Tuesday, July 30, 2013

EEOC Taking Flak on Criminal Background Check Agenda

Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOC’s guidance related to employers’ use of criminal background checks, and calls the EEOC’s position “misguided” and a “gross federal overreach.” It accuses the EEOC of attempting to expand Title VII’s protected classes to persons with conviction records.
The letter was sent from West Virginia’s attorney general and signed by the attorneys general of Montana, Alabama, Nebraska, Colorado, South Carolina, Georgia, Utah and Kansas. It was precipitated by the lawsuits referred to in our June 19 post.
In the suit against BMW, the EEOC alleges that background checks done on current employees of a contractor disproportionately screened out black workers at a South Carolina facility. Many of the employees who lost their jobs had worked at the BMW facility for several years. The Dollar General case involves two black applicants.  One of the applicants had a conditional job offer rescinded after a six year old drug conviction was discovered.  The other applicant was rejected after an erroneous conviction was reported.
The BMW and Dollar General lawsuits emphasize the need for employers to avoid the temptation of adopting general policies dictating how to address applicants and employees with criminal histories. Rather than automatically consider ex-offenders as unsuitable for employment, employers need to perform an “individualized assessment” that considers the nature and gravity of the offense or conduct, the time that has passed since the offense occurred or a sentence was served, and the nature of the job. Despite the outcries from these state officials and many employers, it is unlikely that the EEOC will retreat from its position that blanket no-felon policies are unlawfully discriminatory. 

Thursday, July 25, 2013

Week in Review

As clearly evidenced by the flood of social media attention paid to the birth of the United Kingdom's royal baby this week, technology not only disseminates information faster but also makes it hard to avoid. Also reported this week, users are downloading anti-distraction apps to block social media because they cannot stop themselves from wasting time, and companies are developing new gesture recognition technology that eliminates both keyboards and touch screens. The 9th Circuit Court of Appeals also contributed to the growth of information filters this week when it held that a service that records television and then automatically deletes the advertisements did not violate copyright laws. The Court found that the ability to record and skip commercials constituted “fair use.”
Technology and the Workplace
Apps Block Social Media Because Users Can't Stop Themselves (NPR)
Big Data Analysis Adds to Guest Worker Debate (NYTimes)
World leaders are on Twitter, but they’re not using it (WashPost)
The Myth Of Online Backup (Forbes)
Are Video Interviews the Future of Hiring? (Mashable)

Technology and the Law
Dish ad-skipping service doesn’t violate copyrights, appeals court rules (
Facebook "tagging" adds a new wrinkle to social media discovery (
Employer Handbook)
Is There a Reasonable Expectation of Privacy In Your Tweets? (
Delaware Employment Blog)
Judge Orders Google to Unmask Blogger (
How Obamacare's 'privacy nightmare' database really works (

There's an App for That
No Keyboard, and Now No Touch Screen Either (
18 Mac Apps Worth Paying For (Mashable)
Flipboard's user-created magazines now viewable via Web browsers (LATimes)
Samsung's own developer conference: A move to rely less on Google? (
The App of God (Atlantic)

Wednesday, July 24, 2013

Don't Forget That EEO-1

The EEOC’s Notification Letters have been sent and the lines are now open to complete the EEO-1 survey. Reports must be submitted by the September 30, 2013 deadline.

The EEO-1 is the form that the EEOC uses to collect workforce data from employers with more than 100 employees. Federal government contractors and first-tier subcontractors who have 50 or more employees and a contract or subcontract of $50,000 or more must also report. As the EEOC’s website makes clear, “employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary.” Qualifying employers must submit an EEO-1 report, which provides employment data by race/ethnicity, gender, and job categories. The information is used for enforcement and research. The information is also shared with other federal agencies, but only aggregate data is available to the public.

The EEO-1 seems to be an easy form for some employers to forget. A small business that grows quickly may not even realize that it is required to file an EEO-1 when it passes the 100 employee mark. An employer that does not do business with the government may feel it has no incentive to bother with the paperwork. Nevertheless, the EEO-1 is required by law and the September 30 deadline is around the corner. A sample form and instructions are available on the EEOC’s website.

Thursday, July 18, 2013

Week in Review

As Edward Snowden continues to seek asylum, privacy issues remain center stage in the world of technology. Universities are rethinking their network security as they face cyberattacks from around the world. The University of Wisconsin, for example, receives almost 100,000 hacking attempts a day from China alone. Yahoo also won a privacy battle this week. In 2008, it filed objections to the NSA’s program which required Yahoo to release user data without a warrant, and this week the Foreign Intelligence Surveillance Court declassified Yahoo’s 2008 briefing, shedding light on its opposition to the program. Privacy was even the center of attention in the world of apps this week, as employers are increasingly creating blacklists of problematic apps and Tumblr asked users to download a new version of its app and reset their passwords because of privacy vulnerabilities. 

