of helping GE become a leading software company by 2020.
  • The Atlantic took a close look at why Silicon Valley is so difficult for women and highlighted several apps that have been developed to help circumvent unconscious bias.
  • Automation has eliminated only one US occupation in the last 60 years, according to a close examination of census data undertaken by an economist.
  • Fast Company explained how leading tech companies like Apple, Google, Dell, and Netflix get more done by 10 a.m. on Thursday morning than other companies do in a week.
  • HR Dive covered a new climate-control app and sensor technology that would allow workers to adjust their own lighting, heating, and cooling preferences.
In Other News
  • The Labor Department has stopped publicly posting the names of employers that violate OSHA.
  • Defenders of the Oxford comma had reason to celebrate a Maine court’s ruling on overtime pay for dairy-truck drivers.
  • Inc. profiled an 80-person company whose employees all work 100% remotely and which offers a “de-location” package to new employees.
  • HR Morning covered a recent case in which a court held that an employer that violates the FMLA will have to pay double damages—the jury verdict as well as an additional, equal amount in liquidated damages.

Thursday, March 16, 2017

Who Needs to Know?

Personnel issues generate great stories.  The work that HR professionals, in-house counsel, and employment lawyers do is full of human drama and often very interesting.  It’s natural for people to want to know what’s behind personnel actions, and it’s natural for those who are in the know to be tempted to tell.  In organizations that value transparency and promote information-sharing, keeping confidences can almost seem like anti-social behavior. Nevertheless, there are compelling reasons to keep personnel matters confidential.

Sometimes, of course, sharing personnel information is not a choice.  A court or governmental entity may demand that information be produced.   An internal investigation may require that personal and performance information be revealed to and considered by individuals who do not routinely have access to it.  Employees themselves may have a statutory right to review Information in personnel records.  In those situations, information sharing is compelled, and the limits and mechanics of providing such information are usually well established.  In many other situations, however, it is left to the discretion and good judgment of managers, HR professionals, and in-house counsel to determine whether those seeking personnel information have a legitimate need to know, and if so, how information will be provided.

Consider, for example, the employer that enters into a separation agreement with a former employee.  The agreement provides that both the departing employee and the employer will keep the terms of the agreement and the facts and circumstances leading to the separation confidential, but with exceptions.  The employee is allowed to share information with legal counsel, immediate family, tax advisors, and medical providers.  The employer is allowed to share information with individuals within the organization “with a legitimate business reason to know.”  The task of deciding who has a legitimate need to know the details of the separation falls to managers, HR professionals, and in-house counsel.  Whether specified in a legal agreement, stated in an employer’s policy, or dictated by law or best practice, a “needs to know” standard can be difficult to implement.  Here are some tips to keep in mind:
  • Wanting to know and needing to know are different.  As noted above, the stories behind personnel actions can be fascinating, and sometimes a request for information is driven by simple curiosity.  It’s always appropriate to ask the reason for the information request.
  • Being a supervisor or manager isn’t always enough.  Supervisors and managers need information that directly affects their ability to carry out their responsibilities.  They may not need to know health and medical information, information about family circumstances, or the details of why someone was fired.  If the supervisor or manager can be effective in his or her job without the information being requested, it’s best to err on the side of confidentiality.
  • There may be alternatives to sharing sensitive information. Sometimes, personnel information can be kept confidential with a little extra effort.  Perhaps a report needs to be redacted or rewritten, or perhaps HR can take on extra responsibility for processing sensitive information so that it won’t need to be shared.  There may be alternative methods of accomplishing tasks without revealing personnel information unnecessarily.  Alternatives that protect sensitive personnel information are usually worth the effort and always worth considering.
  • There may be a binding agreement or legal authority to consider.  Sometimes, as in the example above, an employer has entered into a legally enforceable agreement to keep certain information confidential.  Some personnel information is protected by law.  Employment agreements may include provisions related to the handling of an employee’s personnel records and information.  Before deciding whether or not to share information, it’s essential to find out what, if any legal constraints exist.
  • Training and reminders are worthwhile. Those who have access to personnel information, or who decide who will have access to it, should be carefully trained and regularly updated on relevant law and policy.  Those who gain access in specific situations, however, will not have the benefit of that training and may not understand the need to keep the information confidential.  They should be advised - clearly and forcefully - of the need to protect the information and the consequences of failing to do so.

