Check out this month's issue for news and updates related to: Criminal Background Checks; Harassment Triage; Leave as a Reasonable Accommodation; and Join Us for
FiveL's 12th Annual "
Employment Law, Legislative & Regulatory Update
" seminar, April 27th!
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If you conduct background checks as a part of your selection procedures, you are probably familiar with the phrase "Ban the Box." It is a legal trend that prohibits employers from inquiring about an applicant's criminal background until usually some point at or beyond the first interview. The phrase came from banning the question and check box from employment applications that asked about the applicant's criminal history. Today, the National Employment Law Project (NELP)
reports
there are at least ten states and 17 local jurisdictions that have enacted a ban the box law that applies to private sector employers.
But don't stop there. Remember that even if you comply with your state and local jurisdictions' ban the box laws, how you use the information once obtained must still meet the EEOC's litmus test of being "job related and consistent with business necessity." For example, consider: (1) the nature of the crime; (2) the amount of time that has passed since the criminal conduct occurred; and (3) the nature of the job for which the person is applying. One employer
just learned
this lesson to the tune of
$3.7M
.
Click here
for the EEOC's seven tips for using criminal history records in your selection process.
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A SHRMStore
Great 8 Best-Seller
7 Years in a Row
!
Thank YOU!
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Upcoming Events, Seminars & Presentations
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FiveL Company's 12th Annual
April 27, 2018
"
Employment Law, Legislative & Regulatory Update
"
Full-day seminar. Columbia, MD
- Pre-approved 6.5 HRCI/SHRM credits
- Seating already more than 50% sold
- Click here for more info and to register
$179 pp includes breakfast, lunch, free parking and participant booklets.
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Harassment Triage: Is One Type Worse Than Others?
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The #MeToo movement has brought issues to light that may yield positive results. In the summer of 2016, the
EEOC urged
employers to "reboot" their harassment training programs and employees to exercise bystander intervention. Yet, here we are nearly two years later hearing stories from employees who saw or heard about unlawful harassment in the workplace but did nothing. In response, state legislatures are moving to pass laws that make confidentiality and/or arbitration agreements unenforceable where they would preclude an employee from filing a charge or claim or disclosing certain information related to sexual harassment.
But, is sexual harassment any more egregious or harmful to the victim than any other form of unlawful harassment? Is the person who is subjected to finding a noose strung up on his or her locker, computer or desk any less victimized than the employee who is subjected to sexual harassment? I surmise our Congressional, state and local legislators would say, "Yes," since pending legislation bars certain agreements or policies as they relate to sexual but, no other forms of unlawful harassment. And, consider this. The EEOC's 2017 charge statistics revealed that sex discrimination charges were in 4th place behind those filed based on (1) retaliation; (2) race; and (3) disability.
Keep your eye on pending legislation
. Congress is considering
H.R. 4734
, "Ending Forced Arbitration of Sexual Harassment Act." I think the title speaks for itself. Also, watch the states in which you do business. Several have already passed or are currently considering related legislation. For example, Maryland
SB 1010
, "Disclosing Sexual Harassment in the Workplace Act" has been unanimously passed out of committees in both Houses. If enacted, the new law would make, "a provision in an employment contract, policy or agreement that waives any substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment...null and void..." Interesting, the bill originally included claims of sexual discrimination but, the latter was struck from the bill.
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SCOTUS Declines to Answer: How Much Leave is a Reasonable Accommodation?
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On April 2nd the Supreme Court of the United States
declined
the petition to review
a case
in which an employee sued his former employer under the Americans with Disabilities Act (ADA)
.The employee had taken a 12-week medical leave under the Family Medical Leave Act (“FMLA”) to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off work for another two or three months.
He asked his employer to continue his medical leave, but by then he had exhausted his FMLA entitlement. The company denied his request and terminated his employment but invited him to reapply when he was medically cleared to work. About three months later, the former employee's doctor lifted all restrictions and cleared him to resume work, but he did not reapply. Instead, he sued his former employer alleging that it had discriminated against him in violation of the ADA.
The 7th US Circuit Court of Appeals (covering IL, IN, WI) found in favor of the employer. It held, "The ADA is an anti-discrimination statute, not a medical leave entitlement...the term 'reasonable accommodation' is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA...A multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA."
So now what
? We still have no definitive answer as to how much leave is a reasonable accommodation under the ADA. As the 7th Circuit points out, the US EEOC does not agree with this court. The EEOC has
considered
leave of up to one year to be a reasonable accommodation in some cases. However, the EEOC also takes
the position
that, "...
indefinite leave -- meaning that an employee cannot say whether or when she will be able to return to work at all - will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation."
So, when faced with this question for one of your employees, proceed with caution and consult your company's legal counsel for guidance.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any particular matter.
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