When state law conflicts with the EEOC on criminal background checks, who wins?

Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.

Per the EEOC:

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance.

That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions’ age.

Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.

It is early in the litigation of the Waldon case. The court denied the employer’s motion to dismiss.

First, it concluded that it was clear that the Plaintiffs pleaded a prima facie case of disparate impact.

Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others.

The existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be “a close call,” it ultimately concluded that it could not make that call on a motion to dismiss:

Obviously the policy as applied to serious recent crimes addressed a level of risk the Defendant was justified in managing due to the nature of its employees’ proximity to children. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton’s offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant’s policy constituted a business necessity.

Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn’t the need to follow state law provide the employer’s “business necessity?” If not, employers will be faced in the untenable position of following one law and violating the other.

photo credit: kevin dooley via photopin cc

This post originally appeared on The Legal Workplace Blog.

Email surveillance as evidence of retaliation

Employees should not operate under any false ideas that they enjoy an expectation of privacy in their work email accounts. Just because an employer has the right to snoop through an employee’s email, however, does not mean the practice does not carry some degree of risk.

Consider, for example, Fields v. Fairfield County Board of Developmental Disabilities (6th Cir. 12/6/12). Fields claimed that her employer retaliated against her after it discovered an email she sent to some co-workers threatening a lawsuit against the Board. The court concluded that the email surveillance was insufficient evidence of pretext.

Simple enough? What if, however, the claim was that the company only started watching her email after it learned of the protected activity, and used evidence of misconduct in the email to support the termination decision. Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

If you are going to enforce a policy or exercise some employer right (like surveillance of corporate email or computer systems), do it consistently, not selectively and only after an employee complains about discrimination. Otherwise, you could change a legal and reasonable act (e.g., email surveillance) into evidence of unlawful retaliation.

Social media is the digital water cooler

Let’s say your business is located in a less-than-desirable neighborhood. Three of your employees engage in the following conversation on their personal Facebook pages:

Holli Thomas — needs a new job. I’m physically and mentally sickened.

Vanessa Morris — It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!! …

Vanessa Morris — And no one’s doing anything about it! Big surprise!

Brittany [Johnson] — “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris — hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!

Can you fire these three employees? If you answered yes, you just bought yourself an unfair labor practice charge with the National Labor Relations Board, at least according to Bettie Page Clothing (4/19/13) [pdf]. Per the NLRB:

The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity.

Social media is today’s water cooler. Employees still might gather around the lunch table or coffee machine to gossip about work, but they are also just as likely, if not more likely, to carry over those conversations outside of the workplace through their personal social media accounts. If you wouldn’t fire an employee for a water-cooler conversation you happen to overhear, then don’t fire them for a similar conversation on a Facebook wall. In fact, you are much worse off with the social-media-based termination because the employee has a digital paper trail with which to hang you.

Employees gossip with and gripe to each other. Instead of firing these employees, maybe you need to look inward to figure out if their concerns are legitimate, and if there is something you can do about it.

[Hat tip: Employer Law Report]

Fired for suing an ex-employer? Court rejects public policy claim

Carcorp hired Barry Elam to work in its finance department. A few months into his employment with Carcorp, Elam sued his prior employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in retaliation for his cooperating with an investigation by the Ohio Attorney General into fraudulent credit applications. A year later, Carcorp fired Elam.

Elam then sued Carcorp, claiming that it wrongfully fired him in retaliation for his lawsuit against his prior employer, in violation of Ohio’s public policy.

In Elam v. Carcorp, Inc. (4/23/13), the appellate court affirmed the trial court’s dismissal of Elam’s wrongful discharge claim.

For the uninitiated, some background on wrongful discharge in violation of public policy claims under Ohio law. These claims act as an exception to the presumption of at-will employment permitting a claim when an employee is discharged or disciplined for reasons that contravene a clear public policy. To establish a claim that an employer wrongfully discharged an employee in violation of public policy, the employee must demonstrate all of the following:

1. A clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.
2. Dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy.
3. Conduct related to the public policy motivated the plaintiff’s dismissal.
4. The employer lacked overriding legitimate business justification for the dismissal.

After an extensive analysis of Elam’s claimed public policy—the Open Courts provision in the Ohio Constitution—the appellate court rejected Elam’s public policy claim, on the basis that “Elam did not articulate any clear public policy that his termination from employment violated.”

In the final analysis, Elam did not demonstrate the Open Courts provision represents a clear expression of legislative policy barring an employer from discharging an employee as a result of the employee’s lawsuit against a third party. To hold otherwise would expand the public policy inherent in the Open Courts provision beyond the provision's clear meaning and infringe upon the legislature's duty to make and articulate public policy determinations.

While academically interesting, this case raises a more interesting practical consideration. These “public policy” retaliation cases often hinge on the creativity of plaintiff’s counsel to find a legislative or constitutional hook on which to hang the alleged public policy, and the court’s willingness to approve of the creativity. Indeed, the more creative the public policy, the more unpredictable the outcome of potential litigation. For this reason, employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

WIRTW #274 (the “Dunder Mifflin” edition)

Last night brought us the final episode of what may be the greatest ever satire of the American workplace—The Office. Seinfeld, that is how you do a series finale.

In its honor, I bring you one of my favorite clips from my favorite episodes from show’s nine-year run, Diversity Day. If this doesn’t make your employment law skin crawl, nothing will:

 

Here are 59 other reasons we’re going to miss The Office.

