February 3, 2016

“Boys are Boys” No Defense to Workplace Violence Claims

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision tagged , , , , , at 7:03 pm by Tom Jacobson

workplace violence

Reduce the risk of negligent hiring and negligent retention claims by adopting and following proper screening and workplace violence policies.

Employers can be held liable for injuries suffered by employees who are assaulted by their co-workers, the Minnesota Court of Appeals reiterated in a recent case. The decision highlights the importance of reducing the risk of workplace violence by conducting background checks of potential employees and enforcing anti-violence policies with existing employees.

The case, Hartfiel v. Allison (Jan. 25, 2016), started when an employee of T.J. Potter Trucking, Inc., Raymond Allison, hit co-worker Richard Hartfiel with a three-foot long steel bar while Hartfiel was sitting in his truck. Hartfiel suffered broken bones and other injuries and incurred over $75,000 in medical expenses.

In the resulting lawsuit, Hartfiel claimed that Potter Trucking was liable to him because it negligently hired and retained Allison. In support of his negligent hiring claim, Hartfiel pointed to the fact that Allison had a criminal history that included multiple assault convictions. He alleged that had Potter Trucking done a criminal background check and followed its own standard hiring procedures, they would have known to not hire Allison.

The court acknowledged that Minnesota employers may be held liable for negligent hiring if they fail to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public. This means that the scope of pre-employment investigations must be directly related to the severity of risk third parties are subjected to by an incompetent employee (the greater the risk, the more intensive the pre-employment screen should be). However, the court also noted that employers do not, as a matter of law, have a duty to conduct a criminal background check on prospective employees.

The court then rejected Hartfiel’s negligent hiring claim on the basis that Potter Trucking’s pre-employment inquiry was adequate:

Here, the unchallenged evidence shows that, although Allison provided Potter Trucking a release to perform a background check, Potter Trucking checks applicants’ driving records but does not conduct criminal background checks. Typically, Potter Trucking hires people on referral. Potter Trucking followed its standard procedures—it required Allison to submit an application, interviewed him, required him to submit to drug testing, obtained a release for a background check, and relied on a referral from Allison’s previous employer…. The record contains no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him.

However, the court allowed Hartfiel’s negligent retention claim to proceed. Quoting a 1993 Minnesota Supreme Court case (Yunker v Honeywell), the court defined negligent retention:

Negligent retention … occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.

Applying that standard to Hartfiel’s claim, the court noted there was evidence that after Allison was hired, he assaulted a subcontractor, but the owner minimized it “because it ‘[was not] work related’ and because ‘boys are boys.'” Other evidence suggested that when Allison thought a foreman had been rude to him, he threatened, “it’s no secret where I live, come on over there and I’ll . . . kick your ass all over the yard.” Because of that evidence, the court allowed the negligent retention claim to proceed to trial:

The previously discussed evidence of Allison’s violent behavior against a Potter Trucking subcontractor in a tavern and threatening behavior toward a Potter Trucking foreman is the type of evidence on which a jury could find that Allison had violent propensities about which Potter Trucking knew or should have known.

The Hartfiel case reminds us that when hiring, employers should conduct pre-employment background checks that are sufficient to determine whether a candidate would pose a threat if hired. The greater the risk, the more intensive the background check should be. The depth of that investigation should be set well before the hiring process begins, and it should be consistently applied.

Moreover, the case reminds us that ignoring acts of workplace violence and threats of harm will subject an employer to liability for negligent retention. Thus, employers should adopt and enforce policies against workplace violence, and they should not brush off misconduct just because they think “boys are boys.”

For more information about workplace violence or guidance on how to develop or enforce policies and procedures to address these issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA
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August 26, 2015

Target Settlement Sheds Light on Disparate Impact Discrimination

Posted in Application Process, Background Checking, Disability, Discrimination, Disparate Impact, Disparate Treatment, Gender / Sex, Race, Uncategorized tagged , , , , , , , at 9:15 am by Tom Jacobson

By now, you’ve probably read or heard about Target Corporation’s agreement to pay $2.8 million to settle an EEOC discrimination charge. Unlike a “disparate treatment” case where the plaintiffs claim that an employer’s actions were motivated by discriminatory intent, this was a “disparate impact” case where the EEOC alleged that screening tests used by Target disproportionately excluded applicants on the basis of race and gender and violated the Americans with Disabilities Act. So, what’s the difference between “disparate impact” and “disparate treatment” discrimination?

