Employer Defense Law Blog - What You Need to Know Now

by James S. Frank, Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry 

In a sharp setback for the National Labor Relations Board (the "Board"), a federal district court in Washington, D.C. (the "Court"), struck down the Board's election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes less than a month after a federal appeals court struck down the Board's notice-posting rule that would have required employers to advise employees of their rights under the National Labor Relations Act, and less than two years after the Supreme Court of the United States in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 560 US __ (2010), held that the Board, which is traditionally comprised of five members, must have a quorum of three members to lawfully issue its decisions.

Read the full advisory online

by Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi

The On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an enforcement guidance document titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq." (the "Guidance"), with respect to employers' use of arrest and conviction information in connection with employment decisions.

Disparate Treatment v. Disparate Impact

Although Title VII of the Civil Rights Act of 1964 ("Title VII") does not prohibit employers' use of criminal background checks, the Guidance reaffirms the EEOC's longstanding position that employers may violate Title VII if they use criminal background information improperly. The Guidance, which updates and consolidates existing EEOC guidance documents on the subject that have previously been left unchanged since 1990, focuses on employment discrimination based on race and national origin.

According to the EEOC, there are two ways in which an employer's use of criminal history information may violate Title VII. First, Title VII prohibits employers from engaging in "disparate treatment" discrimination – that is, treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. Second, even where employers apply a criminal record exclusion under a neutral policy (e.g., uniformly excluding applicants based on certain criminal conduct), the exclusion may still operate to disproportionately and unjustifiably keep out people of a particular race or national origin. This is referred to as "disparate impact" discrimination. If the employer does not show that such an exclusion is "job related and consistent with business necessity" for the position in question, the exclusion is unlawful under Title VII.

Read the full advisory online

by Ian Gabriel Nanos

Like it or not, we live in a digital-age, and how people choose to define themselves is often readily showcased on social networking sites such as Facebook.  Given the candid manner many individuals express themselves on their social networking profiles, it's only natural that employers have started to pay attention.  Why wouldn't they? Employers want to pick the right person for the job and that their employees do not disparage the company or act in a manner that threatens workplace security.  But when news spread that a few employers were demanding access to applicants’ on-line profiles, many – including businesses and members of Congress –decried this practice as an unwarranted intrusion of privacy.

Specifically, Facebook stated that this practice "undermines the privacy expectations and the security of both the user and the user's friends," indicating that sharing passwords or granting another individual access would violate Facebook's "Statement of Rights and Responsibilities.”

On Capitol Hill, U.S. Senators Charles Schumer, N.Y., and Richard Blumenthal, CT., wrote a joint letter to the U.S. Department of Justice and to the EEOC, requesting an investigation of the practice.  A bill was also introduced in the House of Representatives aimed at prohibiting the practice.  Other legislation may be in the works at both the federal and state level.  Maryland was the first state to pass legislation banning employers from asking for an employee’s or applicant’s social media site passwords.  Other states may soon follow suit.

Although many users update their privacy settings to limit the content that is publicly available, granting a potential employer access allows them to readily sidestep those controls.  This is cause for concern, but it is not just about privacy.  It is also a question about whether it makes good business sense for an employer.

While employers may gain some benefit from learning additional information that helps guide hiring decisions, employers should weigh those benefits against possible disadvantages.  Clearly, there are circumstances, such as government positions with high-level security concerns, where it may be a "need to know" situation.  In most ordinary cases, however, employers should consider the pitfalls before deciding that Facebook should be part of the applicant review process.

In other words, employers should be cautious about what a social media search might reveal.  Many jurisdictions, including New York, have already enacted statutes that prohibit an employer from making decisions in reliance on certain lawful recreational activities or associations outside of work.  

By looking at an online profile, an employer might learn information regarding an applicant or employee’s protected classification that would not be otherwise revealed on a resume.  Thereafter, the employer could be charged with a discriminatory failure to hire claim based on that newly acquired information.  Similarly, an employer may unwittingly take on a duty that had not previously existed.  For example, the employer may become privy to information suggesting that an employee is unstable and, based on that knowledge, the employer could be charged with having acted unreasonably by subsequently entrusting that individual with certain responsibility. 

