Lexology (09/16/14) Fred W. Alvarez; Eric S. Dreiband; Brian M. Jorgensen; et al.

New Jersey, Illinois, San Francisco, and Washington, DC, recently joined several other states and cities in adopting “ban the box” laws prohibiting private employers from asking applicants about their criminal history until a certain point in the process. Sixty-seven cities and counties and 13 states have such provisions on the books. Advocates say these laws help remove the stigma from job applicants who have criminal convictions. Many employers oppose the provisions, arguing that they have an obligation to provide a safe workplace. This Lexology commentary examines laws in Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, and also offers suggestions about compliance.

Lexology (09/12/14) Jose (Joe) Perez

California Gov. Jerry Brown recently signed a bill requiring businesses with 50 or more employees to educate supervisors on preventing abusive conduct in the workplace. The abusive conduct does not have to be based on a protected characteristic or constitute illegal discrimination or harassment. The law defines abusive conduct as malicious conduct that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. It can include verbal abuse; insults; epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; and gratuitous sabotage or undermining of a person’s work performance.

Lexology (09/16/14) Benjamin E. Ford; Douglas P. Currier; Erik Peters; et al.

There are many labor laws employers should be aware of when doing business in Massachusetts. This article offers answers to several common employer questions. For example, what state-specific laws govern the employment relationship; who do these cover, including categories of workers; are there state-specific rules regarding employee or contractor misclassification; must an employment contract be in writing; and what can employers do with regard to background checks and inquiries? State courts will diverge from federal precedent in certain situations. The Massachusetts Commission Against Discrimination is very active in investigating complaints, holding hearings, and issuing penalties. The governor recently introduced a bill to ban noncompete agreements, though there would be some exemptions.

Lexology (09/16/14) David A. Johnson

The Seventh Circuit recently upheld the Indiana Right to Work Act, which bars unions from requiring an employee to become or remain a member of a labor organization; pay dues, fees, assessments, or other charges to a labor organization; or pay to a third party an amount equivalent to or a pro-rate part of dues, fees, assessments, or other charges required of members of a labor organization. The International Union of Operating Engineers, Local 150, AFL-CIO argued that the law exceeds the bounds of the Taft-Hartley Act.

Lexology (09/04/14) Aaron R. Gelb; Benjamin A. Hartsock

There are some circumstances in which an employer may legally terminate a pregnant employee, though it is a risky proposition and can hurt the company’s reputation. Under the Pregnancy Discrimination Act, an employer cannot fire a pregnant employee simply because she may not be able to do her job. However, the courts have held that companies can terminate the employee in some limited circumstances when she is not eligible for Family and Medical Leave Act leave and the employer does not offer leave to nonpregnant employees who also temporarily cannot work.

In Cadenas v. Butterfield Health Care II Inc., a nursing assistant was terminated when she gave notice that at 20 weeks pregnant she would no longer be able to push, pull, or lift more than 20 pounds—essential duties for her job. The court found that if an employer does not offer certain treatment to a nonpregnant employee it is not required to give special treatment to a pregnant employee. In the rare event that a pregnant employee must be terminated, companies should be sure to thoroughly document the reasons.