    Posted by Judy Langevin

Monday, March 13, 2017

That is SO last week

Last week, Magnolia Health, a California company that operates health care and assisted living facilities, agreed to pay $325,000 and furnish other relief to settle a disability discrimination class action lawsuit.  In the suit, the EEOC alleged that the company denied employees accommodations for disabilities and refused to hire, or fired, individuals who had disabilities.  Among other claims, the EEOC alleged that Magnolia rescinded employment offers when applicants’ post-offer medical examinations revealed current medical restrictions or a record of disability.  In addition to paying the $325,000 settlement amount, Magnolia agreed to retain a consultant to revise the company’s policies and procedures relating to disability discrimination and to provide training.
  • The Eleventh Circuit Court of Appeals held that Title VII does not prohibit employers from discriminating on the basis of sexual orientation.
  • An experiment in which a male and female employee switched their email signatures exposed the effects of gender bias in the workplace.
  • Legislation in Iceland will require companies to prove they pay their employees equally regardless of gender.
  • A Connecticut federal jury awarded $5.5 million to a former Wal-Mart employee who claimed he was fired after he complained of race discrimination.
  • Mashable critiqued the culture problems in Silicon Valley.
  • Quartz offered an “optimist’s guide to the robot apocalypse.”
  • Technology-related jobs dominated Glass door’s 2017 list of the 25 best-paying jobs in the United States.
  • SHRM reminded HR professionals that they need to educate employees about employer expectations for social media use off the clock.
In Other News
  • The healthcare bill currently under consideration in the U.S. House of Representatives would allow employers to impose penalties on employees who decline to share their genetic information as part of an employer-sponsored wellness program.
  • An author in Quartz argued that multi-lingual speakers make the most valuable employees because of the way their brains function.
  • A Massachusetts company will pay $1.2 million in restitution  to more than 550 workers after a DOL and Massachusetts AG investigation found the business was not paying its workers overtime and earned sick time and was violating child labor laws.
  • Former Fox News anchor Gretchen Carlson spoke against mandatory arbitration clauses in employment contracts at a press conference convened by U.S. Senator Al Franken.
  • The first round of March Madness has been estimated to cost employers $4 billion in lost productivity, but SHRM suggested HR take a laissez-faire approach to office pools.
  • Fast Company offered advice on preparing for an immigration raid on your workplace.

Thursday, March 9, 2017

In Search of the Reasonable Person

Allegations of sexual harassment continue to attract media attention and commentary, including ours.  As we review developments, we note that a wide variety of workplace behaviors are being challenged and scrutinized.  Legally actionable sexual harassment takes many forms, from the classic quid pro quo claims included in the Sterling Jewelers case, to the innuendo claimed in Gretchen Carlson’s suit against Roger Ailes and Fox News, to inappropriate greeting cards.  Last week we learned that hugging, if it is unwelcome and pervasive, can create a hostile work environment, and that a University president can be forced to resign by allegations of inappropriate “abrazos,” or embraces.

Sexual harassment in the workplace is conduct or communication of a sexual nature that is unwelcome or uninvited, and that has the purpose or effect of substantially interfering with the victim’s working environment or creates an intimidating, hostile, or offensive working environment.  For decades now, the courts have been deciding sexual harassment cases by asking how a reasonable person would assess the behavior complained of.  Would a reasonable person conclude that the conduct or communication is of a sexual nature?  That it’s unwelcome or uninvited? That it’s sufficiently severe and pervasive to create a hostile environment? Sexual harassment must be both objectionable to the victim and objectionable to a reasonable person to be legally actionable. 

