Archive for the ‘Employer Legal Issues’ Category

Employers Can Learn from Paula Deen’s Mistakes

Wednesday, August 7th, 2013

employee screening, employee credit checkEarlier this summer, TV chef Paula Deen was known more for her teary performances on talk shows than for her down-home cooking on her own show, after she was accused by an employee of using racial slurs. Deen was subsequently dropped by the Food Network, as well as several other companies with which she’d held endorsement deals.

Employers can take a lesson from the fallout that Deen has experienced since her employee’s lawsuit came to light. Sexually explicit or racially charged language has no place in the business world, but sadly, it is not unheard of. Now is a good time to re-establish rules and reinforce them with your employees–and to take them to heart yourself, if necessary.

Watch your language: Racial slurs, sexual comments and biased language should not be allowed, period. From the boss on down, establish a zero-tolerance policy, and enforce it. Doing otherwise opens your company up to liability.

Show respect: No matter whom you are interacting with, pay attention to your behavior. Your words, actions and body language might make others uncomfortable, which could create a hostile working environment. Don’t assume that just because someone is of your gender and race that you can use language with him or her that demeans those who are not. The plaintiff in Deen’s case is a Caucasian woman.

Protect your brand: You’ve worked hard to create a company with a good reputation, but accusations of racism, sexism or intolerance can turn off both your current clientele and prospects. Consumers vote with their dollars, and word of bad behavior can bring about disastrous results.

Treating everyone fairly, keeping harmful language out of the workplace and creating a positive, respectful organizational culture can only strengthen your company. It makes it a better place to work. And it’s the right thing to do.

New Rules Protect Employees With Cancer, Diabetes, Epilepsy

Thursday, May 23rd, 2013

"employee credit check, employee background check"The U.S. Equal Employment Opportunity Commission (EEOC) has issued revised rules designed to protect employees and applicants with certain diseases or conditions.

Under the law, employers are forbidden from treating an applicant or employee less favorably because he or she has a history of disability (such as cancer that is in remission), or is believed to have a physical or mental impairment that is not transitory and minor. In addition, employers are required to provide reasonable accommodation to job applicants or employees with disabilities, unless it would cause undue hardship.

Harassment of applicants or employees who have or have had a disability is also illegal. Harassment is deemed illegal when it is so frequent or severe that it causes a hostile or offensive work environment, or results in an adverse employment decision (firing or demotion, for example).

Recently, the EEOC issued revised documents updating the requirements of anti-discrimination laws. The updates cover how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy and intellectual disabilities.

The new guidelines take into account the nearly 34 million Americans with epilepsy, diabetes and cancer, and the two million with intellectual disabilities. Many of these Americans are in the workplace, or trying to enter the workplace.

The documents contain changes to the definition of “disability” to make it easier to conclude that people with these diseases and conditions are protected by the ADA. In addition, the documents answer typical employer questions, such as what types of accommodations they must make, how to handle safety issues and whether the employer is allowed to ask employees and applicants about medical issues.
From the EEOC website, the following is a definition of disability:

A person can show that he or she has a disability in one of three ways:

  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Office Dating: OK or Not OK?

Friday, February 15th, 2013

employee screeningLots of couples meet at work. It’s inevitable: when you put people in a closed environment, where they see each other every day, sparks will start to fly. But not all office romances survive, which can be problematic for employers.

Sometimes it takes a bad experience for companies to decide they need a dating policy, whether it’s a strick no-dating policy or just some guidelines for employees, should they choose to date each other (which they will inevitably do, even if it’s an official no-no).

Here are a few ideas for dating policies that many employers find effective:

  • No interfering with work: Especially when a relationship is new, employees who are dating will almost always allow it to affect their work. They may find new ways to see or talk to their love interest throughout the day, send distracting emails, or sneak away for romance. It’s not fair to other employees to have to pick up the slack. And lovebirds who attend meetings together can make others uncomfortable if they are obvious about their relationship. Emphasize to employees that if they date a co-worker, they may not allow it to affect their work or that of their peers.

