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

October 17, 2012

Why Honesty Is Always the Best Policy — Especially on a Job Application

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Dishonesty, Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , at 10:54 am by Tom Jacobson

UPDATE: Due to an amendment to Minn. Stat. § 364.021 (effective Jan. 1, 2014), this article is outdated. For an update, see Ban the Box.

Years ago when I was a newly minted lawyer, a college buddy of mine was in a pickle.  He was applying for a job, and the application form asked if he’d ever been convicted of a crime.  “Remember my little run-in with the cops when they crashed that party I was at?” he asked. “Well, I got charged with a misdemeanor, but I’ve paid the fine and done the time, and it really has nothing to do with the job I’m applying for. Do I really need to disclose it?”

More recently, a number of my employer clients have asked, “May we ask about applicants’ criminal convictions, and if they disclose convictions, may we consider them in the hiring process?”

The answer to all of these questions is generally yes, and a recent Minnesota Court of Appeals case illustrates one of the reasons why.

The case involved Ryan Goebel, who in 2011 applied for a part-time job as a pizza cook at a Casey’s General Store. The application form asked if he had “ever been convicted of a crime other than a routine traffic violation.” Goebel failed to disclose his 1996 misdemeanor theft conviction or his 1997 convictions for gross misdemeanor check forgery and fifth-degree criminal sexual conduct.

Casey’s hired Goebel but later fired him after they learned about his criminal past. Goebel applied for unemployment, but his benefits were denied on the basis that his failure to disclose the convictions was misconduct that disqualified him from benefits.

Goebel appealed the decision, and in an October 15, 2012 decision the Court of Appeals affirmed the denial. In reaching its decision, the Court observed that:

[Goebel’s] theft, check forgery, and criminal sexual conduct may have been immaterial to his performance as a pizza cook, but they were not immaterial to his behavior as an employee with access to cash and inventory and contact with customers…. Casey’s had a right, arguably even a duty, to discover if prospective employees had a history of dishonest or inappropriate behavior. Thus, honesty in filling out a job application was a standard of behavior Casey’s had the right to reasonably expect, and [Goebel] violated that standard.

What you need to know: Applicants need to be honest on their applications, even if that means disclosing a prior criminal conviction. Even if a prior conviction has nothing to do with the job being applied for, the failure to disclose it may be considered misconduct because honesty on a job application is a standard of behavior employers have a right to reasonably expect. Employers have a right — and arguably a duty — to ask about an applicant’s prior criminal convictions. If such convictions are material to the job, they can — and should — be taken into account when evaluating the candidate’s application.  However, before using criminal records as a part of their hiring process, employers should familiarize themselves with the EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 27, 2012

Use of Criminal Records in Employment Decision-making Clarified by EEOC

Posted in Arrest records, Background Checking, Conviction Records, Criminal History, Hiring and Recruiting tagged , , , , , at 8:58 am by Tom Jacobson

The Equal Employment Opportunity Commission on April 25, 2012 issued a new Enforcement Guidance, titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

While Title VII does not expressly prohibit the use of such records when making employment decisions, the use of those records will be unlawful discrimination if it disproportionately impacts classes of individuals who are protected by Title VII. One example of this is a recent case where Pepsi agreed to pay $3.13 million to settle a case challenging its former background checking policy (see Pepsi Popped for 3.1M in Background Check Case).

According to EEOC Chair Jacqueline A. Berrien, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”  To that end, the EEOC reports that the Enforcement Guidance addresses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

What you need to know:  The use of arrest and conviction records is technically not a violation of Title VII.  However, Title VII will be violated if an employer’s practices disproportionately impact protected classes of individuals, and other laws may restrict or regulate an employer’s use of such records.  Therefore, before arrest and conviction records are used, employers must thoroughly understand the proper way of using them; reviewing the EEOC’s new Enforcement Guidance will be a step in the right direction.

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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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