The Equal Employment Opportunity Commission (EEOC) recently published a final rule defining when an employment practice is a “reasonable factor other than age.” The new rule is important because it explains how an employer can defend itself from a complaint under the Age Discrimination in Employment Act (ADEA) that a seemingly neutral employment practice had an adverse impact on older workers. Vigilant submitted comments on behalf of our members when the EEOC proposed two years ago to update the rule in light of U.S. Supreme Court decisions. The EEOC accepted feedback in some areas but stuck to its original position in others (77 Fed Reg 19080, March 30, 2012).
 
If employees complain that your employment decisions have a disproportionately negative effect on workers 40 or older, the EEOC will evaluate whether the factors you used are “objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” Translation: Before implementing a reduction in force or a new performance assessment tool, you would be wise to use objective standards and evaluate the effect of your proposed approach on your older workers. The agency backed off from its original proposal that you must select the option that has the least negative effect by age, but your decision must still be reasonable. The agency looks with suspicion on subjective factors such as flexibility, creativity, and willingness to learn, and prefers that you limit supervisors’ discretion and provide objective standards and instruction in measuring employees’ performance. For more information, see the agency’s Q&A, or the rule itself, and contact your Vigilant staff representative with any questions about how it may affect your organization.

The federal Equal Employment Opportunity Commission (EEOC) has issued updated guidance for employers on the use of an applicant’s criminal history, including arrests and convictions, when making employment decisions. The EEOC has long maintained the position that arrest records, unlike criminal convictions, are not reliable indicators of criminal conduct, but an employer may take into account evidence of behavior that disqualifies an individual from a particular position. The agency is concerned that excluding applicants based on a history of arrests or criminal convictions will disproportionately screen out applicants on the basis of race and national origin. Therefore a policy or practice that automatically excludes all applicants with a criminal record is a violation of Title VII, the federal law prohibiting discrimination in the workplace (unless such a screen is otherwise required by federal law). However, if screening out an individual with a criminal history is “job related and consistent with business necessity” then it is not a violation of Title VII.
 
Under this new guidance, the agency provides an explanation of how it determines whether a hiring standard is “job related and consistent with business necessity” and provides examples. It also notes that there are two circumstances in which an employer meets the “job related and consistent with business necessity” standard: the employer validates the criminal conduct exclusion in light of the EEOC’s Uniform Guidelines on Employee Selection Procedures (29 CFR Part 1607); or it makes an individualized assessment of any individual screened out on the basis of past criminal conduct, considering at least the nature of the crime, the time elapsed, and the nature of the job. Once you determine that someone should be screened out on the basis of a criminal conviction, the EEOC expects you to give the individual an opportunity to explain why they shouldn’t be excluded—for example, by providing evidence of rehabilitation.

The District of Columbia Circuit Court of Appeals today issued an order putting the National Labor Relations Board’s new posting requirement on indefinite hold while it considers an appeal of a lower court’s ruling (National Association of Manufacturers v. NLRB (order granting motion for emergency injunction), DC Cir, April 17, 2012). The Board’s posting requirement had been scheduled to be effective on April 30, 2012. 

The decision that is being appealed is a ruling by a federal district court in the District of Columbia that upheld the Board’s right to require employers to display a poster explaining workers’ rights under the National Labor Relations Act (NLRA) (National Association of Manufacturers v. NLRB, D DC, March 2, 2012). The D.C. appeals court acted swiftly today because on April 13, a federal district court in South Carolina ruled that the Board lacks the authority to require employers to display the poster, creating a split in the federal courts (U.S. Chamber of Commerce v. NLRB, D SC, April 13, 2012). The South Carolina court hasn’t yet issued orders that will implement its ruling, but today the Board announced it won’t enforce the posting requirement until the issue is resolved by the D.C. Circuit Court of Appeals. Today’s order means that the poster will be on hold until late 2012 at the earliest, since the D.C. Circuit Court of Appeals won’t have an opportunity to hear oral arguments on the appeal until September 2012.

A federal district court in South Carolina has ruled that the National Labor Relations Board lacks the authority to require employers to display a poster explaining workers’ rights under the National Labor Relations Act (NLRA) (U.S. Chamber of Commerce v. NLRB, D SC, April, 2012). This decision contradicts a ruling last month by a federal district court in the District of Columbia (National Association of Manufacturers v. NLRB, D DC, March 2012). That case is on appeal, but it remains to be seen how the latest court ruling will affect employers. The South Carolina court hasn’t yet issued orders that will implement its ruling, and the Board so far has said it is reviewing the case and has declined to comment. The Board’s posting requirement is scheduled to be effective on April 30, 2012. Vigilant will inform members when specific guidance is available.

