Posts Tagged ‘Employment Law’

Lawsuits Over Background Checks

Thursday, July 18th, 2013

employee screening

Last week, the Equal Employment Opportunity Commission (EEOC) filed lawsuits against Dollar General Corp and a BMW manufacturing plant over their use of employment screening. In each case, the EEOC claims that the criminal background checks used to screen applicants or terminate employees discriminated against African-Americans.

These are the first lawsuits that have been filed since the EEOC updated and clarified its background check guidelines last year. At that time, the agency warned employers that using overly broad criminal background checks that limit job opportunities for applicants with arrests and convictions on their records could set them up for discrimination charges.

While the EEOC clarified then that it was not prohibiting employers from obtaining criminal background checks on job applicants, it did want to “reduce barriers to employment” for those with criminal records who “have been held accountable and paid their dues.”

The agency is alleging that the BMW plant, in Spartanburg, SC ordered new background checks after a staffing company changed contractors. The previous contractor’s policy was not to hire anyone with a criminal conviction within the past seven years. But BMW fired anyone whose new background check revealed a criminal record for any year—and that totaled 88 employees, 70 of whom were African-American. Many of the terminated workers had been with BMW—through the contractor—for over a decade.

The EEOC claims this is a violation of the guidelines, as a “blanket exclusion” that does not take into account the nature or timing of the crime, or whether it relevant to the work performed by the employee.

BMW says it will defend itself against the allegations.

The EEOC’s case against Dollar General is a nationwide action, based on discrimination charges filed by two black applicants. One, who revealed a six-year-old conviction for possession of a controlled substance was offered employment, only to have the offer rescinded, based on Dollar General’s policy not to hire anyone with that type of conviction within 10 years.

The other applicant was rejected based on an erroneous report that she had a felony conviction. She notified Dollar General that the report was a mistake, but they did not reverse the decision, according to the EEOC.

The EEOC continues to urge employers to give applicants an opportunity to explain criminal convictions before they are rejected. It also recommends that employers stop asking about criminal convictions on job applications.

Employers, on the other hand, see criminal background checks as a way to gather as much information as possible about an applicant, so an informed hiring decision can be made. Regardless of skin color, employers have a right to know whether an applicant has a criminal record.

End of DOMA Means Changes for Employers

Thursday, June 27th, 2013

employee screening, employee background checkThe Supreme Court decision yesterday that struck down the federal Defense of Marriage Act (DOMA) has some implications for employers, but not for those that already offer benefits to partners of gay workers or to spouses in same-sex marriages in the states where it’s legal.

For now, the ruling only affects employers in the 12 states and the District of Columbia where same-sex marriage is legal or will soon be. Benefits such as pre-tax health insurance payments, 401(k) retirement plans and pensions will change, in that spouses in same-sex couples will automatically be considered beneficiaries, unless the employee states otherwise. Prior to the ruling, only heterosexual spouses were automatically considered beneficiaries, which led to issues should a gay employee died without naming his or her spouse as beneficiary.

Employers will need to change benefit plan documents to ensure equal treatment of all married couples. They will not longer be required to treat the value of employer-paid health insurance provided to same-sex spouses as taxable income. And, the Family and Medical Leave Act (FMLA) will also apply to caring for same-sex spouses. COBRA, flexible health spending accounts, and other spouse-related practices will have to apply equally to same-sex and opposite-sex couples.

Almost two-thirds of Fortune 500 firms already offer health benefits for domestic partners. Employers who don’t, in states where same-sex marriage is not yet legal, can get ahead of the curve by initiating domestic partner programs.

Nearly 300 major employers, including Johnson & Johnson, Apple, Nike, Starbucks, Morgan Stanley and Citigroup signed onto a brief arguing that DOMA was bad for business, and urged the Supreme Court to strike it down. Prior to the decision, the employers were forced to treat differently those employees in states where same-sex marriage is legal.

Even more conservative companies have seen that keeping two sets of rules and books and administrative duties is expensive. So are the legal mistakes that can easily occur. Apart from financial concerns, more companies are recognizing that being inclusive is great for employee morale and recruitment, and, as Paul Guzzi, the CEO of the Greater Boston Chamber of Commerce said on National Public Radio, “Talent is talent.”

That may be why no companies filed a brief arguing that DOMA was beneficial for business and needed to stay in place!

