Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The EEOC’s focus on the protection of LGBT employees follows its April 2012 decision in Macy v. Holder, Appeal No. 0120120821 (April 20, 2012), about which we previously blogged, in which the EEOC determined that Title VII affords protection to these employees. The EEOC also takes the position that discrimination based on sex includes discrimination based on a failure "to conform to socially-constructed gender expectations."

Director Gigante cited the rise in pregnancy-related charges filed by older women and discussed the interplay between the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act in pregnancy-related discrimination claims. The EEOC is particularly interested in cases alleging failure to accommodate pregnant employees.

The panel also discussed disability discrimination and failure to accommodate claims, with a particular focus on no-fault attendance and fixed leave policies, both of which have been the subject of litigation by the EEOC. Employers should carefully review their attendance and leave policies to ensure that they do not run afoul of the anti-discrimination laws. Director Gigante emphasized that employers should determine the individual needs of the disabled employee in order to identify reasonable accommodation. While it is important to initiate the accommodation process to ensure compliance, Director Gigante noted that the employer need not accept the specific accommodation requested by the employee and that undue hardship to the employer remains a valid consideration.

With respect to recruitment and hiring, Director Gigante reiterated the EEOC’s continuing concern with facially-neutral pre-employment tests and requirements that have a disparate impact on employees belonging to a protected class. Moreover, employers can expect close scrutiny if they elect to use background checks and criminal history reports to screen applicants. It is critical that employers be familiar with the EEOC’s April 2012 guidance on the use of criminal background checks, including the need to perform individualized assessments, and with any state or local laws that may impose further limitations. In addition, the EEOC’s Plan specifies that it will specifically target a number of additional discriminatory recruitment and hiring practices, including exclusionary practices and policies, channeling/steering individuals into jobs due to their status in a particular group, and restrictive application processes.

For information on how employers can protect their businesses and comply with the law, or for an audit of workplace policies and practices, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department. Daniel A. Schleifstein, an Associate in the Gibbons Employment & Labor Law Department, co-authored this post.

Using “A Summary of Your Rights Under the Fair Credit Reporting Act”

An employer must provide an employee/potential employee with the form “A Summary of Your Rights Under the Fair Credit Reporting Act” before taking any adverse action based on a consumer report regarding an applicant/employee. This report may be obtained following separate written notice to, and written permission from, the applicant/employee. Further, the form also must be provided to an applicant/employee before an employer obtains an “investigative consumer report” on an applicant/employee. An investigative report is more detailed, and somewhat more intrusive, than an consumer report because it seeks information concerning a consumer’s character, general reputation, personal characteristics or mode of living, and is obtained through personal interviews with that consumer’s neighbors, friends, associates or acquaintances.

For answers regarding matters involving compliance with the FCRA’s regulation of employment background checks, please feel free to contact any attorney in the Gibbons Employment & Labor Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

Employers must obtain a signed acknowledgment from employees within 30 days of the employee’s receipt. It is the first of its kind for NJ employers to require employees to sign an acknowledgment of having received the notice. The notice must be posted and distributed in English and Spanish and in any other language the State has made the poster available -- if the employer reasonably believes the alternative language is the first language of a significant portion of its workforce.

Some Questions Remain

Employers may receive more guidance from the New Jersey Department of Labor and Workforce Development once it issues the form “notice” to be posted and distributed. The New Jersey Wage and Hour Law (WHL) provides for penalties for non-compliance. It is not clear whether a violation of this new law will trigger the standard penalties under the WHL. Also, it is not clear whether an employer’s failure to provide the notice could be used as evidence in litigation in support of a claim for higher damages.

Guidance for Employers

The notice and distribution requirement applies to employers with 50 or more employees. However, the New Jersey Law Against Discrimination, which prohibits gender-based discrimination in compensation and benefits in the workplace, applies to all employers. Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, which similarly prohibit gender discrimination, have other thresholds. For example, Title VII applies to employers with 15 or more full or part-time employees. Although employers who are covered by these statutes may be exempt from the new posting requirement, employers still must comply with the federal and state anti-discrimination obligations.

Pay discrimination has become a hot issue. A recent, major initiative of both the Equal Employment Opportunity Commission and the equivalent state agencies has been to address compensation inequality based on gender. Employers should take the time in light of this new notice obligation to audit their compensation practices and systems (with counsel) to identify any disparities and/or prepare to defend against them if challenged through documentation and/or reasonable explanations.

Criminal Background Inquiries for Newark Employers

Effective November 18, 2012 based on a newly enacted Ordinance, employers of 5 or more employees who employ persons -- or take applications for employment -- in the City of Newark are generally prohibited from (1) conducting pre-application criminal background checks and inquiries and (2) denying employment based on the results of a criminal background check conducted post-offer unless the employer first conducted an individualized analysis of the criminal background using factors listed in the new Ordinance. An employer may discuss an applicant’s criminal background pre-offer if the applicant discloses his/her criminal history voluntarily and without solicitation. There exist some exemptions from the Ordinance, such as mandatory state and federal regulations requiring an employer to consider a criminal history for hiring decisions.

Requirements to Conduct Criminal Background Checks

An employer may not inquire about an applicant’s criminal background pre-offer unless it has made a “good faith determination that the relevant position is of such sensitivity that a criminal history inquiry is warranted.” If an employer conducts a criminal background check on an applicant post-application after a conditional offer has been made, the employer must provide the applicant prior notice and obtain an authorization to conduct the check (similar to an employer’s requirement under the state and federal Fair Credit Reporting Act). The notice also must inform the applicant that he/she will be afforded the opportunity to present evidence regarding the accuracy and relevance of the background check results.