  • No dating between supervisors and their team members: It’s never a good idea for managers to date their subordinates because it puts the company at risk for legal action. That alone is reason to ban it. In addition, bosses could show favoritism to their loved one, or worse, treat him or her badly in an effort to avoid favoritism.
  • No sexual harassment allowed: Allowing dating is not the same as encouraging it. Operating in a free-for-all type of atmosphere could give employees the impression that any sort of sexual behavior is okay in the office. Having a zero-tolerance policy concerning sexual harassment will go a long way to defining expectations.

Employers may not be able to prevent workplace romances, but they can try to control them as much as possible, to save the company loss of productivity and reduce risk of legal action.

Letting Employees Go

Saturday, November 17th, 2012

employee screening, Even the best hiring processes don’t always result in perfect hires. Hiring managers may carefully screen applications and resumes, interview the most promising candidates and check references. They narrow the choice down to a few possible hires and conduct all of the necessary employee screening checks. The best candidate passes with flying colors, and everyone agrees to make an offer.

But it doesn’t always work out. Employees don’t meet expectations, or are unable or unwilling to improve their performance. Some break company policies—or even the law. For whatever reason, every employer at some point faces the unpleasant task of letting employees go. But it’s not easy.

Because termination is an expensive process, with the potential for legal problems, experts recommend going through a standard process to protect the company from legal issues and retaliation.

  • A solid paper trail of documentation will help. It can start with the hire: give all employees an offer letter or include in your employee manual that employment is at will and may be terminated at any time. Do be aware of employment laws. Not every offense is a terminable one.
  • Employee manuals should be given to each employee, with clear policies and the consequences of breaking them.
  • Performance evaluations or appraisals are a must, especially for new employees. Conduct them at 30, 60 and 90 days, to keep track of discussions and warnings regarding employee performance.
  • Base your termination decision on performance, unless the employee has policy infractions serious enough to warrant termination, such as theft, failing a drug test, or on-the-job alcohol or drug use.
  • When the decision is made, act quickly. When it’s time to tell the employee, be prepared. Gather all the necessary documentation, including any required forms for the employee to sign. Have a witness with you.
  • Prepare what you’ll say, and keep it professional. If there is any severance pay, let the employee know. Keep the conversation short and don’t argue. Allow the employee to vent if necessary. This is not the time for your feelings or emotions to come in. Try not to apologize or over explain the reasons, which could cause confusion.

Of course, if you have questions about terminating employees, consult your legal advisor.

What Not To Ask a Job Candidate in an Interview

Thursday, October 18th, 2012, employment screeningWhether you’re new to interviewing job candidates, or have been at it for years, we’ve got some news for you: the same old questions won’t do.

The purpose of the job interview is to find the person who can do the job you need to fill, fit in with your company’s culture and stay out of trouble. Not all questions will get you to that goal.

A few questions that employers should not ask:
“Tell me about yourself” – This question is just too general to result in the information you need to know to hire the right person.

“Would you like some coffee?” – Don’t distract yourself or the interviewee from the task at hand. If they say “yes” out of sense of politeness or obligation, you’ll then have to find out about cream and sugar, fetch a mug, make the coffee. Skip the beverage service and get to the interview.

“Do you have your references?” – Again, this detracts from the interview and puts the focus on former employers, friends of the family or semi-influential community members that the candidate might want you to know all about. Save this question for later in the process.

“Where to you want to be in five years?” – There are few good answers to this question. If the candidate answers with “in your chair,” or “president of the company,” is that really what you want to know? They can’t say that they’d like to stay for two years and then jump ship to their buddy’s startup. And if they say they’d love to be in the same job, in the same cubical, doing the same work, what does that say?

Of course, there are questions that can get you into big legal trouble, specifically those that lead to claims of discrimination. Employers are not allowed to ask family-related questions, such as asking a woman how many children she has, or about an applicant’s religion, national origin, marital status, race, disabilities, health or physical abilities, or age. Asking whether an applicant is a U.S. citizen is also illegal.