Tips: Federal contractors should keep in mind that neither of these court rulings affects the U.S. Department of Labor (DOL)’s mandate that certain contractors display an NLRA rights poster from the DOL. If your organization holds federal contracts or subcontracts resulting from solicitations issued on or after June 21, 2010, then you may need to display the DOL’s NLRA rights poster. The DOL’s rule applies to prime contractors at or above the simplified acquisition threshold (originally $100,000 but increased to $150,000 effective October 1, 2010), as well as subcontracts all the way down the chain from the covered prime contract that are worth more than $10,000.     

Recent news articles about job applicants being asked to give their Facebook user names and passwords to HR for background screening have sparked a public outcry. Two senators have called for a federal investigation, and Facebook itself has stated that the practice violates privacy expectations of its users and their friends.

Reviewing applicants’ social media pages can be useful, but there is a right way and a wrong way to go about it. Here’s what we recommend:

• Determine the purpose of such a review, because it could affect what sources you check and when. If your purpose is to look for inconsistencies in the resume you received, then you should review professional-history sites such as LinkedIn before an interview. If your purpose is to look for behavioral red flags, then a designated background screener should look at personal sites such as Facebook during the reference/background check stage of your hiring process.
• If you use Facebook or other personal sites as part of your reference/background check, make sure the person who reviews those sites isn’t the individual making the hiring decision. Train the individual to only report job-related concerns. This ensures that the decision cannot be tainted, even inadvertently, by the decision-maker learning about a protected status such as family medical history.
• Instead of requiring applicants to supply their passwords or log onto Facebook through a company computer, a less intrusive approach is for you to require them to temporarily accept a “friend” request from the designated individual who does your background screening. You should specify the length of time that you need for the screening process (e.g., one week), and tell the applicant they are free to unfriend your background screener after the specified period.

If you’re unsure what types of information you’re allowed to take into account when making your hiring decision, talk with your Vigilant staff representative, or see our Legal Guide, “Look for Red Flags in the Hiring Process” (994).

Recently an article from Bloomberg Businessweek was brought to our attention, entitled “Three Types of People to Fire Immediately.” The authors wrote that if you want to have a culture of innovation in your workplace, you need to get rid of people who play the part of victims (“I don’t get paid enough for this”), nonbelievers (“this will never work”) or know-it-alls (“you don’t understand the business we’re in”). To a certain extent, this is good advice. If an employee consistently sees only problems instead of taking the next step and constructively working toward solutions, it can be a drain on morale, creativity, and ultimately, productivity. One negative person in a group can drag others’ moods down much more dramatically than one positive person pulls others’ moods up. If there is someone on your team who is consistently negative, you should step back and assess whether it is worthwhile to continue the relationship.

But (you knew there would be a “but,” right?), before you follow the authors’ advice, we suggest some additional considerations.

• In certain job positions, being critical of products and processes is actually essential to the job. Examples include quality control, product testing, and regulatory compliance. You don’t want people who are afraid to point out an important flaw that could end up costing the organization in the long run. Also, there are some subjects such as safety and ethics where ideally every person in the organization is encouraged to report concerns. Case in point: a bakery where it was normal for employees to reach around a protective shield into a conveyer assembly to clear out dough. No one questioned the practice, until a woman lost her arm above the elbow (Bimbo Bakeries USA, Cal-OSHA Appeals Board, June 2010).

• People are wired differently, and this can be beneficial if management understands how to harness the strengths of different personalities. Consider the salesperson who never turns in receipts on time. This habit drives the accounting department crazy, while the salesperson feels hounded by meaningless paperwork. Understanding how to communicate based on different personality styles can help you figure out how to move this unproductive and frustrating cycle onto a better track. We offer a training class called “The Personality Factor” that may help—contact your Vigilant staff representative for more information.

• Some complaints are protected by law, even if they feel disruptive and disrespectful to management. For example, a customer service rep stands up in a company meeting and loudly complains that their workload is overwhelming and employees often have to work through their meals and breaks. That complaint is very likely protected under the National Labor Relations Act and under state wage and hour law. You may talk with the employee privately about using a respectful tone and suggesting constructive solutions in the future, but it is highly risky to discipline or terminate someone for this activity.

We’re here to help you work through these issues. Contact your Vigilant staff representative if you have a “problem” employee—we can help you steer clear of legal pitfalls while exploring options for finding a productive solution. Yes, this might mean firing someone…but call us first!

A federal district court recently upheld the National Labor Relations Board’s new rule requiring employers to display a poster informing workers of their rights under the National Labor Relations Act (NLRA). However, the court said the Board went too far when it issued a one-size-fits-all policy that failure to display the poster would be an unfair labor practice and would stop the normal six-month statute of limitations from running. The court ruled that the Board has the authority to make those determinations, but they must be done on a case-by-case basis, with specific findings to support the Board’s reasoning (National Association of Manufacturers v. NLRB, D DC, March 2012).