Technology and the Workplace
Universities Face a Rising Barrage of Cyberattacks (NYTimes)
How 3 NFL players' mea culpa will improve your social media policy (Employer Handbook)
Employers, Facebook, and the SCA Do Not a Love Triangle Make (Delaware Employment Law)
Ohio Federal Court Permits Case Alleging Employer's Accessing Of Former Employee's Personal Emails To Proceed (Employer Law Report)

Technology and the Law
Yahoo's secret FISA fight to be made public (CNN)
Bank's new cybersecurity audits catch law firms flat-footed (ABA Journal)
Get Over Your Fear of the Internet, Judge Tells Peers (WSJ)
Ruling: Amazon Can't Own ".Amazon" (WSJ)
GlassUp takes on Google Glass and Google legal (CNET)

There's an App for That
Banned at Work: Employers Blacklist Apps From Facebook, Google (Business Week)
Tumblr asks users to reset passwords after 'security vulnerability' (CNN)
Apps released to fix 'Master Key' security hole in Android phones (LA Times)
Can you turn off Amber Alerts in your phone? (CBS)
Google Maps finally back on iPad; app's iPhone version updated (LA Times)


Wednesday, July 17, 2013

Sometimes You Need a Checklist

Last week, I presented an “employment law update” at my firm’s annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

     1.  Post the new FMLA poster, update your FMLA policy, and start using the new FMLA model forms.  The Department of Labor issued new regulations,  a new poster, and new model forms in March of 2013.  Employers that are subject to the FMLA  need to post the new poster, start using the new forms, and make revisions to their FMLA policies to reflect the changes. 

     2.  Update your investigation forms and processes.  As my colleague Megan Anderson wrote last year, the NLRB and EEOC have taken issue with confidentiality requirements issued in connection with investigations into workplace issues.   The NLRB has held that, under Section 7 of the National Labor Relations Act, a non-management employee has the right to talk with coworkers about workplace concerns and this right is not outweighed by the employer's generalized concerns about the integrity of an investigation.  In addition, the Equal Employment Opportunity Commission (‘EEOC”) has taken the position that overbroad confidentiality requirements violate federal anti-discrimination laws. The NLRB and EEOC have indicated, however, that an employer may request confidentiality based on an individualized assessment that reveals case-specific risks that present a legitimate and substantial business justification for a confidentiality instruction.

      Many employers have forms or written policies they use when conducting internal investigations and I would bet that most of those forms include an instruction to tell witnesses  “to keep the investigation confidential.”  Those forms should be revised and replaced with  instructions and guidance on how to decide whether confidentiality is needed in a particular  investigation. 

     3.  Take the time provided by the recent  delay of the employer mandate in the Affordable Care Act to make sure that your organization is ready for health care reform.  Gray Plant Mooty’s benefits attorneys, Kathi Wright and Monica Kelley, have provided some great tips for employers. 

     4.   Review employee benefit and insurance plans and work with benefits counsel to determine what changes may need to be made to employee benefits in light of Minnesota’s new same-sex marriage law and the U.S. Supreme Court decision holding that the Defense of Marriage Act is unconstitutional.  Benefits attorneys Kathi Wright and Monica Kelly have also published helpful e-Benefits Alerts on these issues.

     5.  Review the attendance, leave and return to work policies that your organization has in place to ensure that they allow for reasonable accommodations and an interactive process with disabled employees.  As I’ve written before on this blog, inflexible leave policies continue to be a significant focus of EEOC enforcement efforts. 

     6.  Employers in Minnesota need to remove criminal history questions from their employment applications.  Minnesota recently passed “ban the box” legislation that requires private employers to wait until a job applicant has been selected for an interview, or a conditional offer of employment has been extended, before asking a job applicant about criminal records or conducting a criminal background check.  The law goes into effect on January 1, 2014.  The Minnesota Department of Human Rights has information for employers on its website , including frequently asked questions.   In addition, all employers need to carefully review their practices and procedures for reviewing background check results to comply with the EEOC’s 2012 guidance.  As my colleague Casey Nolan recently wrote, this is an area of EEOC enforcement focus and the EEOC recently filed two lawsuits.   

     7.  Minnesota employers should carefully review their sick leave and parenting leave policies and make appropriate updates in light of the new Minnesota law that requires employers that offer paid sick leave benefits to allow the use of those benefits for absences related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent.  My colleague Mark Mathison wrote about this change last week.  The law goes into effect on August 1, 2013. 

Thursday, July 11, 2013

Week in Review

When news broke about the NSA surveillance program, privacy became a hot topic. This week, the debate about how to maintain privacy in the digital age continues with Facebook's recent release of its Graph Search function to the general public. Seemingly inconspicuous information on a Facebook user's profile can now be quickly and easily pulled up in a public search. While the implications of this function are yet to be seen, it will likely create an additional wrinkle in how employers respond to employee social media use.