Disparate impact discrimination cases typically arise out of pre-employment tests, medical exams, background check policies and similar assessments that are used to screen candidates for a job or advancement within a company. The theory was first recognized by the United States Supreme Court in 1971 in the case of Griggs v. Duke Power Co. In that case, the Court noted that:

[Title VII of the Civil Rights Act of 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [a protected class] cannot be shown to be related to job performance, the practice is prohibited.

The Griggs Court also stressed that good intentions do not matter, for “[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Thus, in a disparate impact case, the focus is not on evidence that the employer intended to discriminate.  Rather, the focus is on statistics. If the statistics show that the employer’s screening practice — no matter how innocuous on its face — has a substantial adverse impact on a protected group, the employer must show that the practice is job-related for the position in question and consistent with business necessity. The employer might still lose the case if there is evidence that the company refused to adopt an alternative employment practice that would have served the employer’s legitimate interests without creating a disparate impact on a protected class.

In contrast, in a disparate treatment case, the focus is on evidence of the employer’s intent. If the evidence shows that the employer intentionally discriminated against an employee or applicant on the basis of a protected classification, the employer will be held liable for unlawful employment discrimination based on the disparate treatment theory.

In addition to paying nearly $3 million to settle the EEOC case, Target also agreed to several non-monetary terms, such as:

  • Not using the assessments again as part of its exempt-level employment selection procedures;
  • Changing its applicant tracking systems to ensure that the collection of data is sufficient to assess adverse impact;
  • Performing a predictive validity study for all exempt assessments currently in use and any new assessments the company expects to use;
  • Monitoring its assessments for exempt-level professional positions for adverse impact based on race, ethnicity and gender; and
  • Annually providing the EEOC with a detailed summary of the studies and the adverse impact analysis conducted.

As the Target case shows, even seemingly innocent employment screening practices can violate Title VII and other anti-discrimination laws. Therefore, employers who use such devices should carefully evaluate their potential adverse impacts before using or continuing them.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

June 16, 2015

Medical Marijuana: Are You Ready to Roll with It?

Posted in Application Process, Discrimination, Drug and Alcohol Testing, Drug and Alcohol Testing, Medical Marijuana, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , , , , , at 9:53 am by Tom Jacobson

medical marijuana and the workplace

Medical cannabis can be lawfully dispensed in Minnesota starting July 1, 2015. How will it impact your workplace?

Medical marijuana (technically, “medical cannabis”) can be lawfully dispensed in Minnesota starting July 1, 2015. What does this mean for Minnesota employers?

First, the state’s new medical cannabis law generally prohibits Minnesota employers from using a job applicant’s or employee’s status of being on the medical cannabis registry as a reason for discriminating against that person. In other words, Minnesota employers generally cannot discipline, discharge or refuse to hire someone just because they are on the registry.

The new law also largely prohibits employers from discriminating against employees and applicants who test positive for cannabis unless they used, possessed or were impaired by the drug while at the work site or during work. While proving use or possession should not be too problematic, the law certainly complicates the “impaired by” part of the analysis.

Historically, employers could prove impairment by administering a drug test that complies with the Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”). A positive test under MDATWA opened the door for future disciplinary action or withdrawing a job offer. Now, not only are employers prohibited from discriminating against employees and applicants who test positive, but also employees and applicants will have the right to provide their medical cannabis registration as an explanation for a positive test. While this still does not allow a registered patient to use, possess or be impaired by the drug at work, the challenge is that a positive test for cannabis will not necessarily prove when the employee or applicant used, possessed or was impaired by the drug.

As noted above, these are the general rules. There are a few key exceptions. Specifically, employers may discriminate against those on the state’s medical marijuana registry if failing to do so would violate federal law or regulations or cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. Thus, employers who are covered by laws such as the Federal Drug-Free Workplace Act of 1988 or the Omnibus Transportation Employee Testing Act of 1991 will be able to hold registered patients to a higher standard.

Employers also need to recognize that Minnesota’s medical marijuana law differs significantly from comparable laws in other states. Therefore, they should not pay too much attention to what happens elsewhere. For example, in one recent case (Coats v. Dish Network, LLC) the Colorado Supreme Court ruled that Dish Network lawfully fired an employee who tested positive for marijuana, even though that employee was apparently using the drug lawfully under that state’s marijuana laws. Given Minnesota’s prohibition against discriminating against registered patients who test positive, the outcome would probably be different here.

