Calling for a balanced approach to criminal background checks

Yesterday, the EEOC continued its series of public meetings examining hiring practices as alleged employment barriers, covering employers’ use of arrest and conviction records. According to the EEOC’s press release, it is trying to strike a balance between workplace fairness and workplace safety. Let’s hope that the EEOC is serious about being balanced in its approach to this important issue.

The EEOC’s position has always been that blanket policies that disqualify people with criminal backgrounds violates Title VII. Instead employers should undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job. At the minimum, the EEOC should continue this approach.

Nothing will be served by tightening the reigns on employers’ ability to conduct reasonable criminal background searches. Consider, for example, the May 2009 verdict against a Virginia assisted living facility that failed to discover that it had hired a sex offender. This example might be extreme, but it illustrates that criminal histories are necessary and relevant for many employers. Every employer does not need to check the criminal background of every applicant. However, it is imperative that the EEOC allow employers the flexibility to decide for themselves which positions warrant criminal history histories, and then which crimes disqualify a candidate from employment.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Start-up offers social media background searches; employers rejoice and privacy advocates mistakenly groan

More employers are turning to social media sites to vet potential employees. There is no doubt that sites like Facebook and Twitter offer a wealth of information about potential hires. Using these sites to vet job candidates offers a great opportunity, and also a huge risk. Using publicly available information on the Internet has the risk of disclosing protected EEO information, such as disability, age, race, or religion, or, at a minimum, raising a dangerous inference that such information was discovered and used in the hiring process.

Nearly two years ago, I cautioned employers against relying solely on online background checks to vet potential employees. I recommended using a “third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.” No companies were available, though, that specialized in these types of background searches, until now.

Last month, the FTC signed-off on a year-old company that searches social media sites for employers conducting background searches on employees—Social Intelligence Corp. In last Wednesday’s New York Times, Jennifer Preston wrote a profile of the start-up that has generated a lot of online discussion:

Companies have long used criminal background checks, credit reports and even searches on Google and LinkedIn to probe the previous lives of prospective employees. Now, some companies are requiring job candidates to also pass a social media background check.

A year-old start-up, Social Intelligence, scrapes the Internet for everything prospective employees may have said or done online in the past seven years.

Then it assembles a dossier with examples of professional honors and charitable work, along with negative information that meets specific criteria: online evidence of racist remarks; references to drugs; sexually explicit photos, text messages or videos; flagrant displays of weapons or bombs and clearly identifiable violent activity.

According to Social Intelligence’s CEO, Max Drucker, its services “have turned up examples of people making anti-Semitic comments and racist remarks…. Then there was the job applicant who belonged to a Facebook group, ‘This Is America. I Shouldn’t Have to Press 1 for English.’”

I have not used Social Intelligence’s services, and I am not endorsing its product. What is appealing about it, though, is its professed ability to screen out protected EEO information:

Our technology allows us to turn around reports in 24 to 48 hours while still having social media activity about every job applicant manually reviewed. Social Intelligence Hiring presents employers with reports on only employer-defined objectionable material, such as racist remarks or behavior, explicit photos and video, and illegal activity. We flag job candidates associated with negative and positive material, filtering out their “protected class” information and reporting only relevant and desired data. Summary and detail views present easy-to-understand results, with screenshots of pertinent material.

Social Intelligence has sparked a lively debate on the Internet. The New York Times story alone has a whopping 258 comments to date. I participated in a discussion on Google+ about the New York Times article, where my opinion voicing the validity of checking employees’ social media activities was decidedly in the minority. The majority, who expressed privacy concerns, misses the mark. Social media is inherently public, and employees who do not tend to their online image risk an arduous job search.

If you want to learn more about the proper and improper uses of social media in the hiring process, Think Before You Click: Strategies for Managing Social Media in the Workplace is now available from Thompson Publishing. I also recommend part two of Stephanie Thomas’s Proactive Employer Podcast—the HR and Social Media Roundtable—airing live this Friday (July 29) at 8:30 am on BlogTalkRadio, and later available for on-demand listening at The Proactive Employer and via iTunes.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Is this what a disability analysis looks like under the ADAAA?

A lot has be written over the past couple of years predicting how the 2009 amendments to the ADA have eviscerated the definition of disability. Here’s what I wrote a couple of months ago, after reviewing the EEOC’s then-new regulations:

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability.