Here’s the rest of what I read this week:

Discrimination

• Want to cut the line at the Disney park? Call my disabled friend — from Walter Olson’s Overlawyered
• “Bashful Bladder” As A Disability? Running Water The Accommodation? — from Employment Discrimination Report
• Horniest boss ever? His employee still can’t prove sexual harassment — from The Employer Handbook Blog
• Angelina Jolie and Employment Law — from Phil Miles’s Lawffice Space
• Bad Credit Could Cost You a Job — from Nolo’s Employment Law Blog
• EEOC Brings, Settles First Ever GINA Lawsuit — from Employer’s Law Blog 
• “My Prior Complaint Was One of the Reasons for the Adverse Employment Action”: Mixed Motive Theories for Retaliation Claims Under Title VII — from HR Defense Blog

Social Media & Workplace Technology

• Social Media By the Numbers — from Social Media Strategies Summit Blog
• How Can You Avoid Lawsuits While Using Social Media to Screen Applicants? 10 Steps to Consider — from The Emplawyerologist
• Social media and nonsolicitation agreements — from Technology for HR

HR & Employee Relations

• Asking to telework when you have your period — from Ask a Manager
• Should these employees have been terminated? Tell us what you think! — from Robin Shea’s Employment & Labor Insider
• Try Acting More Like a Kindergartner — from Evil HR Lady writing at Inc.com
• Dear Evil Skippy: Can I Refuse To Hire Someone With Tattoos? — from Evil Skippy at Work
• Hipster Bias > Another HR Hurdle? — from Fistful of Talent
• Fired For Voicing My Concerns — from Work Place Coach Blog News
• Using Standard Form Employee Handbooks; Damned if You Do, Damned if You Don’t — from damnedif
• Here’s Why Bullies Are Taking Over Your Organization — from TLNT

Wage & Hour

• To Be Or Not To Be An Independent Contractor — from San Antonio Employment Law Blog
• Congressional Roundup: Republican Comp Time Bill Gets a Vote — from Bloomberg BNA
• “They Owe You” Does Not Always Mean You Can Withhold — from Trade Secret / Noncompete Blog
• FLSA Compliance: Dispelling the Great Myths — from HR Daily Advisor
• Employers Play Whack-A-Mole with Internship Lawsuits — from The Wage and Hour Litigation Blog
• Is Time Spent Traveling to Trainings Outside of Normal Working Time — from Smart HR Manager

Labor Relations

• “The N.L.R.B.’s Contested Poster” — from How Appealing
• Senate Republicans Call for Hearing on NLRB's Budget Request — from Wisconsin Employment & Labor Law Blog

Patriots cutting of diabetic player raises serious ADA issues

The New England Patriots recently cut defensive tackle Kyle Love. This news is not worthy of consideration on an employment law blog until I tell you the reason the Pats cut him. According to FoxNews, the Pats cut him two weeks after his diagnosis with Type 2 diabetes out of a concern over his “recovery time.”

If I’m Kyle Love’s agent, I’m finding him the best employment lawyer possible to argue that the Patriots cut him because of his diabetes, a protected disability.

Yesterday, the EEOC conveniently published guidance on the employment rights of people with specific disabilities. One of the specific disabilities for which the EEOC published new guidance is diabetes.

According to the EEOC, there is little doubt that diabetes is a disability protected and covered by the ADA:

As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Given the timing of the Patriots’s decision, coupled both with its apparent failure to offer any kind of accommodation for Kyle Love’s disability, and the stated reason for its decision, Kyle Love appears to have a strong disability discrimination case. Had the Patriots called me, I would have counseled against cutting him, at least at this time and in this manner.

Consider Kyle Love’s problem in light of this hypothetical, provided by the EEOC in its diabetes guidance:

When an actor forgets his lines and stumbles during several recent play rehearsals, he explains that the fluctuating rehearsal times are interfering with when he eats and takes his insulin. Because there is no reason to believe that the actor poses a direct threat, the director cannot terminate the actor or replace him with an understudy; rather, the director should consider whether rehearsals can be held at a set time and/or whether the actor can take a break when needed to eat, monitor his glucose, or administer his insulin.

It is an understatement to characterize this termination—undertaken without any apparent consideration of whether the team could accommodate the diabetes—as high risk.

Jeffrey Nye made me aware of this story on Twitter last night, and asked, “The Patriots cut Kyle Love because he has diabetes. How can they do that?”

They can’t (or at least shouldn’t be able to in the manner in which they did it). It would not surprise me in the least if, given the high profile nature of this employment decision, the EEOC takes up Kyle Love’s cause to further its mission of disability-rights awareness.

Employee vs. independent contractor: do you know the difference

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a mis-classification occurred:

• Unpaid overtime.
• Unpaid taxes.
• Un-provided benefits.
• A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference? Troyer v. T.John.E. Productions, Inc. [pdf], decided yesterday by the 6th Circuit, provides some insight.

The issue in the case was whether the company failed to pay overtime to three individuals who performed road crew services (setting up and breaking down displays) at the company’s collegiate and corporate events. The court determined that the company had mis-classified them, and owed them unpaid overtime as employees:

Plaintiffs testified that their working relationship with Defendants was relatively permanent, they worked hundreds of hours of uncompensated overtime over several months, and that Defendants exercised strict control over their schedule and day-to-day activities while out on the road. Defendants countered that Plaintiffs worked on a job-by-job, independent contractor basis, that the Plaintiffs had a great amount of autonomy regarding how they completed their work.

In determining whether an worker is an employee or an independent contractor, the IRS looks compares the degree of control exerted by the company to the degree of independence retained by the individual. Generally, the IRS examines this relationship in three ways:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If you are considering classifying someone performing services for you as an independent contractor, your answers to these three questions will determine whether that individual is a bona fide contractor, or instead, is a employee. When in doubt, err on the side of caution. The government applies these tests aggressively to find employee-status whenever it can. You should too, and the risks are too high to make a mistake.