Moreover, an employer may face liability if it takes adverse action after happening upon conversations that could be considered union activities or “concerted activities” under the National Labor Relations Act.  The National Labor Relations Board has certainly said a lot about that recently. 

Finally, employers may risk losing out on top-talent that may be discouraged by the policy.

The bottom line is that, in this digital age, employers need to consider the impact of social media on workforce issues.  Employers should review their workforce needs and address social media issues in their internal hiring policies and practices as well as in their handbooks and other policies disseminated to employees and applicants.  This goes beyond merely informing employees that their internet use may be monitored, because a basic technology policy that glosses over social media issues may end up causing problems in the long-run.  The same can be said for an inflexible, uniform policy, because a single policy may not be right for every situation. 

by Peter M. Panken and Jennifer A. Goldman

Gary Ehrhard, an air traffic controller for the Federal Aviation Administration asked for Family Medical Leave Act (“FMLA”) leave to care for his children, 8 and 10 years old. Because they did not suffer from a serious health condition, he was denied FMLA leave, and he claimed that he was later retaliated against for asking for the time off.  He discovered that female air traffic controllers were allowed the kind of leave he sought. He sued the Department of Transportation (”DOT”) for sex discrimination and retaliation for complaining about alleged sex discrimination.  On March 28, 2012, the U.S. District Court for the Eastern District of New York ruled that even though there was no viable FMLA claim, the sex discrimination and retaliation claims had to go to a jury trial because these claims were broader than the FMLA request.  Ehrhard v. LaHood.

Ehrhard claimed that the DOT permitted similarly-situated female air traffic controllers to use employer-provided Leave Without Pay (“LWOP”) in an “open-ended special arrangement,” and that such arrangements were not available to Ehrhard because of his sex.  The DOT contended that the gender discrimination claim should be dismissed because Ehrhard was not entitled to FMLA leave, since his children did not have serious health conditions.  Ehrhard requested the leave because his wife was unavailable that day to care for his children.  The court ruled, however, that Ehrhard’s sex discrimination claim was “broader than an FMLA request” and that “the requirements of the FMLA are not dispositive of this claim.”  The court concluded that Ehrhard raised genuine issues of fact as to whether his request for child care was treated differently than requests by female air traffic controllers.

The DOT conceded that female employees were permitted to submit leave requests under a special procedure but Ehrhard was not, but the DOT argued that the female air traffic controllers were not similarly situated to Ehrhard, because they were previously part-time employees.  The Court reasoned that “[t]he law does not require the employees to be similarly situated in all respects, but rather requires that they be similarly situated in all material respects.”  Accordingly, the court held the jury must decide whether female employees were “similarly situated” and treated more favorably regarding the granting of child care leave.

Ehrhard also claimed that the DOT retaliated against him after he complained that the denial of his leave requests was based on his gender.   The court found that Ehrhard produced sufficient evidence that the DOT took adverse action against him after he complained.  While the DOT argued that Ehrhard’s complaints were not reasonable, good-faith complaints about suspected sex discrimination, the court ruled that the reasonableness of Ehrhard’s belief of sex discrimination as it pertained to retaliation would have to be decided by a jury. 

It may be good practice to help employees who need special privileges, but employers should be aware that a good deed may result in litigation if the favors are not bestowed without regard to protected class status such as sex, or race, or religion or national origin.  To minimize risk and exposure from claims of illegal discrimination, employers who provide leaves of absences for child care must ensure that the leaves are available to all employees regardless of sex.  As a best practice, employers should also ensure that their child care leave of absences policies are drafted in a gender-neutral manner.  

By Carrie Corcoran

(Revised as of 4/12/12)

On March 28, 2012, legislation was introduced before the New York City Council (“NYC Council”) that, if enacted, will extend employment discrimination protections to unemployed job seekers.  In a climate of persistently high unemployment rates and many discouraged – and disgruntled – jobless persons, it should come as no surprise that, along with New York City, legislatures across the nation are considering drastic measures.  Some of these laws have even passed. 