Tips: The poster must be physically posted by April 30, 2012. Electronic posting is also required, if you normally post employee notices on a company intranet or website. The electronic poster must either be an exact copy, or available through a link that says “Employee Rights under the National Labor Relations Act.” Fortunately, federal contractors who already are displaying the NLRA poster from the U.S. Department of Labor (DOL) can rely on the DOL poster.

If more than 20 percent of your workforce isn’t proficient in English and speaks another language, then you must display the poster in their language. The Board’s website already contains translations into more than 20 languages, but if you don’t see what you need, they will create a translation for you.

A new law provides that full-time National Guard duty (other than training) to respond to a national emergency doesn’t count toward the general five-year maximum allowable leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). This means that if the federal government orders full-time National Guard duty for a domestic homeland security issue, the time off is protected but it isn’t included when calculating whether a veteran has exceeded the usual limit of five years of USERRA leave. This provision was part of the National Defense Authorization Act for Fiscal Year 2012, which was signed by the President on December 31, 2011 (HR 1540, PL 112-81).

Tips: There are a number of types of military leave that don’t count toward the usual five-year limit per veteran per employer. If you believe an individual is close to reaching that limit and are unsure whether you have an obligation to reinstate them, consult your Vigilant staff representative. Also, see our Legal Guide, “Veterans’ Employment Rights Law” (774).

The federal Equal Employment Opportunity Commission (EEOC) has received a great deal of commentary on an informal discussion letter they issued several months ago, which discussed possible discrimination issues involved with requiring a high school diploma as a job requirement. According to the EEOC, requiring a high school diploma as a job requirement may improperly exclude individuals with disabilities, who may have faced difficulty passing high school due to their disability. In order for the diploma requirement to pass the EEOC’s scrutiny, it must be job-related and consistent with business necessity; otherwise its adverse impact on disabled individuals would run afoul of the federal Americans with Disabilities Act (ADA). In response to the comments they’ve received, the EEOC recently issued a clarifying letter to offer further guidance on when employers may require a high school diploma for a particular job position. The EEOC offers several questions and answers, which help flesh out their guidance about when a high school diploma can be required. Primarily the EEOC wants employers to know that requiring a high school diploma for a particular position is okay as long as it relates to the job being performed; arbitrarily requiring a high school diploma when the job doesn’t require that level of education could potentially violate the ADA.

Tips: Anytime you establish a job requirement, you should evaluate to make sure it is job-related and consistent with business necessity. Creating requirements that aren’t truly related to the job being performed creates a risk that the standard will unfairly exclude a category of people based on a protected class (e.g. disability). If you need assistance evaluating your job-related standards, contact your Vigilant staff representative. For general information about the ADA, see our Legal Guide, “At a Glance: Americans with Disabilities Act (ADA)" (6016).

Question: I understand that the U.S. Equal Employment Opportunity Commission (EEOC) believes that medical certification forms may elicit genetic information in violation of the Genetic Information Nondiscrimination Act (GINA). Should we add GINA warnings to our medical certification forms under the federal Family and Medical Leave Act (FMLA) so the health care provider doesn’t collect or send us such information?

Answer: The right procedure to follow depends on the type of medical certification you are using. Here’s a guide:

1. Don’t Ask:  For any kind of medical exam of a worker, you must instruct the health care provider not to collect genetic information, such as family medical history, in order to determine the worker’s ability to do the job.  On our Model Form, “Fitness-for-Duty Report” (1880), we’ve inserted this simple instruction at the top of the form that the health care provider completes.  However, we haven’t gone further by inserting the EEOC’s long-winded GINA safe-harbor warning because our form focuses purely on the job (not the medical condition) and therefore doesn’t seem likely to elicit any kind of genetic information.

2. Don’t Ask or Tell: For medical certification of the employee’s own serious health condition, you should give the EEOC’s safe-harbor warning if the certification seems likely to elicit genetic information such as family medical history. Although we believe the EEOC is being overly cautious when its regulations indicate that FMLA medical certifications may elicit genetic information, the safest approach is to give the warning (telling the health care provider not to request any genetic information from the worker or share it with the company). Here’s the text:  “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” We suggest attaching this warning to the front of the FMLA medical certification form (WH-380-E).

If the employee’s leave is potentially covered by the California Family Rights Act (CFRA), we also recommend that you mark Question #4 on the form (medical facts) as “Optional—Do not complete unless employee consents” and/or write on the cover page, “For leaves covered by the California Family Rights Act (CFRA), please do NOT identify the serious health condition involved unless the employee gives you permission to do so. See 2 CCR 7297.0(a)(2).”

3. Don’t Worry:  For medical certification of a family member’s serious health condition when the employee asks for leave under the FMLA, state leave laws, or company policy, the general prohibition against requesting genetic information doesn’t apply, so there’s nothing to worry about on this score. (See the EEOC’s regulations at 29 CFR 1635.8(b)(3).)

If you have any questions about applying these guidelines, contact your Vigilant staff representative.