As a practical matter, dealing with the implications of the state’s medical cannabis law should be a relatively rare occurrence. The state estimates there are only 5,000 people (about 0.09% of the entire state) who will qualify to be on the registry (see J. Ehrlich, Minnesota Medical Marijuana: What You Need to Know, MPR News, June 1, 2015). With a labor force of about three million workers (see Minnesota Department of Employment and Economic Development Unemployment Statistics for April, 2015), that means there are probably only 2,700 potential workers statewide who could be on the registry. Given the severity of the conditions for which a person may qualify to be on the registry, the likelihood of those people also being in the workforce is even more remote.

Nevertheless, employers must be prepared to address the workplace challenges presented by Minnesota’s medical cannabis law. Specifically, workplace drug and alcohol policies (particularly MDATWA-compliant testing policies) should be reviewed and revised if needed to take into account the state’s medical cannabis law. And, employers will need to rely on evidence other than a drug test if they want to take action against employees or applicants who they believe have used, possessed or were impaired by marijuana on the work site or during work hours.

For more information, see please contact me at taj@alexandriamnlaw.com.

The comments posted in this article are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

June 15, 2015

Supreme Court Rules for EEOC in Abercrombie & Fitch Dress Code Case

Posted in Application Process, Discrimination, Dress Code, Grooming, Reasonable Accommodation, Relgious Discrimination, Religion, Title VII of the Civil Rights Act of 1964 tagged , , , , , , , , at 10:36 am by Tom Jacobson

Employers must now use more caution when their dress codes clash with their employees’ religious beliefs. That is the result of the United States Supreme Court’s June 1, 2015 ruling in EEOC v. Abercrombie & Fitch Stores, Inc.

The case arose after Samantha Elauf applied for a job with Abercrombie. Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf known as a hijab. Abercrombie had a “look policy” that prohibited employees from wearing “caps” as being too informal for work attire. The policy did not define “caps.”

After an interview, the assistant store manager rated Elauf as qualified to be hired, but she was concerned that the headscarf would violate the company’s “look” policy. Elauf, however, never requested an exception to that policy so that she could wear the hijab. The assistant manager asked her district manager for guidance, and she told the district manager that she believed Elauf wore the headscarf because or her faith. The district manager said the headscarf would violate the look policy, and he directed the assistant store manager to not hire Elauf.

The EEOC then sued Abercrombie on behalf of Elauf on the basis that the company’s refusal to hire Elauf violated the religious discrimination prohibitions of Title VII. The trial court ruled in favor of the EEOC (See Abercrombie & Fitch Dressed Down over Hijab in Religious Discrimination Case). The Tenth Circuit Court of Appeals reversed on the basis that because Elauf never provided Abercrombie with actual notice of her need for accommodation of her religious belief, Abercrombie could not be liable under Title VII.

On further appeal, the Supreme Court agreed with the EEOC and trial court. Specifically, the high court ruled that to prove a claim of religious discrimination in the workplace, an applicant need only show only that his/her need for an accommodation was a motivating factor in the employer’s decision, not that the employer knew of the need. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Thus, even if an employee or applicant has not requested a religious accommodation (for example, a dress code or grooming policy exception, schedule modification, etc.), an employer must not use that person’s religious faith as a factor in making decisions about the employee or applicant. In addition, employers should keep their dress and grooming codes somewhat flexible to allow for the accommodation of affected religious beliefs.

For more information, see the EEOC’s publications, Questions and Answers: Religious Discrimination in the Workplace and Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

May 26, 2015

Registration Deadline is June 1 for Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 4:20 pm by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

The registration deadline for the Twelfth Annual West Central Minnesota Employment Law Update is June 1. Seating for the June 11, 2015 event is limited, so please register soon if you plan to attend.

For more details and registration forms, please see Registration Open for Twelfth Annual West Central MN Employment Law Update, or contact me at taj@alexandriamnlaw.com or 320-763-3141.

I hope to see you on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 17, 2015

Registration Open for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 9:19 am by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

Registration is now open for the Twelfth Annual West Central Minnesota Employment Law Update to be held Thursday, June 11, 2015. The event is sponsored by West Central Minnesota SHRM, and it will be held at Alexandria Technical and Community College.

The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters. Masters is an award-winning author and international speaker who provides attendees with not only a memorable multi-media experience, but also immediate “take-home” value for all levels of HR leadership to help them develop and empower a workforce of future leaders.