As managers, HR professionals, in-house counsel and employment lawyers deal with complaints and allegations of sexual harassment, the reasonable person should always be their guide.  That’s sometimes easier said than accomplished, however, so we’ve developed some tips:

Don’t assume that you are a reasonable person. Most of us consider ourselves pretty reasonable, and it’s tempting to assume that if something is (or isn’t) offensive to us, our reaction is an adequate assessment tool.  We are, however, all different. We are different ages, with different backgrounds and values and different levels of sensitivity.  What offends or threatens us depends on multiple factors.  It’s important to recognize the limits of our own perspective, and to seek the perspective of others as we decide whether conduct fits the definition of sexual harassment.

The reasonable person considers all the facts and circumstances surrounding the alleged harassment.  Unwanted hugs from a peer may be very different from unwanted hugs from the president of the company.  A hug at a social gathering, in front of lots of people, may be different from a hug in a dark, deserted hallway.  The EEOC and the courts tell us to consider the context of the alleged harassment, including its frequency and severity and the relative positions of harasser and victim.

Think about a “reasonable victim.”  The Supreme Court has said that it is reasonable to assess alleged harassment using “[c]ommon sense, and an appropriate sensitivity to social context . . . to distinguish between” innocuous behavior and “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” (Emphasis added.) The identity, position, background and circumstances of the victim can and should be considered.

Consider the “reasonable woman.” Although the concept has not been widely adopted or tested, some courts have said that it is appropriate to apply a “reasonable woman” standard in assessing conduct directed toward a female victim.  The Ninth Circuit and Third Circuit have done so, recognizing the difference between male and female perspectives on sexual harassment. In 1993, in Ellison v. Brady, the Ninth Circuit explained that the traditional “reasonable person” standard tends to be male-biased and systemically ignores the experiences of women. These are the only circuits to expressly apply a reasonable woman standard, but in both it continues to be recognized.

Remember your obligation to both the alleged victim and the alleged harasser.  The reasonable person begins his or her assessment of harassing conduct without bias.  Neither the person complaining of harassment or the person being accused should be believed or disbelieved as an initial matter.  While the credibility of victim or harasser may be crucially important, or even decisive, it must be determined carefully and can’t be based on shared history, gossip, or unsubstantiated feelings.

There are few bright lines and fewer perfect formulas available to those charged with investigating, assessing, and responding to complaints of sexual harassment.  Given that, it’s comforting to remember that reasonableness is also the standard by which an employer’s response to harassment will be judged.  Employers must take all reasonable steps  to prevent harassment, and must respond in an “immediate and appropriate” fashion when harassment occurs or complaints of harassment are made.

