Business Management Daily (03/07/12)

The Society for Human Resource Management expects states to pass new employment laws while federal lawmakers concentrate on the upcoming election. Five states already have passed laws limiting the use of credit reports in hiring decisions, and more are expected to follow suit. Connecticut has passed legislation mandating paid sick leave, and other states likely will do the same. Meanwhile, more states could mandate the use of the E-Verify work authorization system, pass laws that prohibit discrimination against workers who are victims of domestic violence, and hold employers liable for instances of workplace bullying.

Franczek Radelet (03/06/2012) Mark Wilkinson

In the case Valdez v. McGill, a warehouse supervisor took leave under the federal Family and Medical Leave Act for a surgery related to colon cancer, then after returning from the surgery, he took intermittent FMLA leave over the course of a year due to recurring health issues. He then presented a note from his doctor saying he could not work for two weeks, as his health issues had not changed, and when those two weeks were up, he presented another letter from his doctor saying that he “may return to work” in another three weeks. Noting that he had used up the 12 weeks of FMLA leave available and citing poor work performance and excessive absences, he was terminated. The worker filed suit against his employer for failing to make a reasonable accommodation for his disability under the federal Americans With Disabilities Act.

However, the U.S. Equal Employment Opportunity Commission says employers are not obligated to accommodate requests for leave of an indefinite duration, and the court confirmed this position. Thus, employees must communicate regularly with their employers and provide firm dates for when they will return to work. Even so, employers should be mindful of the interactive process under the ADA in which they must communicate with employees regarding a need for leave and make individualized assessments of these requests.

JDSupra (03/05/2012)

The U.S. Equal Employment Opportunity Commission states that employers may be in violation of Title VII of the Civil Rights Act of 1964 by refusing to hire people with criminal conviction records, unless a business necessity justifies such a practice. The EEOC says basing employment decisions on criminal conviction records puts African-Americans and Hispanics at a disadvantage because they are convicted at a rate that is disproportionately higher than their representation in the population. It defines “adverse impact discrimination” as a “substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.” To determine whether basing hiring decisions on criminal convictions is a business necessity, the EEOC says they must consider the nature and gravity of the offense, the time that has passed since the conviction or completion of the sentence, and the nature of the job.

Employers, especially in the hospitality industry, have been targeted by the EEOC’s systemic investigations as part of its E-RACE (Eradicating Racism and Colorism from Employment) initiative, which focuses on the use of arrest and conviction records in hiring practices. Experts say employers using criminal background checks should assess their current policies to ensure that the credit reporting agency they use complies with state laws and the federal Fair Credit Reporting Act and that their policy makes the aforementioned considerations set forth by the EEOC regarding the applicant’s offense. Additionally, they should avoid implementing blanket policies in which no one with a criminal record is hired.