Federal “Ban the Box” Background Check Prohibition Introduced

Thursday, September 20th, 2012

pre-employment screening, criminal background check, employee screening, credit checkThis summer, a bill was introduced in the U.S. House of Representatives that would prohibit an employer from inquiring whether an applicant for employment has been convicted of a criminal offense. The federal “Ban the Box Act” allows for two exemptions: when a conditional offer of employment has been made or if granting employment could pose unreasonable safety risks to specific individuals or the general public.

If the bill passes, the Equal Employment Opportunity Commission (EEOC) would be required to issue rules and guidelines for employers to follow. They would define the categories in which an applicant’s criminal history would pose such a safety risk, and the factors to consider when making the determination that hiring an individual poses unreasonable risks.

The bill’s sponsor is Representative Hansen Clarke (D-MI), who has said the goal is to curtail recidivism, since individuals with criminal histories who cannot get jobs are more likely to commit additional crimes. Co-sponsors of the bill are John Conyers, Bobby Rush, Charles Rangel, Frederica Wilson and Keith Ellison.

According to, a website that provides information on pending legislation and members of Congress, the bill is currently is in Committee, awaiting a report. The site’s prognosis is that the bill as a 2% chance of being enacted, mostly because just 4% of all House bills in 2009 – 2010 were enacted.

“The Box” refers to the area on an employment application where applicants are required to check a box if they have been convicted of a crime. Many states and municipalities across the U.S. have enacted such bans for themselves and employers of certain sizes. Some prohibit criminal background checks and employment screening until a conditional employment offer has been issued. Others allow criminal history checks if a conviction is related to the position.

Employers should check the laws in their localities, and utilize only a professional, trusted background check provider such as

The Potential Problems of Personal Mobile Devices

Thursday, August 23rd, 2012

employee screening, employee background check, prescreen employeesAt first glance, whether to allow employees to use their personal smartphones and tablets for work purposes seems like a job for IT. But it can be a headache for the HR department and business owners, as well. Mobile devices are more popular than ever, enabling people to work from almost anywhere, around the clock. This is where it starts to get sticky from a personnel policy standpoint.

Non-exempt employees must be paid for any work they perform for an employer, whether or not they are onsite—and whether or not the employer knows about or authorizes their work. To avoid this potential nightmare, many firms have established policies against issuing company-paid devices to these workers and closely monitoring any use of personal devices. At minimum, a clear policy prohibiting the practice is required. Even exempt employees could be entitled to pay if they check messages or check in on projects while on vacation or a leave of absence, so be careful to communicate the policy at every opportunity.

Personal devices also leave companies at risk for a variety of lawsuits. The proliferation of texts and social media posts present the potential for liability, from sexual harassment to consumer retaliation. It’s important to maintain the same control over text messages as any written communication—even through texts are often viewed as less formal, and therefore not subject to established policies on sexual harassment and public statements.

Finally, employees’ personal devices can be conduits for sensitive company information. When staffers with access to such information are terminated, big problems can ensue. Even though it can wreak havoc if placed in the wrong hands, employers may not be entitled to access an employee’s personal device, either to capture information for use in legal proceedings or to wipe it clean. It’s best to limit access whenever possible, but that’s not always practical. When developing a personal device policy, include a release that workers agree to allow the company to recover data from their smartphones or tablets when they leave the company under any circumstances.

Be sure to include these issues when writing your company’s policy on workers using their personal devices at work. And if you haven’t yet instituted such a policy, you should consider making it a priority.

Woman Claims She Was Fired Over Living Situation, Sues Employer

Friday, May 11th, 2012

employee screening criminaldata.comA worker fired from her job at a Christian university in Lakewood, Colo. has filed a lawsuit against her former employer. She claims she was let go after administrators asked if she were “living in sin” with her boyfriend.

The woman said she was “shocked” that the school was concerned enough about her personal life to fire her over it. After administrators refused to communicate with her about the issue, she decided to file the suit.