Click on the following links for more information and the registration form:

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

Contact me at taj@alexandriamnlaw.com or 320-763-3141 if you need more information. We hope you can join us on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 20, 2015

Save the Date for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , at 9:04 am by Tom Jacobson

The twelfth annual West Central Minnesota Employment Law Update will be held Thursday, June 11, 2015 at Alexandria Technical and Community College. The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters.

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 11! Stay tuned for registration, agenda and other details.

Save the Date

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 23, 2015

Medical Marijuana in the Minnesota Workplace

Posted in Application Process, Drug and Alcohol Testing, Drug and Alcohol Testing, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , at 6:34 pm by Tom Jacobson

medical marijuana and the workplaceThis morning I had the opportunity to give a Minnesota Continuing Legal Education presentation on the workplace impacts of Minnesota’s legalization of medical marijuana at the 2015 Public Sector Labor and Employment Law Update in Minneapolis.

In short the state’s legalization of medical marijuana (technically, medical “cannabis”) could prove to be very challenging for Minnesota employers. Generally, the law prohibits employers from taking adverse action against applicants and employees who are on the medical cannabis registry and test positive for cannabis components or metabolites.

There are exceptions to that general rule. For example, even when employees are on the registry, the law does not allow them to use, possess, or be impaired by medical cannabis on the work premises or during the hours of employment. Use and possession would be relatively easy to prove, but the presence of cannabis components or metabolites does not necessarily equate to impairment. Consequently, a positive drug test without evidence of impairment (especially following a random test) may be of little value.

Similarly, a positive test result during a pre-employment drug screen of an applicant who is on the registry may also be of little value. After all, because applicants are not yet employees, any impairment could not possibly be “during the hours of employment.” Thus, employers may be left with looking into whether or not the applicant used, possessed or was impaired by medical marijuana on the work premises.

Another exception allows employers to discriminate against employees and applicants who are on the registry if not doing so would violate federal law or regulations or cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. Thus, for example, it is likely that for jobs requiring a commercial driver’s license subject to federal DOT regulations, employers may discriminate against those who are on the registry.

As a practical matter, the legalization of medical marijuana will affect relatively few Minnesota employers as the law is currently written. It has been estimated that only 5,000 Minnesotans will qualify for the registry (WCCO reports that only about 1,000 to date have expressed interest). And, those who do are unfortunately suffering from a short list of serious impairments, many of which will likely keep them out of the workforce. Thus, it should be a rare occurrence for an employer to need to address this issue. However, the potential expansion of the list of reasons for getting on the registry would greatly increase the chances that employers will be faced with these challenges.

As a result, employers must be prepared to deal with these issues. This means training employees to recognize signs of use, possession and impairment, and proactively amending policies to be prepared for these challenges before they arise.

Finally, employers and employees need to keep in mind that medical cannabis cannot be made available in Minnesota until July 1, 2015. So any positive test results until then cannot be excused by being on the registry.

For more information about this article, please see Dazed and Confused: Medical Marijuana and the Workplace, or contact me at taj@alexandriamnlaw.com.

The comments posted in this article are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 6, 2014

Disciplining off-duty conduct: why the NFL model doesn’t work in the real world

Posted in Application Process, Arrest records, Background Checking, Ban the Box, Child Abuse and Neglect, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interviewing, Minnesota Human Rights Act, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Title VII of the Civil Rights Act of 1964 tagged , , , , , , , , at 4:15 pm by Tom Jacobson

Police light122811Imagine that you’re an HR director and a security-cam video supposedly depicting one of your key employees knocking out his girlfriend in an elevator ends up on YouTube for the world to see. Or, imagine that one of your key employees is indicted for abusing his son after photos allegedly depicting the boy’s wounds from his dad’s switch go viral. Imagine further that neither incident occurred on your company’s premises or while the employee was on the job.

Sound familiar?

Fortunately, most of us never have to deal with employees who make headlines like Ray Rice and Adrian Peterson (see Ray Rice Terminated by Team, Suspended by NFL after New Violent Video, CNN Sept. 16, 2014; Minnesota Vikings Reverse Course, Suspend Adrian Peterson, ABC News Sept. 17, 2014). However, all employers must occasionally confront the challenge of what to about an employee’s off-duty misconduct.

With the suspensions of Rice and Peterson fresh in our minds, it may seem like an easy solution: suspend or fire any employee who is charged with or convicted of a crime that we find repulsive or contrary to our organization’s values. That may work in the NFL, but for the rest of the working world, it’s not that simple. There are many laws that limit how employers may use such information.

