HRSentry Offers Online Training on FMLA

Posted on by jill

Anyone who administers human resources knows that the Family and Medical Leave Act (FMLA) can be one of their biggest headaches.  HRSentry® is offering online training that can help.  Next Tuesday, May 15th at 2:00 pm Eastern Time, we’ll present an hour-long webinar, Administering the FMLA.  HRSentry®  subscribers may register for free right from their dashboard in the Alerts and Reminders box.

The online training will cover FMLA basics as well as some of the more complex administrative intricacies including the law’s interplay with other laws.  Please join us!

EEOC Issues Guidance on Considering Arrest and Conviction Records

Posted on by jill

Last week, the HRSentry® blog covered the concepts of negligent hiring, retention and supervision.  All three are based on the premise that an employer is responsible for exercising reasonable care in vetting candidates and overseeing its employees properly to prevent employment situations that result in harm to a third party.  An example would be an employee with a history of violence, who then harms a customer or another employee, if the employer knew or should have known about the employee’s background.  Conducting background checks and asking about criminal convictions (when permitted by state law) can be prudent steps for employers in demonstrating reasonable care when hiring.  Bear in mind that arrest records are not evidence that criminal conduct has occurred (although behavior precipitating an arrest may sometimes be evaluated in making employment decisions if job-related.)

But the flip side to negligence is being overly exclusive and facing a different legal concern:  employers need to be thoughtful when establishing and implementing their employment practices so that there is no disparate treatment of or disparate impact upon groups protected by Title VII of the Civil Rights Act.

Disparate treatment occurs when an employer intentionally treats someone differently based on a protected characteristic such as race or national origin.  For instance, if an employer rejects an African American applicant based on his/her criminal record but hires a similarly situated White applicant with a comparable criminal record, there is disparate treatment and the employer is violating Title VII based on racial discrimination.

Disparate impact occurs when an employer has an employment policy or practice that seems to be nondiscriminatory on its face, yet has an adverse impact on members of a protected class that cannot be justified as job-related and consistent with business necessity.  Note that disparate impact may well be unintentional but is still considered discriminatory.

A recent case involving disparate impact generated a huge payout by Pepsi Beverages to the tune of $3.13 million (among other consequences) to settle a racial discrimination case.  The EEOC deemed Pepsi’s background check policy to be overly broad, resulting in a disparate impact on African American applicants.

The Equal Employment Opportunity Commission (EEOC) has just issued guidance to help employers fully understand and meet their responsibilities in a nondiscriminatory way when considering arrest and convictions records in their selection and retention policies.  The EEOC requires employers to take into consideration:

  1. the nature and gravity of the offense;
  2. the amount of time that has passed since the conviction and/or completion of the sentence; and
  3. the nature of the job sought

The three factors above are referred to as the Green Factors, resulting from the 1975 case of Green v. Missouri Pacific Railroad.  In that decision, it was held that it was discriminatory under Title VII for an employer to follow a policy of disqualifying for employment any applicant with a conviction “for any crime other than a minor traffic offense.”

Keeping these Green Factors in mind, employers need to be certain that any exclusion from employment based on a criminal conviction is justifiable for that particular position and is based on business necessity.  The EEOC Guidance provides plenty of examples of nondiscriminatory and discriminatory practices as well as examples specific to certain industries such a banking and schools.  It may seem long at first glance but is well worth the read.

That said, here are the EEOC’s best practice recommendations for employers when considering criminal record information when making employment decisions:
•    Eliminate policies or practices that exclude people from employment based on any criminal record.
•    Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
•    Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
•    Identify essential job requirements and the actual circumstances under which the jobs are performed.
•    Determine the specific offenses that may demonstrate unfitness for performing such jobs.
•    Identify the criminal offenses based on all available evidence.
•    Determine the duration of exclusions for criminal conduct based on all available evidence.
•    Include an individualized assessment (as explained in the EEOC Guidance.)
•    Document the justification for the policy and procedures.
•    Note and keep a record of consultations and research considered in crafting the policy and procedures.
•    Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
•    When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
•    Keep information about applicants’ and employees’ criminal records confidential.  Only use it for the purpose for which it was intended.

Some of the above steps may seem like overkill, something you don’t have time for, such as keeping records on how your related policies and procedures are crafted.  But using criminal record information must be done carefully so be sure to take that little bit of extra time to create and maintain supporting documentation.  It won’t take as long as you think, won’t occur often, and your documentation will give you peace of mind that your policies and practices are well crafted and aid you in making prudent and nondiscriminatory employment decisions.

DC Creates New Protected Status: Unemployed

Posted on by jill

Washington, DC just passed a law barring employers from discriminating based on unemployment status.  This action goes further than the states of Oregon and New Jersey which both simply prohibit employment advertisements that exclude unemployed people from applying.  Other states and cities are still considering anti-discrimination of the unemployed as well.  To read the context of the new law, click here.

Avoid Negligent Hiring, Retention and Supervision

Posted on by jill

Do you know when an organization can be sued for negligent retention or supervision of an employee? Responses to this recent HRSentry® survey question (updated weekly on your user dashboard) suggest that many folks don’t.

Basically, employers have a duty to exercise reasonable care when hiring and throughout the tenure of an employee such that a third party does not experience resultant harm.  There are several related terms:

Negligent hiring relates to an employer’s failure to take reasonable care during the hiring process to prevent exposing third parties to an unreasonable risk of injury.

Negligent retention occurs when an employer fails to be aware of an employee’s unfitness or, once aware, fails to take corrective action through such actions as coaching, reassignment, or termination.

Negligent supervision is closely related; it occurs when an organization fails to reasonably monitor or control the actions of an employee which result in harm.

Negligent training is a further variant that occurs when the training provided to an employee fails to prevent him or her from engaging in acts that harm the claimant; or the training fails to fix a pattern of behavior which leads to an injury.

Law suits involving negligent retention often also cite negligent supervision or negligent training as an alternate theory, as an employer that knows of an employee’s improper conduct should either terminate that employee, or take steps to penalize that conduct and/or train the employee not to engage in that conduct.

To prevent (and defend against) such a law suit, here are some steps your organization should take:

I.    Hire carefully:

  • Don’t fill a position just to fill it; it’s usually better to leave a position open until you have the right candidate;
  • Require application forms, not just resumes. As opposed to resumes created by the candidate, application forms highlight potential red flags to be explored further such as: employment gaps, why someone left a job, former supervisors to contact, and felony convictions, if appropriate and permitted by state law.  The employee must also sign that the information provided is true (and may be terminated if the information provided is later found not to be so);
  • Create a structured interview process and train interviewers to ask appropriate and legal) questions;
  • Conduct background checks and drug testing where appropriate;
  • Verify candidates’ credentials;
  • Always check references and document your findings.

II. Oversee employees responsibly:

  • Train supervisors to involve HR when dealing with difficult situations;
  • Train supervisors to manage difficult employees and to address inappropriate behaviors immediately with corrective actions;
  • Train supervisors to communicate performance standards and to conduct honest and constructive performance evaluations;
  • Train supervisors in all of your policies and make sure they are followed consistently across the organization;
  • Investigate all complaints about an employee promptly; take quick corrective action when needed;
  • Train employees in all of your policies and procedures including safety and emergency procedures, anti-harassment, anti-retaliation, professional conduct and other policies designed to maximize their and the public’s well-being.
  • Immediately terminate an employee who poses a risk or threat to the safety of others; involve law enforcement when appropriate.

III. Document methodically all the steps your organization takes to ensure the responsible and careful employment actions, including any corrective measures.