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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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

February 19, 2014

Fair Credit Reporting Act — a trap for the unwary

Posted in Application Process, Background Checking, Credit Checks, Fair Credit Reporting Act tagged , , , , , , , , , at 10:54 am by Tom Jacobson

In my last post, I noted how Minnesota’s new “ban the box” law limits how private sector employers may check the criminal history of potential employees. Another trap for employers who conduct background checks is the Fair Credit Reporting Act.

The FCRA is a federal law that restricts how employers may obtain and use consumer reports and investigative consumer reports in connection with hiring and making other decisions about employees. For example, the law requires that applicants and employees must be notified in writing of the employer’s intent to obtain such reports before they are obtained. This notice must be a “stand alone” document that contains only the disclosure. Minnesota law also requires that this notice must contain a box for the applicant or employee to check to indicate whether s/he wants to receive a copy of the report (which must be provided free of charge).

Other FCRA requirements include obtaining the applicant’s or employee’s signed authorization before requesting or obtaining consumer reports or investigative consumer reports, certifying FCRA compliance to the consumer reporting agency from whom the reports are obtained, and providing written notices to an applicant or employee both before and when adverse action is taken based in whole or in part on a consumer report or investigative consumer report. Along with the written adverse action notices, employers must also provide a form known as the Summary of Your Rights under the Fair Credit Reporting Act. The Federal Trade Commission adopted a new summary of rights form which employers must use effective January 1, 2013.

Of course, the FCRA also has detailed definitions of what is a “consumer report,” “investigative consumer report,” “consumer reporting agency,” etc.

The consequences for non-compliance with the FCRA can be steep, for individuals may bring private lawsuits against employers who violate the law. In addition, certain federal and state agencies may seek injunctive relief and penalties. Criminal sanctions are also possible if an employer obtains information from a consumer reporting agency under false pretenses.

Obtaining credit information can be valuable tool for screening applicants and employees, especially if the job at issue involves financial management or oversight. However, employers obtaining consumer reports and investigative consumer reports must strictly comply with the FCRA and any of its state counterparts.

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

January 31, 2014

Ban the box

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Workplace Violence tagged , , , , , at 2:56 pm by Tom Jacobson

Crime Scene TapeOne of the more challenging aspects of hiring can be knowing when and how to conduct a criminal background check on a potential employee. In a previous article I noted how asking for such information during the application process is generally a good idea. However, a recent change in the law now prohibits Minnesota employers from inquiring into an applicant’s criminal history until after the candidate is selected for an interview, or if there is not an interview, after a conditional job offer has been made to the candidate. In essence, this change now bans the “Have you ever been convicted of a crime?” box on all Minnesota job applications.

Employers wishing to conduct criminal background checks on prospective employees should also familiarize themselves with the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions  Under Title VII of the Civil Rights Act of 1964. This guidance, which is based on established federal law, confirms that the use of criminal records when making employment-related decisions must be job-related and consistent with business necessity.

Despite these challenges, checking into a prospective employee’s criminal background is still a good idea. Doing so can help an employer avoid hiring an employee whose history indicates a potential threat to the company, its employees, customers, vendors or the general public. The trick is knowing what to ask and when to ask it.

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

March 6, 2013

Laws and sausage

Posted in Application Process, Background Checking, Conviction Records, Criminal History, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Non-Compete Agreements tagged , , , , at 10:00 am by Tom Jacobson

Laws are like sausages. Better not to see them being made.

John Godfrey Saxe

sausage440It’s that time of year again.  The Minnesota Legislature and Congress are both in session, so that gives us a chance to see what sort of legislation is being ground up and processed into what could become the new law of the land. Here are a couple of work-related bills worth watching.

Minnesota H.F. 506: This proposed law would void non-compete agreements in all but a few limited circumstances.  Generally speaking, it would bar non-competes between employers and employees.  This law would have a tremendous impact on any employer that uses non-competes as a tool for protecting their business interests.

Minnesota H.F. 690 /Minnesota S.F. 523: These bills would amend Minn. Stat. § 364.021 by prohibiting private sector employers from considering an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. This restriction already exists for public employers, but the new law would expand this to private employers as well.

H.R. 675: Introduced in the U.S. House of Representatives, this bill, dubbed the Part-Time Worker Bill of Rights Act of 2013, would amend the Family and Medical Leave act by removing from the law the requirement that before an employee is eligible for FMLA leave, s/he must work 1,250 hours during the year preceding the request for leave. Thus, if this bill were to become law, virtually any part-time employee with at least one year of service with an employer covered by the FMLA would gain FMLA leave rights.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. If you have concerns about the impact of this legislation, please contact your duly elected senators and representatives.

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

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

January 18, 2012

Pepsi popped for $3.1M in background check case

Posted in Application Process, Color, Race tagged , , , , , , at 12:24 pm by Tom Jacobson

Background checks are very important tools during the hiring process, but as Pepsi Beverages (formerly Pepsi Bottling Group) recently learned, asking the wrong questions can be discriminatory — and expensive.  In a January 11, 2012 press release the EEOC reported that Pepsi has agreed to pay $3.13 million to settle a case challenging its former background checking policy.

At issue was Pepsi’s policy which rejected applicants who had been arrested and were pending prosecution.  The policy also denied employment to applicants who had been arrested or convicted of certain minor offenses.  According to the EEOC, this policy disproportionately excluded black applicants from permanent employment and that it therefore violated Title VII of the Civil Rights Act of 1964.

In addition to the monetary settlement, Pepsi also changed is background checking policy, and it agreed to offer employment opportunities to victims of its former policy, supply the EEOC with regular reports on its hiring practices, and conduct Title VII training for its hiring personnel and managers.

Although using arrest and conviction records to screen applicants is not per se illegal under Title VII, it can be when it is not relevant to the job. Therefore, employers are urged to use them cautiously.

According to Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.” Schmid added, “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

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

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