Criminal background checks remain on the EEOC’s radar

Four months ago, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance prohibits employers from implementing broad-based blanket exclusions on any individuals with an arrest or criminal history. Instead, it provides that the consideration of criminal convictions requires a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

Last week, the EEOC issued its Draft Strategic Plan for Fiscal Years 2012 – 2016, which provides that the identification, investigation, and litigation of systemic discrimination cases—pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area—is a top strategic priority for the agency.

On Monday, these two issues came together. The Nashville Business Journal [hat tip: employeescreenIQ Blog] reported that the EEOC will likely filing a lawsuit against Dollar General Corp., challenging that its criminal background check policy has a “disparate impact” on black job candidates and employees. Apparently, Dollar General Corp.’s policy “excludes from employment individuals with certain criminal convictions for specified periods.” This lawsuit comes on the heels of a $3.13 million settlement paid earlier this year by Pepsi to settle litigation with the EEOC over hiring policies that excluded anyone who had been arrested pending prosecution.

Needless to say, the EEOC continues to take a long, hard look at hiring practices—such as the use of arrest and conviction records—because of their potential adverse impact against African Americans and Hispanics. If you are considering using arrest or conviction records to aid in your hiring decisions, do not do so without a reason connecting the offense to the job, and without the input of employment counsel versed on these issues.

[photo credit: brizzle born and bred via photo pin cc]

Testing employees for legally prescribes medications must be done carefully

A recent settlement announced by the EEOC points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the ADA.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

Transfer preferences to vacant positions as an ADA reasonable accommodation continue to baffle courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, non-disabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

• Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

• Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

WIRTW #241 (the “replay” edition)

In case you missed it,and for your listening pleasure—

Here’s yesterday’s appearance on DriveThruHR:

Listen to internet radio with Wempen and Tincup on Blog Talk Radio

And here’s yesterday’s appearance on The Proactive Employer:

Listen to internet radio with TheProactiveEmployer on Blog Talk Radio

P.S. Today is the last day to nominate your favorites legal blogs for the ABA Journal’s Blawg 100. Thanks for your support.

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

Discrimination

• EEOC’s “emerging issues”: LGBT rights, and accommodations for pregnant women — from Robin Shea’s Employment and Labor Insider
• “Family Responsibilities Discrimination” - Is This The Next Worry For Employers? — from Employment Discrimination Report
• Benchslap: Reinstating Sexual Harasser is “Absurd” — from Phil Miles’s Lawffice Space
• Employer Liability in Single-Severe-Incident Harassment Cases — from i-Sight Investigation Software Blog
• Playing the Race Card — from Workplace Prof Blog
• A Look to the Future: Human Augmentation as Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Religious accommodations 101 — from Sindy Warren’s Warren & Associates Blog

Social Media & Workplace Technology

• Plaintiff has to turn over emotional social media content in employment lawsuit — from Internet Cases
• How often do you Google your own name? — from Social Media Today
• What do employers look for when they monitor your Internet usage at work? — from Ask a Manager
• This Is Why You Want Passwords On Your Phone And Computer — from Kashmir Hill’s The Not-So Private Parts
• Why I May Have to Eat My Emoticons — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Case Study: How Hard Should You Push Diversity? — from Harvard Business Review
• Employee Background Checks and the Fair Credit Reporting Act — from Minnesota Employer
• My coworker is making me sick — from Evil HR Lady, Suzanne Lucas
• Great moments in financial employment regulation — from Walter Olson’s Overlawyered
• Man Fired for 49 Year Old Conviction: Who’s to Blame? — from Nick Fishman’s employeescreenIQ Blog
• Ken and Barbie Bias in the Hiring Process… — from The HR Capitalist, Kris Dunn

Wage & Hour

• Back to School for Kids; Back to Work Limits for Employers for Child Labor — from Dan Schwartz’s Connecticut Employment Law Blog
• Vargas v. GNC: Off-the-Clock Class Certified — from Impact Litigation Journal
• Rotten apples and the FMLA: What to do — from HR Cafe

Labor Relations

• Labor Has a Day, So Why Not Corporations? Retired Employment Lawyer Touts Idea in Op-Ed — from ABA Journal Daily News
• Overbroad At-Will Disclaimers and Confidentiality Requests Are Being Challenged in Non-Unionized Workplaces — from Employment & the Law

Unemployment (or prior lawsuits) as a protected class? Not so fast says the 6th Circuit

Last week, in Berrington v. Wal-Mart, the 6th Circuit considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. William Berrington claimed that a Kalamazoo, Michigan, Wal-Mart’s refusal to rehire him after he filed a unemployment claim related to a prior termination wrongfully violated the state’s public policy. The 6th Circuit disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party has been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction (Ohio included) recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, Berrington suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as Berrington suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions (the civil rights statutes notwithstanding).

How long is too long for a medical leave of absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves:

The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA…. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

Last week, the 10th Circuit Court of Appeals clarified that while unpaid medical leaves are a possible reasonable accommodation, no employee is entitled to an indefinite leave of absence.

In Robert v. Board of Cty. Comm’rs of Brown Cty. Kan. (8/28/12), the 10th Circuit concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as supervisor of released adult offenders, developed sacroiliac joint dysfunction. After a lengthy leave of absence, including 12 weeks under the FMLA, Robert remained unable to perform all of her required duties—including visiting offenders at their homes or in jail, supervising drug and alcohol screenings, and testifying in court. She sued for disability discrimination following her termination.

In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence:

Although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation…. In light of Robert’s complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation…. There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position…. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. For that reason, she was not a qualified individual under the ADA and her claim of discrimination fails.

What does this case mean from a practical standpoint? That an indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. On the broader issue—how long of a leave is too long to be reasonable—the court punted. While the court passed on this important issue, it did suggest that six months might be too long, although a hard-cap on a duration of a leave as a reasonable accommodation is a moving target.

If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date, and prepare to be flexible. While an indefinite leave almost always will be unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company.

[Hat tip: Eric Meyer’s The Employer Handbook]

Are your policies updated to account for Ohio’s new ban on texting while driving?

The statistics are enough to scare anyone from texting while driving:

• Drivers are 23 times more likely to crash while texting and driving.
• If you only take your eyes off the road for five seconds, at 55 mph, you’ve traveled the length of football field.

As of last week, there is a reason besides safety not to text and drive in Ohio—it’s against the law.

House Bill 99 took effect August 31, and criminalizes texting while driving. It creates two levels of violations—one for adults and one for minors.

• Adult drivers face a $150 fine for texting or reading/sending email. It is a secondary offense, which means that police can only ticket if you are pulled over for another reason.
• Minors are prohibited from using any mobile communication device while operating a motor vehicle. If you are under 18, this means no texting, emailing, talking on the phone, or using a GPS, even while sitting at a traffic light or stuck in traffic. Also, it is a primary offense, carrying mandatory and escalating fines and suspensions.

What does all this mean for employers? If you have employees driving for your business, you should update your policies to account for this new law. Remind employees that texting while driving is not only against the law, but also against company policy. Your insurance carriers, and, believe it or not, your employees and their families, will thank you.