The EEOC Experiences yet Another Background Check Court Loss

As we previously reported, the EEOC’s targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employer’s background checks, because the EEOC’s expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOC’s background check lawsuit against Kaplan Higher Education failed last year before the US Court of Appeals for the Sixth Circuit. In fact, the same EEOC expert testified in that case as in the Freeman case, and the Sixth Circuit questioned his expertise and methodology. 

These court losses are important, because to prevail on a claim that an employer’s background check process or decisions are racially discriminatory, the EEOC must show a statistically significant disproportionate impact on applicants or employees of color. So far, the EEOC is struggling to make this showing.  Nevertheless, the EEOC is unlikely to retreat from its background check lawsuits. The EEOC identified eliminating barriers in recruitment and hiring as its top priority in its latest strategic enforcement plan. Consistent with this priority, the EEOC has additional background check cases pending against BMW Manufacturing Company and Dollar General. 

While employers might find some relief in the EEOC’s recent losses, they should continue to take care when conducting and making decisions based on background checks. As discussed in a prior post, there are procedural requirements to be followed to conduct background checks and discrimination law considerations to bear in mind. Employers should avoid automatic employment exclusions based on background check data, and instead conduct an individualized assessment that considers the conviction data and any actual, current risks posed based on the nature and needs of the position at issue. Additionally, employers should be mindful of state law requirements, as many states, including Minnesota, have laws regulating background checks and the timing of when an employer may make criminal history inquiries.

Under Final FMLA Rule, Rights for Same-Sex Spouses Will Be Based On "Place of Celebration"

On February 23, 2015, the Department of Labor (“DOL”) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

The changes to the rules are the result of last year’s U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (“DOMA”) which defined “marriage” for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined “marriage” for FMLA purposes as male-female. With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence. That is because Section 2 of DOMA, which was not addressed in the Windsor decision, says that a state does not have to recognize a same-sex marriage, even if it was valid in the state where it was entered.

Under the new rule, “place of residence” will be replaced with “place of celebration” to determine the validity of a marriage for FMLA purposes. In other words, if a same-sex couple was validly married in any state, they are spouses for FMLA purposes regardless of where they live. If same-sex couples are married outside of the United States, they will be considered spouses for FMLA purposes as long as the marriage:  1) was valid where entered, and 2) would be considered valid in at least one state.

The Supreme Court announced in January of this year that it has decided to review the right of states to ban same-sex marriage. As a result, the changes to the rule may prove to be unnecessary if the Supreme Court overrules Section 2 of DOMA and rules that a valid same-sex marriage must be recognized by other states.

Government Shutdown Leads to Fewer EEOC Charges, But Retaliation Claims Continue to Lead the Pack

The EEOC released its FY2014 (Oct. 1, 2013 – Sept. 30, 2014) enforcement statistics last week.

Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.

As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to revisit your anti-retaliation policies and other prevention measures.The EEOC reported the FY2014 breakdown of charge allegations nationwide as follows:

• Retaliation under all statutes: 37,955 (42.8% of all charges filed)
• Race (including racial harassment): 31,073 (35%)
• Sex (including pregnancy and sexual harassment): 26,027 (29.3%)
• Disability: 25,369 (28.6%)
• Age: 20,588 (23.2%)
• National Origin: 9,579 (10.8%)
• Religion: 3,549 (4.0%)
• Color: 2,756 (3.1%)
• Equal Pay Act: 938 (1.1%)
• Genetic Information Non-Discrimination Act: 333 (0.4%)

Minnesota bucked the national trend of declining charge numbers with a near-level total of 981 total charges compared with 982 in FY2013.  State charge allegations generally followed the national trend, but with higher rates of retaliation, disability, and age charges.

• Retaliation under all statutes: 567 (57.8% of charges filed in Minnesota)
• Disability: 376 (38.3%)
• Race (including racial harassment): 360 (36.7%)
• Sex (including pregnancy and sexual harassment): 260 (26.5%)
• Age: 266 (27.1%)
• National Origin: 122 (12.4%)
• Religion: 41 (3.8%)
• Color: 37 (3.8%)
• Equal Pay Act: 17 (1.7%)
• Genetic Information Non-Discrimination Act: 6 (0.6%)

Minnesota WESA – Round II: Are Paid Sick Leave and Expanded Family Leave Protections on the Way?

In conversations with clients and employment law colleagues, I have dubbed 2014 “the year of the employee handbook.” In the wake of the passage last year of the Minnesota Women’s Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.

If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those handbooks and update their policies and practices all over again. Earlier this week, several DFL Senators introduced a proposed bill (SF 481) that would require all Minnesota employers to provide paid sick and “safe” time off benefits to most employees. In addition, the proposed bill would expand the pregnancy accommodation and parental leave provisions enacted as part of WESA last year.

