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

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January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 14, 2011

Diploma requirement may violate the ADA

Posted in Application Process, Diploma requirements, Disability, Discrimination, Interviewing, Job Descriptions tagged , , , , , at 9:47 am by Tom Jacobson

If you search monster.com or  even the “help wanted” section of any newspaper, the odds are pretty good you’ll stumble upon countless ads where “high school diploma or its equivalent” is listed a job requirement.  That may seem like a pretty innocuous requirement; after all, a diploma certainly indicates the applicant has met someone’s established standards of intelligence and ambition.  However, as the Equal Employment Opportunity Commission (EEOC) has recently stressed, a diploma requirement may violate the Americans with Disabilities Act (ADA).

The EEOC’s comments came in the form of an “informal discussion letter,” which responded to a request for public  comment on the issue.  In that letter, the EEOC noted that there are many individuals who, due to various learning disabilities, may be unable to obtain a high school diploma or its equivalent.  Yet, they may have the skills to perform the essential functions of the job to be filled. “Thus,” the EEOC noted, “if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.”

Although the EEOC’s  informal letter does not constitute the official opinion of the Commission and does not carry the force or effect of a law or regulation, it serves as a reminder to employers that job requirements must be truly job-related and consistent with business necessity.  Artificial requirements which act as barriers that keep otherwise qualified individuals with disabilities out of the workplace will be subject to challenge.

For more information about this article, 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 7, 2011

Mean guys finish last: temperament as a job qualification

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , , , at 9:10 am by Tom Jacobson

Bad temperament during the application process can be used as the reason to reject a candidate, according to the United States Court of Appeals for the Eighth Circuit.

Last August I commented the case of Amini v. City of Minneapolis.  The case centers around Hamid Amini, who was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing, background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the city did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

Last summer, the United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

Amini appealed his case to the Eighth Circuit Court of Appeals, and in a July 5, 2011 decision authored by Circuit Judge Roger Wollman, the appellate court affirmed Judge Frank’s decision.

While the Amini case reinforces the principle that an employee’s or applicant’s temperament can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  Indeed, Judge Wollman cautioned against the use of subjective criteria because they can be easily fabricated.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.  However, in situations where candidates’ objective qualifications are comparable, the mere use of subjective criteria, such as temperament, does not create an inference of discrimination.

For more information about this post, 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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

December 22, 2010

Bloomington-based Seagate hit with $1.9M verdict for misrepresenting job to recruit

Posted in Fraud and Misrepresentation, Hiring and Recruiting, Interviewing, Job Descriptions, Minnesota Statute 181.64 tagged , , , , at 10:45 am by Tom Jacobson

 

 

When Chandramouli Vaidyanathan accepted a job with Bloomington, MN-based Seagate Technologies, he thought he would be leading the company’s yield engineering team. The job was not what Vaidyanathan expected, so after he was transferred to a different position within the company and later dismissed along with 100 other employees during a lay-off, he sued Seagate. On November 18, 2010 a jury awarded Vaidyanathan $1.9 million.

One of Vaidyanathan’s legal theories was that Seagate had violated section 181.64 of the Minnesota Statutes (http://bit.ly/gzdFuI). This law makes it unlawful for a Minnesota employer to knowingly make false representations to induce a job recruit to relocate to accept a job offer. Employers who violate this law can be ordered to pay the employee’s damages and attorneys’ fees.

A violation of this law is also a misdemeanor, so an employer who breaks this law could be punished with a fine of up to $1,000.00 and/or ninety days in jail.

In Vaidyanathan’s case, the evidence established that Seagate made a clear and definite promise to Vaidyanathan that his job would be to lead the company’s yield engineering team. According to the Court, Seagate’s promise was, however, “made, in part, out of ignorance and a lack of sufficient information,” and Vaidyanathan testified that he never did any yield engineering work for Seagate.

After a seven-day trial, the jury concluded that Seagate knowingly made false representations to Vaidyanathan about the kind and character of his work and that Seagate’s misrepresentation induced him to take the job and move to Minnesota from Texas. The jury then awarded Vaidyanathan, whose starting salary had been $126,048.00, $1.9 million in damages. The jury’s Special Verdict can be read at http://bit.ly/grjREY.

Claims under Section 181.64 are rarely litigated, and when they are, they are often dismissed. Nevertheless, Vaidyanathan’s case stands as a vivid reminder of the importance of accurately describing a job to recruits.

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.

 

August 10, 2010

Angry applicants & cranky candidates: Can temperament be a job qualification?

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , at 11:22 pm by Tom Jacobson

If an applicant who is minimally qualified for a job becomes agitated or otherwise shows bad temperament during the application process, can those personality traits be used as the reason to reject the candidate?  Consider the July 28, 2010 case of Amini v. City of Minneapolis.

Hamid Amini was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing,  background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the City did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

The United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

While the Amini case reinforces the principle that an employee’s or applicant’s temperamant can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.

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.

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