One example is Title VII of the Civil Rights Act of 1964. Among other things, this law prohibits racial discrimination in employment. Applying Title VII, the courts have said that the overly restrictive use of criminal background information in the workplace is unlawful because it disproportionately excludes certain racial groups from employment.

So, what is too restrictive? There is no hard and fast rule, but the Equal Employment Opportunity Commission, which enforces Title VII, has provided some guidance (see Background Checks: What Employers Need to Know). Specifically, the EEOC first stresses that employers who obtain criminal history information about employees or applicants must do so uniformly: doing it for only members of protected classes will violate Title VII.

The EEOC also notes that once such information is obtained, it must be used in a non-discriminatory way:

  • The same standards must be applied to everyone.
  • A policy or practice must not exclude people with criminal records if the policy or practice significantly disadvantages individuals with a protected characteristic and does not accurately predict who will be a responsible, reliable, or safe employee. As stated by the EEOC, the policy or practice is unlawful if it has a “disparate impact” on protected employees and is not “job related and consistent with business necessity.”
  • Be prepared to make exceptions for problems potentially caused by disabilities.

To determine whether a person’s criminal history is “job related and consistent with business necessity” under Title VII, employers need to consider: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought (see Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, EEOC April 25, 2012).

Another federal law, the Fair Credit Reporting Act, also applies when employers hire a third party to conduct background checks. The FCRA includes requirements about what employers must do before obtaining such information and what they must do before and after taking adverse action based on the reports obtained. The FCRA is enforced by the Federal Trade Commission, which has published a summary of employers’ obligations under the law (see Using Consumer Reports: What Employers Need to Know, FTC Jan. 2012).

For Minnesota employers, the state’s “Ban the Box” law (Minn. Stat. Sect. 364.021) presents another challenge. Like Title VII, this law does not prevent an employer from considering a person’s criminal history when making work-related decisions. It does, however, restrict when that information may be obtained or used. Specifically, the law prohibits employers from inquiring into or considering criminal records or history until after applicants have been selected for an interview or, if there is no interview, after a conditional offer of employment is made.

With all of these restrictions, why even bother looking into someone’s off-duty conduct?

Despite these challenges, it’s still good business to hire and keep employees who fit well with the organization. And, there are  risk-management reasons for doing background checks.

For example, if a Minnesota employer does not check an applicant’s background thoroughly enough, it can be held liable for negligently hiring someone who later harms another. That was the situation in the case of Ponticas v. K.M.S. Investments where a landlord was held responsible for its property manager’s sexual assault of a tenant.  The landlord had only done a cursory background check on the manager, and a better pre-hire investigation would have revealed the manager’s history of violent crime.

Similarly, if employees start to exhibit behaviors suggesting that they might harm others, their employers can be held liable for failing to protect those who are eventually harmed.  The Minnesota Supreme Court recognized this concept in the case of Yunker v. Honeywell, where an employee murdered a co-worker after a number of post-hire incidents suggested that the employee had violent propensities.

Now imagine again that video or indictment on your desk. Or imagine that your background check has revealed some other off-duty misconduct that you wished you never knew about. Know that the NFL’s model simply does not apply in the real world. Employers facing these situations should think carefully and not automatically leap to the conclusion that the employee should suffer some work-related consequence in addition to whatever sanction s/he got elsewhere.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 30, 2014

Registration Open for 11th Annual Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interactive Process, Minnesota Human Rights Act, Reasonable Accommodation, Religion, Sexual Orientation, Stereotyping, Training tagged , , , , , , , at 11:38 am by Tom Jacobson

Registration is now open for the Eleventh Annual West Central Minnesota Employment Law Update to be held on Thursday, June 12, 2014 at Alexandria Technical and Community College. This year’s event will cover:

  • Hot off the Press — Employment Law News You Can Use: presented by yours truly
  • Reasonable Accommodation and Fitness for Duty: A Practical Guidance on Real Work Problems: presented by attorney Penelope J. Phillips
  • Emerging Discrimination Issues in Employment Law: presented by attorney Mike Moberg
  • Ban the Box and Criminal Background Checks: Putting it All Together So That You Get it Right: presented by attorney Penelope J. Phillips
  • Bonus HR Session: Recruit, Motivate and Retain Your Workforce: presented by humorist and corporate trainer, Ted Schick

The event has been approved for 6.0 HRCI credits. Go to 2014 Employment Law Update Agenda for complete details and to 2014 Employment Law Update Registration to register. I look forward to seeing you on June 12!

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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