Paid Sick and Safety Leave?

Starting with sick and “safe” leave, neither federal or Minnesota law currently require Minnesota employers to offer paid time off in the form of vacation, sick time, or PTO (e.g. combined sick and vacation time) benefits to employees. There is, however, a growing movement throughout the U.S. to increase employee pay and job security, including through the provision of mandated paid sick time. Currently, only a handful of states and a small number of municipalities mandate paid sick time, but grass roots organizers want this to change.

This pay and benefits battle is now playing out on the Minnesota stage. While it is not clear that SF 481 will successfully pass through Minnesota’s Republican-controlled House of Representatives, the bill, if enacted, would have a significant impact on employers. It would apply to all employers, regardless of size, and impose the following requirements:

• All Minnesota employers would be required to provide paid sick and “safe” time off to any employee who has performed at least 680 hours of work or worked for the employer for at least 17 weeks.
• The new law would require the accrual of at least one hour of sick time for every 30 hours worked. The total accrued time would be capped at (1) 40 hours per calendar year for employers with fewer than 21 employees; and (2) 72 hours per calendar year for employers with 21 or more employees. Paid sick and safe time would begin accruing at the start of employment, but could not be used until after 90 days of employment. Employees, regardless of non-exempt or exempt status, would have to be allowed to use accrued time off in one hour increments.
• Sick time could be used by the employee for (1) his or her own illness or medical appointments; (2) to care for an eligible sick family member; (3) when necessary due to domestic abuse, sexual assault, or stalking of the employee or an eligible family member; or (4) when the employer shuts down due to weather or an emergency.
• If an employee’s absence lasted at least three consecutive days, an employer could request certain “reasonable documentation” to verify the need for the absence.  In addition, the employer may require seven days’ advance notice for foreseeable time off.
• Employers with existing paid time off policies could continue those policies as long as the policies satisfied the minimum requirements of the new law.
• Employees taking paid sick or “safe” leave would have job protection and anti-retaliation rights.
• An employer would be prohibited from requiring an employee using paid sick or safe time benefits to seek or locate a replacement worker to cover the employee’s hours.
• An employer would be required to provide notice of available paid sick and safe time benefits in its employee handbook.

Pregnancy Accommodation and Parent Leave Expansions?

The new proposed bill would also revisit and expand pregnancy and parental leave protections put in place last year as part of WESA. Under WESA, employers with at least 21 employees are obligated to grant reasonable accommodations to eligible pregnant employees. In addition, employers of this size must grant eligible employees up to 12 weeks of parental leave for prenatal care, pregnancy-related health conditions, or the birth or adoption of a child. SF 481 would expand these WESA protections to employers of all sizes, requiring a Minnesota employer with one or more employees to comply with WESA’s pregnancy accommodation and parental leave provisions.

What to Do?

As noted above, it remains to be seen whether SF 481 will gain any traction in the Minnesota legislature. The bill does, however, reportedly have some bipartisan support. Employers should be sure to stay tuned and, if inclined, can contact members of the Minnesota state legislature to voice their opinion on SF 481. Here at GPM, we will be keeping our eyes open and our ears to the ground, and we will update you if SF 481 ends up becoming new law.

Top Five Employer To-Do Items in Today’s Union Organizing Environment

Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.

As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that many, many employers are more than a little surprised to learn that a union representation petition has been filed with the NLRB.

As such, it makes business sense to invest at least some resources in prevention, assessment, and planning around union organizing issues. The new election rules and the new email ruling, among other actions of the NLRB, make this more urgently true than perhaps ever before.

As you think and plan, here are my TOP FIVE TO-DO priorities for employers:

1. Position on Union Organizing. Develop and articulate (for internal management use) a position statement on unions and union organizing in your workforce. Take into careful consideration all your constituencies and the various interests of your business or organization. Your position should be well-tailored, with an understanding of what is lawful in this arena, so your managers have a clear understanding about legal do's and don'ts.
2. Management Training. Train management on the labor law, union organizing, and collective bargaining rights and duties.
3. Assess Your Employee Relationships. Assess the relationship between management and your workforce. Take action to build or improve communications and trust in labor relations. Trust goes a long way in disincentivizing organizing activity.
4. Review & Revise Policies. Review employment policies and procedures for labor law compliance and make any necessary or advisable changes before there is organizing. At that point, it will be too late under the law to make changes.
5. Design a Communications Plan. Prepare a plan for how (by whom and using what means) you will communicate with your employees about union organizing and related issues should the need arise.

The latest breaking news on Jan. 28 is that the Senate labor committee announced in a press release that U.S. Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.), chairman of the committee, have introduced the NLRB Reform Act. The purpose of the proposed Act is to to turn the National Labor Relations Board (NLRB) from an advocate to an umpire and to keep the NLRB general counsel from operating as an activist for one side or the other.