Respect the Personal-Professional Wall Between You and Your Employees

Thursday, May 30th, 2013,, employement screeningEmployers often speak of their staff members as “family.” It’s great when supervisors and workers can hang out together, bond over a softball game or grab a beer after work. But in the age of social media, it’s far too easy to know far too much about your employees’ personal lives. And getting too involved can lead to real problems.

You cannot, by law, discriminate against employees who belong to a protected class or category. Examples are gender, race, age, sexual orientation, religion or disability. You can’t even ask questions about these issues in interviews. Why? Because there is a possibility of discrimination if decisions are made based on these characteristics.

It’s important to create a workplace that is free from any inkling of discrimination. And the less you know about employees’ personal lives, the easier that becomes. For example, you might have an employee who shows up every day on time, works hard, achieves his goals and has a great attitude. But if you’re friends with him on Facebook, you may also find out that his political views are 180 degrees from your own—even if he’s never brought up politics at work. And that could affect how you treat him.

Here are some other personal things you don’t need to know about your employees:

  • How they spend their free time. Some people run for fun. Others sit in bars. It’s not your concern one way or the other.
  • What church they belong to—or don’t. If an employee speaks about his religious beliefs or tries to proselytize to other workers, have a talk and insist that the behavior stop.
  • How they spend their money. If you know she buys expensive shoes or likes good wine, you might decide Sara doesn’t need that raise she has earned.
  • Their sexual orientation. It’s none of your business. Period.
  • Whether they have physical or mental illnesses. Some illness will carry over into the workplace. But knowing that an employee is in therapy, taking medication or dealing with a chronic disease can affect your objectivity in evaluating her performance. Remember though, that employees with disabilities who need work station adjustments are entitled to them.

In a time when everyone announces what they’re eating for breakfast on the Internet, it takes more effort to respect the employer/employee professional relationship. But this is also a litigious time, and knowing less about your employees could keep you out of legal trouble. Keep the professional wall between you and your employees intact.

Terminating an Employee for Theft

Thursday, March 29th, 2012

employeescreeningblog, employee screening, pre-employment screeningWe’ve been talking lately about employee theft, and how it affects employers of all kinds. In this third article in our series, we look at what to do when you’re faced with this unfortunate situation.

The most sophisticated video camera systems won’t stop an employee from stealing. And unfortunately, the evidence they contain won’t always protect you from an unlawful termination suit. Even the most blatant thieves may try to protect themselves by bringing a lawsuit—and even if you win, you’ll still have to expend a great deal of time and effort.

You cannot avoid all the unpleasantries of terminating an employee, but if someone is stealing, you cannot let it continue, either. If you fear that employees are stealing from your business, keep the following dos and don’ts in mind:

  • Before you take action, take the time to do a thorough investigation. Accusing an employee is a serious charge, and you’ll need to thoroughly document your case. So don’t fire someone in the heat of the moment.
  • Do have at least two people involved in the investigation to avoid false accusations by the employee of framing for retaliation or bullying.
  • When conducting your investigation, don’t resort to crime-movie tactics. By law, you cannot go through an employee’s personal belongings, or use a baby monitor to listen to their private conversations.
  • Be careful of what you say. Stating a fact, such as “Steven stole $600 worth of merchandise,” can subject you to accusations of slander. Do state things in terms of opinion: “We have reason to believe that Steven may have taken the merchandise.” Even if it’s true that Steven stole the merchandise, you could still be sued.
  • Be sure you can prove the reasons for termination. Do terminate for performance or failing to follow company procedures, instead of for theft that could possibly be explained by the employee—however weak the explanation may be.
  • If an employee admits to theft, don’t terminate until you have obtained a written statement in his or her handwriting. If the employee wishes, do allow this to happen in private, to avoid any accusation of coercion.

Legal disclaimer:

The contents of this article are intended for general information only, and should not be relied upon as a substitute for obtaining professional legal advice applicable to your situation.

How the Economy Affects Employer/Employee Relationships

Thursday, September 17th, 2009

going out-of-business on employee screening blogThe number of Americans who are unemployed seems to be stabilizing somewhat, but even those employees who have made it through your company’s toughest times may still be wary, worried, and waiting for their job to be taken away.  With stress at home, unemployed partners, and shrinking household incomes, combined with increased workloads and more on-the-job stress, your staff could be more nervous than ever. Fear leads to unusual or out-of-character behavior. Employers should be aware of changes in their employees—and be willing to try new ways of dealing with old issues.