Now, we finally have an example that starts to prove these predictions correct.

Gesegnet v. J.B. Hunt Transport (W.D. Ky. 5/26/11) concerns whether an employer failed in its obligation to reasonably accommodate an employee’s bi-polar and anxiety disorders by making arrangements for a pre-employment drug screening somewhere other than a small room. Before the court could reach the reasonable accommodation issue, it had to first address whether the employee qualified as “disabled” under the ADA. The following is the court’s searing analysis of this important threshold issue:

In difficult cases, a plaintiff usually proves disability through a combination of medical evidence and personal testimony detailing the practical impact of that medical condition. Here, Plaintiff is lacking in each area.... The Court doubts that the medical and personal evidence here is sufficient to show an actual inability to perform a basic function of life. Nevertheless, given the broad definition of disability Congress intended, the Court will assume that Plaintiff has a disability under the ADAAA.

Because employers will not be able to prove that an employee is not “disabled,” employers will be better served by focusing their ADA-compliance efforts on the two issues that now matter: avoiding discrimination and providing reasonable accommodations.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Announcing the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace

It is with great pride and accomplishment that I announce the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace (née HR and Social Media: Practical and Legal Guidance). This book, which I believe is the first of its kind discussing the intersection of social media, HR, and labor/employment law, comprehensively covers the following:

• What Is Social Media?: An examination of the “Big Four” in social media (blogs, Facebook, Twitter, and LinkedIn): how they are used today, and what’s on the horizon for tomorrow.
• Drafting the Workplace Social Media Policy: 10 considerations every employer needs to think through before drafting and implementing a workplace social media policy.
• Hiring and Recruiting: How employers are using social media to locate, vet, and screen potential employees and new hires.
• Privacy Protections: How privacy and social media interact in the workplace, and the various constitutional, statutory and common law privacy rights implicated by social media.
• Post-Employment Covenants and Trade Secret Claims: How best to protect confidential information and trade secrets from disclosure via social networks by current and former employees.
• Litigation: How lawyers are using social media as evidence in litigation against employers.
• Labor Law: The meaning of protected, concerted activity, anti-solicitation policies, and how the National Labor Relations Board is applying these long-standing principles in an attempt to gut employers’ attempts to regulate what employees about saying about them online.

Having edited the entire book, I can say without reservation that it is a must for any business owner, executive, manager, human resources professional, or attorney who is concerned about the effect social media is having on the modern workplace and the liability risks that flow from it. In short, this book will prove to be an invaluable resource as businesses try to navigate these uncharted waters.

When Thompson first approached me about authoring this book, I candidly told them that I would love to write the book, but my busy practice would not permit the time to crank out the entire tome. For that reason, I am eternally grateful to my team of contributing authors—Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Philip Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz)—who helped write an amazing book and without whom the book would not have been possible and would not be as good as it is.

Now click over to Thompson Publishing for more information, including how to order a copy.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #186 (the carnival edition)

This week marks the 186th edition of What I Read This Week, where I share the best what caught my eye as I surfed around the blogosphere (mostly) for the last 7 days. This week, Eric Meyer’s The Employer Handbook launched the Employment Law Blog Carnival, a monthly collection of submitted blog links on employment law arranged around a particular theme. I’ll be hosting the Carnival’s 2nd edition (theme tbd), on August 17, so feel free to send (jth@kjk.com) or DM (@jonhyman) your links by August 15.

I’d also be remiss if I did not give one more plug for Stephanie Thomas’s Proactive Employer Podcast on social media, in which I participated, which aired live at 8:30 this morning. Part 2 airs next Friday at the same time. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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

Discrimination

• Cubicle Walls Closing In On ADA Violations – from Stephanie Thomas’s The Proactive Employer Blog
• 4 Ways Employers Skirt Discrimination Laws – from The Street
• Religious Discrimination Based on Abercrombie “Look Policy” – from Employment Matters Blog
• Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law – from Michigan Employment Law Advisor
• No-Fault Attendance? In light of the EEOC/Verizon settlement, what’s the point? – from Employment and Labor Insider
• Avoiding discrimination class actions – from Inside Counsel