The press release quotes McConnell as saying, “The NLRB’s politically motivated decisions and controversial regulations threaten the jobs of hardworking Americans who just want to provide for their families. So it’s time to restore balance and bipartisanship. The NLRB Reform Act would help turn the board’s focus from ideological crusades that catch workers in the crossfire to the kind of common-sense, bipartisan solutions workers deserve.”  (See the full press release here.)

Any such reform, however, is likely to be vetoed by President Obama and, in any event, is undoubtedly a long way off. Meanwhile, employers will have to continue to deal with the NLRB and the union organizing environment as it stands today. 

Toward that end, members of our labor law team this week presented a “Breakfast Briefing” and webinar on the topic “Getting Union Organized for the New Year.” (To download a free version, click here.) A primary theme was that employers at risk of organizing should proactively prepare. As my colleague included in wrote in her Dec. 30 post on NLRB's the new “Quickie” Election Rules: 

So what's the main take-away for employers? BE PREPARED! After implementation of the new rule, it is more important than ever to prepare for possible organizing activity and to respond immediately once a petition is filed. The new rule gives employers a very short window to gather employee information, formulate a position, raise issues, and communicate with employees.

The labor law is complex, nuanced, and ever-changing (or so, at least, it seems to most of our clients!). Our labor law team is available to help navigate the challenges you face in this arena.

Two-Factor Authentication Is a Necessity for Companies

It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.

The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to reset the account's password. Alternatively, the potential hacker can launch a “brute force attack” in which a computer automatically runs thousands of common passwords or letter combinations through the login screen to try to discover the correct password. Some have speculated that the infamous celebrity nude photo iCloud hack from last fall was perpetrated in this manner.

One of the easiest things a company can do to reduce the risk of an embarrassing hack is to set up two-factor authentication on their social media accounts. Two-factor authentication essentially provides a double layer of password protection. It commonly involves the social media provider sending an automated text message or email with a temporary, secondary login code to a pre-set recipient when someone tries to access the user’s account from an unknown computer or mobile device. This way, a hacker trying to gain access to the account password will be prevented from doing so without the second code. In addition, an added benefit is that the company will be alerted to any attempt to break-in to its account and can take additional protective steps.

Setting up two-factor authentication is not hard, and set-up information is readily available online through a search of  the social media provider’s name and the phrase “two-factor authentication.” With Facebook, for example, two-factor authentication can be turned on by going into Settings – then Security Settings – and then Login Approvals. For Twitter, it’s under Account Settings – then Security and Privacy – and then Login Verification.

A company should also keep a tight watch over which employees have access to its social media passwords while making sure that it has an access back-up  plan in place if the person with the “keys to the system” is unavailable.

Ashley Bennett Ewald is a Principal at Gray Plant Mooty and is this week's guest blogger. 

Minnesota’s New Expungement Law: A Second Step to a Second Chance for Some Potential Employees?

A new year may bring new employment chances for Minnesotans with criminal records. Minnesota’s new “Second Chance” law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of one’s criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged. Minnesota law previously did not reach those other records, which may include records of criminal law agencies and prosecutors’ offices, among other agencies and offices. A more detailed discussion of this law and its purpose may be found here. One of the primary motivations for the enactment of this revised law was to increase the employability of persons with minor or remote criminal histories.

The enactment of Minnesota’s Second Chance law was in essence the second step of the Minnesota legislature in the last two years towards creating second chances for employment by persons with criminal records.  One year ago, Minnesota’s “Ban the Box” legislation become effective. The Ban the Box law places certain restrictions on the ability of employers to seek the disclosure of criminal records from job applicants. In general, Minnesota employers may not lawfully ask job applicants to disclose their criminal history at the application stage. Employers are allowed to seek that information once the applicant has been accepted for a job interview or given a conditional job offer (if interviews are not conducted). Even though Minnesota has provided guidance to employers on the Ban the Box law, employers have still been encountering some difficulties in complying with that law during its first year. The purpose behind Minnesota’s Ban the Box law is similar to the concerns that led to the enactment of the Second Chance expungement law. 

Minnesota was the third state to enact a Ban the Box law and there are now 13 states with similar laws, in addition to the enactment of such laws by several cities and counties throughout the country. In addition to the various Ban the Box state laws, the EEOC issued a guidance three years ago requiring employers to perform an individual, case-by-case analysis before rejecting a job applicant on criminal history. The EEOC has been active in enforcing that guidance. 

Such “second chance” laws may also actually provide benefits to employers by expanding the pool of possible job applicants and, ultimately, new employees. In any event, employers need to be aware that the landscape is shifting significantly regarding the ability to seek–and ultimately obtain–broad information regarding the criminal history of job applicants.