The continued downturn in the economy can seem like uncharted territory—so just as you drive more cautiously when you don’t know where you’re going, employers should proceed with caution when dealing with employee issues like layoffs and evaluations.

For example, your employees might be more sensitive to criticism. When stresses combine with a feeling that their job could be in jeopardy, even the most even-tempered employee could react uncharacteristically. Employers should take extra time to explain any issues related to performance, suggest ways to improve, and if the problem is not job-threatening, be sure to say so! Never assume your employee knows anything that you don’t directly communicate to them.

During times of stress, employees could become more aggressive about negative evaluations. This isn’t to say that evaluations should be soft-pedaled or toned down to avoid upsetting your team members. Just be sure that negative scores or observations can be backed up with solid evidence, such as incident reports, notes, or other appropriate documentation. Still, employers should prepare for formal challenges from staff members who fear that a poor performance evaluation could lead to losing their job.

Employers should also be cautious about layoffs. A downturn in business can be the sole reason for letting employees go—but that does not preclude an older laid off employee from filing a discrimination case, or an employee whose religious practices differ from yours from hiring an employment lawyer.

So be fair, be sensitive to employee stress, and always keep the lines of communication open with all of your employees. If they are aware of your company’s challenges, feel that they are being treated fairly, and know exactly where they stand, your staff will be more accepting of criticism, poor evaluations, and even lay offs.

Be sure to check out our Pre-Employment Screening services. Protect your business, increase your peace of mind and lower turnover by hiring smart!

FAQs About FLSA From the US DOL

Thursday, September 10th, 2009

faqs on employee screening blogWhew! That’s a mouthful of acronyms, but it means we have some great information for you. As an employer, you might be facing unprecedented challenges to keep your business running and your employees paid. If you’re furloughing employees, or reducing hours and/or leave, you need to be sure you’re within legal guidelines. The U.S. Department of Labor (DOL) has published a list of Frequently Asked Questions (FAQs) to help employers stay within the guidelines of the Fair Labor Standards Act (FLSA).

Here’s how to handle a few situations you may not have encountered before:

Q: If I’m having trouble meeting payroll, do I still have to pay non-exempt employees on the regular payday?
A: Yes. In general, an employer must pay covered non-exempt employees minimum wage and overtime due on the regularly scheduled payday. Failure to do so is a violation of FLSA.

Q: Is it legal to reduce the wages or number of hours of an hourly employee?
A: The FLSA does not address reduction of hours or wages for non-exempt employees. It does require that they receive at least the Federal minimum wage for all hours worked. It is not a violation of the Act to reduce wages or hours of non-exempt employees.

Q: Am I required to pay an hourly employee for a full day of work if they don’t work a full day, due to lack of work?
A: No. An employer is not required to pay non-exempt employees for hours they do not work.

Q: Can an exempt employee’s salary be reduced during a business slowdown?
A: In general, the reduction of an exempt employee’s salary will cause a loss of exemption; they must then be paid minimum wage and overtime for all hours worked. In some circumstances, reduction in salary may not cause a loss of the exemption. As long as the employer is not attempting to avoid salary basis requirements, the exempt employee’s salary may be reduced. However, deductions to salary may not be made by the employer based on the operating requirements of the business. This is a complicated question, and full details can be found here.

Q: Can an employer reduce an exempt employee’s leave?
A: Yes. Employers can substitute or reduce an exempt employee’s accrued leave for the time an employee is absent from work, even if the absence is directed by the employer because of a lack of work.

Q: Can a salaried, exempt employee volunteer to take unpaid leave due to a lack of work?
A: Yes, if the employer asks for volunteers to take time off due to insufficient work, and an employee volunteers to take a day or days off for personal reasons (other than disability) the employee’s salary may be reduced for one or more full days of missed work. The employee’s decision must be completely voluntary.

Labor laws can be tricky. This list is meant to be an overview, not a legal guide. For full regulations, please see the Wage and Hour Division website . Remember to check your state’s labor laws as well. Always seek professional legal advice whenever you are in doubt about employment law.