A year ago, New Jersey was the first state out of the gate when it enacted legislation to protect unemployed job seekers.  New Jersey's legislation, however, is much narrower than many subsequent efforts by state and local governments to protect the jobless.  Specifically, New Jersey only prohibits job advertisements that exclude unemployed candidates.  The legislation explicitly precludes a private cause of action for spurned job hunters.  Rather, it provides for fines ranging from $1,000 for the first violation, $5,000 for the second violation, and $10,000 for additional violations.

Contrast the District of Columbia’s new legislation, signed by the mayor March 19, 2012 and currently undergoing its (usually pro forma) review by Congress.  This law prohibits an employers or employment agencies  from not only disqualifying unemployed persons in want ads, but also from failing or refusing to “consider” or “hire[] an individual as an employee because of the individual’s status as unemployed.”  The legislation expressly permits employers and employment agencies to “examin[e] the reasons underlying an individual’s status as unemployed” when ”making employment decisions,” including “assessing an individual’s ability to perform a job.”  Like the New Jersey law, the legislation forecloses a private cause of action and, instead, empowers the District of Columbia Office of Human Rights to fine offenders.  

The legislation introduced before the NYC Council more closely resembles the District of Columbia’s legislation than it does New Jersey’s.  The proposed law seeks to broadly ban employers and employment agencies from basing employment decisions “on the unemployment status of the applicant or employee.”  The scope of the legislation, however, is somewhat limited by an exemption that permits employers to “request[] or us[e] unemployment status information that is substantially job related” for a “bona fide reason.”  The proposed law also allows employers to “inquir[e] into the circumstances surrounding an applicant’s or employee’s previous termination or demotion, including whether such adverse action was based on cause.”  Additionally, the legislation would proscribe job ads that exclude unemployed applicants.  Under the New York City Human Rights Law, of which this proposed legislation is part, employees benefit from an expansive, employee-favorable interpretation, a three-year statute of limitations, and the full array of damages, including punitive damages.  Thus, unlike the District of Columbia and New Jersey laws, disappointed job seekers have a private cause of action.

With respect to prohibiting employers from issuing advertisements that exclude jobless applicants, these provisions are less controversial and, to whatever extent this practice exists, inadvisable.  Besides fairness issues and potential bad press, this practice may also lead to litigation under existing anti-discrimination laws.  The NYC Council’s press release announcing the legislation highlighted the potential disproportionate impact on minorities due to the higher rates of unemployment among African Americans and Hispanics.  At an Equal Employment Opportunity Commission meeting last year that explored the treatment of unemployed job seekers, a Department of Labor representative also reviewed statistics and concluded that such exclusions may cause “disparate impacts among racial minorities, among workers with disabilities, and among older workers.” 

But transforming unemployment status into a protected category is a horse of a different color.  This blog has previously commented on the nettlesome nature of a similar proposal in the context of President Obama’s American Jobs Act.  Although a job applicant's race or gender (for example) bears no rational connection to an applicant's qualifications for a particular job, an applicant's job history – including its continuity and the reasons for any gaps – may relate to an applicant's relative merit for a particular position.  A job seeker who has been unable to obtain, or retain, employment due to an inability to show up to work (or interviews) on time is justifiably a less attractive candidate than someone who, all other things being equal, has no punctuality issues.  The explanation that “I decided not to hire the candidate who was fired for persistent tardiness” might tread uncomfortably close to unlawfully considering an individual’s status as unemployed.  Notably, the New York City law would permit employers to inquire about the employee’s termination for tardiness.  But, in litigation, the employer would have to undergo the burden of proving that punctuality was “substantially job related” and that it had a “bona fide reason” for using the information regarding the prior termination in making its decision.    

Although legislators are rightly concerned with assisting jobless persons and reducing barriers to their re-entry into the workforce, the unintended consequence of these laws may be to increase the cost of doing business for employers due to an influx of new lawsuits by rejected applicants.  This result might increase the employment opportunities for labor and employment attorneys, but not the millions of unemployed.