Other technology news this week focused on the interaction between social media and employees' free speech rights, what employees' Facebook posts say about their personalities, and how employers can harness the power of social media to promote their businesses.

Technology and the Workplace
Social Media Free Speech Rights Complicated for Workers (USA Today)
Does Your Email Policy Pass Muster? New NLRB Decision Offers Guidance (Labor & Employment Law Perspectives)
Can Promoted Posts Help Your Business? (Mashable)
Do Those Bong Photos on Facebook Really Translate to Workplace Habits? (ARS Technica)
If You've Ever Posted Anything Embarrassing on Facebook, Now is the Time to Hide It (Slate)

Technology and the Law
Privacy Group Asks Supreme Court to Halt NSA Phone Spying (Wired)
Skype Blunder Interrupts George Zimmerman Trial (LA Times)
School Used Student's Facebook Photo to Illustrate How Embarrassing Posts Never Die, Suit Says (ABA Journal) (Huffington Post)
WI Law Enforcement Awaits Mobile DNA Testing (Dubuque Telegraph Herald)
Iowa DOT Using Facial Recognition Technology (The Gazette)

There's an App for That
14 Gadgets to Keep You Safe This Summer (Mashable)
Rain or Shine, Top 5 Weather Apps Worth Having (LA Times)
Top 10 Apps That Will Change Your Life (WSJ)
The Best Concert-Finding Mobile Apps (NPR)

Change To Minnesota Sick Leave Law Begins August 1

Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends a Minnesota statute in effect since 1990, also broadens the definition of “child” to specifically include stepchildren and foster children as well as biological and adopted children.

This change generally will not affect employers who use only a PTO system that allows employees to take personal time off for any reason.
Under the new legislation, an employer may choose to limit to no less than 160 hours per year the use of paid sick leave for absences related to someone other than the employee’s child. In addition, the amendment leaves unchanged the fact that the right to use sick leave applies only for such reasonable periods as the employee's attendance [with the injured or sick person] may be necessary.”

The statute amended by this new legislation has never applied to insured disability benefits, but only to sick leave paid out of “the employer’s general assets.”  This continues to be the case under the amendment.
An employee who feels that he or she has been denied sick leave in violation of this law can sue the employer directly in state court. If the employee succeeds in showing that the employer has maintained or enforced unlawful restrictions on the use of personal sick leave benefits, the employee may recover any money damages incurred, and the employer will be required to pay the employee’s attorney’s fees.

Employers should examine their sick leave benefits policies before August 1 to ensure that they comply with this newly broadened legal requirement. 

Thursday, July 4, 2013

Week in Review

Whether your plans for the Fourth of July weekend involve working or celebrating, odds are, you'll be using technology of some sort. If your work involves employee recruitment, you may be part of the growing trend of using Facebook to search for new hires. If you live in the San Francisco Bay area, you may be using social media to follow the effects of the BART strike and plan accordingly. For those able to take time off, there are a number of new apps that may add convenience or provide entertainment to your leisure time. You can take better pictures of fireworks, read up on Fourth of July trivia, or book a restaurant table at a discount using Groupon Reserve. Whatever your plans entail, have a safe and enjoyable holiday.

Technology and the Workplace
Court Rules Inspector General Went Too Far in GPS Tracking Ex-Employee (NY Daily News)
The 6 Types of Facebook Posts Employers Don't Want to See (Huffington Post)
Who Would Recruit on Facebook? Try Pepsi, Gap, and Oracle... (Forbes)
The BART Strike in Pictures and Tweets (WSJ)

Technology and the Law
U.S. Police Go High Tech to Tackle Fourth of July Celebratory Gunfire (PC World)
Lawmakers "Disappointed" With Google's Response to Glass Privacy (Washington Post)
Judge Orders Confiscation of Traffic Cameras (ABA Journal) (Cincinnati Enquire)
FCC is Told Verizon Underpaid Data Refunds (NY Times)
Lawyer Who Used Hidden Video Cameras to Peep on Tenants Will Get Psychotherapy Rather Than Jail Time (ABA Journal) (Washington Post)

There's an App for That
Best Fourth of July Apps to Help You Celebrate Independence Day (BostInno)
An Aid to Scheduling Meetings Across Time Zones (CBS)
Southwest and DISH Team Up for Free In-Flight TV on Your iPad (Wired)
Groupon Takes on OpenTable With Restaurant Booking Service (WSJ)

Wednesday, July 3, 2013

Employer Health Insurance Mandate Gets "Yellow Light"

The Obama Administration announced on the afternoon of July 2 that it would not penalize employers that do not provide health insurance in 2014. The Affordable Care Act initially required that all employers with more than 50 employees provide coverage to workers or pay significant fines, beginning in 2014. The Treasury Department now says that it will postpone its implementation until 2015, largely due to employers' concerns. Stay tuned for more specifics as the Treasury Department clarifies this and as employers figure out what this means for them going forward.

For an E-Benefits take on this issue -- click here.