Permissible Consideration by Employer

An employer may inquire about (1) convictions for up to 8 years from sentencing; (2) disorderly persons convictions or municipal ordinance violations for up to 5 years from sentencing; and (3) pending criminal charges (including cases continued without a finding prior to a dismissal). Certain exceptions exist for violent crimes.

Prohibited Actions

Employers may not inquire about, require a candidate to disclose or take any adverse action based on: (1) an arrest or criminal accusation not currently pending; (2) records which have been erased, expunged or subject to an executive pardon; and (3) a juvenile adjudication of delinquency or records which have been sealed.

Required Analysis to Use Criminal History for Hiring Decisions

An employer must consider the following factors when basing a hiring decision on a criminal background:

• The nature of the crime and relationship to the duties of the position;
• Information pertaining to the degree of rehabilitation and good conduct;
• Whether the job provides the applicant the opportunity to commit a similar offense;
• The length of time that elapsed since the offense; and
• A certificate of rehabilitation issued by a state or federal agency.

The employer is required to document its analysis of these factors using an “Applicant Criminal Record Consideration” form.

Notification to Applicant and Opportunity to Review Decision

If an employer makes a hiring decision based on an applicant’s criminal record history, it must notify the applicant of the rejection, provide the applicant a copy of the criminal record inquiry and a copy of the Applicant Criminal Record Consideration form. The employer also must state the reason for the adverse decision and include consideration of the factors listed above. Finally, the employer must advise the applicant of the opportunity to review the decision and the manner for the applicant to present evidence relevant to the employer’s consideration. The applicant has 10 days from receipt of the notification to respond. If an applicant timely responds, the employer must consider the applicant’s evidence prior to making a final decision. The employer must document the evidence received from the applicant as well as its final decision and notify the applicant of the final decision in a reasonable amount of time following receipt of the applicant’s evidence.

It remains to be seen how the new law will be enforced. For now, the Mayor of Newark is authorized to create an office of agency to implement and enforce the Ordinance. Penalties will range between $500 to $1000 per violation. However, the Ordinance does not address whether there exists a private right of action to enforce it.

These obligations will require employers to re-visit their background check procedures and hiring guidelines with regard to criminal backgrounds. It will take time to see how the Ordinance impacts the local economy of Newark.

For assistance with matters involving employee notices and criminal background checks, please contact an attorney in the Gibbons Employment & Labor Law Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

The proposed law authorizes enforcement through private civil suits. The bill also provides for the imposition of civil penalties in an amount not to exceed $2,000 for the first violation, and $5,000 for each subsequent violation, collectible by the Commissioner of Labor of Workforce Development.

Over the past 5 years, seven other states – California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington – have passed similar legislation.

Social Network Information

Bill A278, was recently approved by the Consumer Affairs Committee of the New Jersey Assembly and would prohibit employers from asking a current or prospective employee if he or she has an account or profile on a social networking website (e.g., Facebook, LinkedIn, Twitter). Moreover, the bill would ban employers from requesting that an applicant or current employee disclose his or her username and password for such access. The protections granted under the bill cannot be waived. Private civil suits to enforce the proposed law are permitted if filed within one year from the date of the alleged violation. The Court may, as it deems appropriate, order or award the following: (1) injunctive relief (including reinstatement); (2) compensatory and consequential damages; and (3) reasonable attorneys’ fees and court costs. Not surprisingly, the bill prohibits retaliation or discrimination against any employees who refuses to disclose his or her username or password or who files a complaint. Moreover, an employer who violates any provision shall be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and $2,500 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.

The Consumer Affairs Committee also approved a similar bill, A279, which bars higher education institutions from asking applicants or students for the disclosure of social networking website information.

Employer Takeaway

In light of these recent developments, New Jersey employers should review their current handbooks, policies, employment applications and practices and consider whether changes will be necessary if these bills are signed into law. We will, of course, keep our readers up to date on future developments as we monitor the progress of the proposed legislation. If you have any questions, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

Peter J. Dugan is an Associate in the Gibbons Employment & Labor Law Department.

According to the new guidance, “[t]o establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” The EEOC suggests that an employer can consistently meet this test by (a) validating the screen using the Uniform Guidelines on Employee Selection Procedures or (b) developing a targeted screen that takes into account the Green factors and then offers an opportunity for an individualized assessment. The individualized assessment gives the applicant/employee notice of the results and then an opportunity to offer additional information demonstrating why the exclusion should not apply.

According to the EEOC, the employer must have some basis for drawing a connection between the crime and its importance to the job, such as "fact-based evidence, legal requirements, and/or relevant and available studies." By way of example, a policy that excludes an applicant convicted of theft or dishonesty for a position in which the applicant would have access to personal financial information or money where the conviction occurred in the four years prior to the application may be an appropriate targeted exclusion if the employer can explain, with reference to some fact or study, why the policy was adopted. The examples the EEOC gives include national criminal data and recidivism research.

Also of note in the guidance:

• Title VII does not preempt federal laws that prohibit employment of individuals with specific convictions in certain industries or positions in the public and private sector.
• State and local laws are preempted by Title VII if they result in an unlawful employment practice. This means that following a state or local law is not a defense - the employer must still show job relatedness and business necessity.

The EEOC offers a number of “Employer Best Practices,” including the elimination of policies that exclude individuals because of any criminal record, the development of narrow policies and practices that closely correlate the essential job requirements with the specific offense, documented justification for the policy procedure, and training of managers.

For a related article on the new EEOC Guidance, including commentary by Gibbons Employment & Labor Law Director, Susan L. Nardone, click here. To discuss any of your company’s employment or e-discovery needs, contact any attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department.