The suit states that an innocent incident of getting coffee with a married male coworker led to the plaintiff being questioned by a university vice president about an “alleged relationship” with the man, as well as questions about her personal life. She claims no relationship existed, but was told she had been seen “laughing and joking” with him. The vice president allegedly went on to say that the fired worker was a distraction to the coworker’s marriage, which would hinder her career at the university.

The university flatly denies the allegations, stating that she was let go “for purely business reasons because she wasn’t doing her job.”

Not so, says the lawsuit. It states that the plaintiff was also retaliated against for her medical problems. She suffered from various issues that required her to request leave under the Family Medical Leave Act. When she met with the human resources department, the director asked her questions directly related to her private life, including whether she lived with and was having sexual relations with her boyfriend. The director stated this would be “potential grounds for termination.”

The employee was approved for FMLA, which she claims is another reason for her dismissal. She also claims the university violated state law for terminating her for lawful activity off premises during nonworking hours (the “living in sin” part).

This could be an uphill battle for the plaintiff; the Supreme Court generally upholds religious institutions’ hiring and firing decisions, based on their beliefs. We’ll keep an eye on this case and report any progress.

When hiring new employees, be sure to conduct proper background screening. The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

EEOC Updates Guidance on use of Criminal Records in Employment Decisions

Friday, April 27th, 2012

Employee background check, pre-employment criminal background checkThis week, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidelines regarding employers’ use of arrest and conviction records in employment decisions. The ruling was made pursuant to Title VII of the Civil Rights Act of 1964.

The new guidance updates and clarifies the EEOC’s previous policy, in an effort to help job seekers, employees and employers. The report discusses how using criminal history reports could violate Title VII, how federal court decisions analyzing Title VI as applied to criminal records, compliance with other federal laws that restrict or prohibit employing individuals with certain criminal records, and the differences between treatment of arrest and conviction records, among other topics.

While little of the guidance document is new, it does consolidate a series of documents in one place. One HR group spokesperson said it does not appear “to impose a one-size fits-all set of rules” and seems to consider employers’ disparate needs and concerns when using criminal background checks for pre-employment screening.

However, there appear to be potential conflicts between this document and state laws that require criminal background checks in certain industries and positions.

Among the groups showing support for the new guidance include civil rights law groups. One issued a statement saying that it will “greatly reduce the misuse of criminal history background checks to deny employment to persons of color,” because the guidance strengthens enforcement efforts against employers who are not using criminal background checks properly.

A Q and A page on the EEOC’s Enforcement Guidance can be found here. It reinforces that Title VII does not prohibit employers from obtaining criminal background reports on job applicants.

California Court Says Employees Can Work Through Lunch

Friday, April 13th, 2012

employee screening blogCalifornia employment laws have long stated that employers must provide employees with a meal break. But the law was unclear regarding whether employees are prohibited from performing work during that time, or if they may work if they choose to.

A San Diego Superior Court decided that they may indeed engage in work during their meal breaks. The court ruled that employers fulfill their obligation when they give employees a 30 minute break and relieve them of all duties, give up control of their activities and when the employer gives a “reasonable opportunity to take an uninterrupted break, and does not impede or discourage them from doing so.”

If the employer does all that, and employees still want to work, they have the right to do so. The unanimous ruling was seen as a victory for employers. Another part of the decision specifies that employees must get one meal break for every 10 hours of work, rather than a break for every five hours, as some employee advocate groups had argued.

Employers will no longer be required to “babysit” employees, say some. As long as they make meal breaks available and encourage employees to take them, they are not liable for claims brought by employees that they didn’t receive them.

Employers are not allowed to apply pressure or provide incentives to work without breaks. And they must pay employees for any work performed. However, they are liable only for straight pay, not overtime pay—unless the extra 30 minutes puts the employee in an overtime situation.

The ruling came as a result of an eight-year legal battle against the company that owns Chili’s restaurants, for allegedly requiring employees to work through meal and rest breaks. Employees claimed that they were made to clock out for breaks, but to continue working through them.