Social Media & Workplace Technology

• Steamed—Employment Law Attorneys & Social Media – from Blogging4Jobs
• OMG! The cost of social-media blunders – from today.com
• Plaintiffs, Beware of Social Media – from Social Media Today
• Nearly Half of Companies Have No Social Networking Policy – from Manpower Employment Blawg
• Using Social Media for Discovery Has Ethical Implications – from From the Sidebar
• Someone Posted Something Nasty About You On The Internet. Now What? – from Kashmir Hill’s The Not-So Private Parts
• The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree – from Pennsylvania Labor and Employment Blog
• The New Norm in HR: Social Media Recruiting – from Social Axcess
• Social Recruiting On The Rise In 2011 – from Cincy Recruiter’s World
• How to Create A Social Recruiting Strategy – from MonsterThinking

Employment Relations & HR

• Potty Training and how it relates to Careers (this should be interesting) – from Smelling Some Roses
• Bill Clinton and the “Extreme and Outrageous” IIED Hurdle – from Philip Miles’s Lawffice Space
• 7 Ways to Get at the Truth in a Workplace Investigation – from iSight Blog
• Employee Morale Tanks When A Co-worker Takes Sick Leave – from Workplace Diva
• Plaintiff’s Lawyer Reveals: Mistakes that Make My Day – from HR Daily Advisor
• Anti-Anti-Smoking Rules – from Workplace Prof Blog
• Leaky Hiring Tests: Are They Your Organization’s Most Expensive Mistake? – from TLNT
• Horrible Bosses? – from Harvard Business Review
• Unlimited Vacation, but Can You Take It? – from The Wall Street Journal

Wage & Hour

• Complaint re: Wages on Facebook Not Basis for FLSA Retaliation Claim – from Molly DiBianca’s Delaware Employment Law Blog
• Salaried Workers, Do You Get Overtime Pay? Odds Are You Should! – from Donna Ballman’s Screw You Guys, I’m Going Home
• You Be the Judge: Did boss tell employee to falsify his time card to omit overtime? – from HR Cafe
• DOL Playbook – from Laconic Law Blog
• Employers Urge Congress To Revise the Fair Labor Standards Act – from Wage & Hour - Development & Highlights
• Using GPS Tracking Technology to Prove Intermittent FMLA Abuse? – from Texas Employment Law Update
• Is There Paternity Leave in Baseball? – from Work and Family Blog
• Taking FMLA Leave to Care for a Parent or Parental Figure – from Wisconsin Employment & Labor Law Blog

Labor Relations

• NLRB’s Invisible Hand Will Hold Back Business – from The ChamberPost
• Bill That Would Remove NLRB’s Authority to Order Employers to Relocate or Close Their Facilities is Introduced – from Washington D.C. Employment Law Update
• Speakers List Grievances About Proposed NLRB Election Rule Changes – from Labor Relations Counsel

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Find the sweet spot when firing a bad employee

There is a balance between providing a poor-performing employee sufficient time to improve and waiting to long to fire someone. Cohen v. CHLN, Inc. (E.D. Pa. 7/13/2011) illustrates what can go wrong when this balance goes out of whack.

Howard Cohen managed various restaurants from 1998 through 2006, and again from 2007 until his termination in August 2009. During his second tenure with the restaurant company, his performance was less than stellar; he received various disciplinary warnings, write-ups, and suspensions, and two consecutive negative annual reviews. The restaurant waited to terminate Cohen, though, until the day after he advised of his need for back surgery. Based on that fact alone, and ignoring management’s internal discussions about terminating Cohen before he communicated his need for surgery, the trial court denied the employer’s motion for summary judgment:

Defendants have undoubtedly presented a wealth of evidence justifying their termination of Plaintiff. Nonetheless, their failure to fire Plaintiff, after years of poor performance reviews, until the morning after he requested leave for his back condition raises a sufficient question as to Defendants’ alleged discriminatory motive to render summary judgment inappropriate.

Don’t make the same mistake. Look for the sweet spot before firing a poor performer.

• Fire after you’ve provided the employee sufficient and reasonable warnings and opportunities to improve. Firing too early could lead a judge or jury to conclude that the termination was an ambush, and punish accordingly.
• Fire before the employee engages in some protected activity. Firing too late—as in the Cohen case—could lead a judge or jury to conclude that something other than poor performance motivated the decision. The last thing you want in a discrimination or retaliation case is a search for an explanation other than your proffered legitimate non-discriminatory reason.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.