Monday, March 6, 2017

That is SO last week

Last week, sexual harassment and sex discrimination received significant media attention. The Washington Post revealed statements made by 250 current and former employees of Sterling Jewelers, parent company to Kay Jewelers and Jared the Galleria of Jewelry, in a private class action arbitration accusing the company of rampant sexual harassment and wage discrimination.  A class of 69,000 current and former female employees has been certified in the action, which began in 2008.  Silicon Beat, the tech blog of The Mercury News, reported that another female former Uber engineer spoke out last Friday about her experience of sexual harassment and sexism at that company. And The Guardian reported on the story of a female engineer at Tesla who is accusing the company of pervasive harassment and sex discrimination in a suit filed last year.
A Maryland commercial real estate services company agreed to pay $100,000 and furnish additional relief to resolve a federal disability discrimination lawsuit. The EEOC charged that an employee was fired when, after returning from FMLA leave for breast cancer treatment, she requested part time work as an accommodation.
Inc. covered a recent case in which the Ninth Circuit Court of Appeals held that unwelcome hugging in the workplace can create a hostile work environment.
California’s Equal Restroom Access Act (ERAA) took effect on March 1, requiring that some single-occupancy restrooms have signs indicating they are gender neutral.
A Seattle-based fishing company agreed to pay $1.85 million to resolve a racial harassment suit brought by a Hispanic former employee who alleged that he and other Hispanic crew members were subjected to racial slurs and treated differently than white crew members.
Lawrence Summers argued in The Washington Post that, rather than picking on robots, America should focus on educating and retraining workers, investing in infrastructure, and embracing technological advancement.
Back Channel took a close look at the concept and impact of “diversity debt” in the tech industry.
Quartz explained how rising minimum wage laws may be driving fast food companies to automation.
A Boeing employee caused a cybersecurity breach affecting 36,000 workers in 4 states when he sent a spreadsheet containing confidential employee information to his spouse in order to get help with spreadsheet formatting.
The Guardian named the ten most  influential wearable devices, starting with the abacus ring from the 17th century Qing Dynasty of China.
In Other News
The US Citizenship and Immigration Services announced that it will temporarily suspend expedited processing for H-1B visas, a move which is likely to have a significant impact on tech, consulting, and outsourcing industries.
Parents from around the world shared their experiences of parental leave on Buzzfeed.
The U.S. House of Representatives voted to block an Obama administration OSHA rule that would have significantly extended the penalty period for record-keeping violations.
SHRM examined the privacy rights of employees in light of news that White House Press Secretary Sean Spicer conducts random checks of the mobile devices of White House staffers.
The New York Times found that American workers are opting to work longer.

Thursday, March 2, 2017

Termination Due Diligence

The decision to terminate an employee is often difficult. Whether driven by economic necessity or based only on performance, it usually involves (and often requires) an analysis of the employee’s job history. When performance concerns exist over a long period of time, it’s natural for decision makers to see a proposed termination through that lens. When economic concerns exist, it’s natural for cost-cutting to become the primary consideration, and for careful selection of the affected employee to become a secondary focus. It’s important not to let either history or the pressure to eliminate a position quickly stand in the way of due diligence, carried out in real time.
We find that our clients make better decisions about who and when to terminate when they consider the following:
  • Is performance information current and complete? Employers shouldn’t rely on outdated evaluations or unsupported beliefs. Performance reviews should be current and consistent with the anticipated basis for termination. Warnings and performance improvement plans, if any, should also be consistent with reviews and should support the anticipated basis for termination.   
  • Are information sources reliable? A discredited supervisor should not be the only source of performance evaluations. Rumor and gossip should not form the basis of a termination decision. The information relied on in making a decision to terminate should be current and reasonably objective. 
  • Is documentation available? Whether the business reason for the proposed termination is economic or performance based, it’s important for the decision to be supported by written records that will be available if the termination is challenged. 
  • Are policies being followed? Regardless of financial pressures or severe performance concerns, an employer’s own termination policies, if any, should be followed.   
  • Have current applicable laws been considered? Employment laws and regulations change frequently. Employers should not assume that a termination analysis done in the past is sufficient.   
  • Have the employee’s circumstances changed? Is the employee now in a protected class that did not apply earlier in his or her employment history? Has the employee made a complaint, raised an issue, or been a part of a workplace investigation, which could make termination seem retaliatory or give rise to a whistleblower claim? 
  • Has the impact of the termination on others in the workplace been considered? Employee terminations, however justified, often have effects on other workers. The morale of remaining workers and the redistribution of work both deserve attention in advance of the termination. 
It makes no sense to retain an employee you can’t afford or an employee whose performance is inadequate, but it can also be expensive to hire and train new employees. Employers should be careful to consider the  business costs of replacing an employee and the economic benefits of employee retention. When a termination is necessary, real-time due diligence and analysis based on current, complete, reliable information is the best protection against legal challenges and legal liability.

Posted by Judy Langevin