Hiring, Discipline, Termination

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On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.  The proposed legislation would allow an employer to conduct a criminal history check after the conditional offer, and does not prohibit an employer from revoking the conditional offer on the basis of such findings.
Continue Reading Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

On Wednesday, June 10, 2015, the New York City Council approved a bill that will strictly regulate how employers in New York City (with at least four employees) may conduct criminal background checks.  Mayor Bill de Blasio is expected to sign the bill, which will go into effect 120 days after enactment.  The bill comes on the heels of the City’s ban on most forms of applicant background credit checks, which we reported on here, and which Mayor de Blasio signed into law on May 6, 2015.
Continue Reading NYC Council Votes to Sharply Restrict Employer Use of Criminal Background Checks

On April 16, 2015, the New York City Council (the “Council”) passed a bill (Int. 0261-2014) prohibiting employers from requesting or using the consumer credit history of an employee or job applicant when making employment decisions (the “Bill”).  More specifically, the Bill would make it a discriminatory practice to request or use the consumer credit history of applicants or employees by amending the City’s Human Rights Law to include the following provision:
Continue Reading NYC Council Votes to Ban Employers from Conducting Credit Checks

On January 20, 2015, the United States District Court for the Southern District of New York issued a decision plainly reminding employers of the importance of precisely drafting employment documents.  In the case of In re Lehman Brothers Holdings Inc., 2015 WL 247403 (S.D.N.Y. Jan. 20, 2015), the Court held that a prospective employee, who had never worked a day at Lehman Brothers Inc. (“LBI”), was not entitled to a $350,000 performance bonus detailed in an offer letter which LBI rescinded.  Significantly, in reaching this conclusion, the Court relied exclusively upon its reading of the offer letter itself.
Continue Reading New York Court Finds That Plaintiff Who Never Worked a Day For Company Is Not Entitled To A $350,000 Performance Bonus

In Weber v. Fujifilm Medical Systems USA Inc., et al., case numbers 13-4891 and 14-0206, decided on October 9, 2014, the U.S. Court of Appeals for the Second Circuit held that a former executive’s employer could use “after-acquired” evidence – evidence of an employee’s misconduct during the period of employment which the employer discovers after the employee’s discharge on other grounds – to confirm the nondiscriminatory reason for his termination.
Continue Reading Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial

On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California Fair Employment and Housing Act (FEHA).  In its decision, the Court also found that the affirmative defenses of unclean hands and after‑acquired evidence, which typically can limit an employee’s ability to obtain relief, are not complete defenses to FEHA claims brought by undocumented workers.  Under the Court’s ruling, employees who used false documentation to obtain employment not only may bring such a lawsuit but also can recover lost wages, emotional distress damages and attorneys’ fees, even if they actually were never legally entitled to work for the employer.
Continue Reading Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

The Equal Employment Opportunity Commission (“EEOC”) recently announced new guidelines that may impact the way employers conduct background checks and accommodate religious dress and grooming practices.
Continue Reading New EEOC Guidelines Regarding Employers’ Obligations With Respect to Background Checks and Accommodation of Religious Dress and Grooming Practices

The White House announced last week that President Barack Obama is preparing to issue an executive order prohibiting government contractors from discriminating against employees or job applicants on the basis of sexual orientation or gender identity.  Federal contractors are already barred from discriminating on the basis of race, religion, gender or national origin.  The expected executive order will add sexual orientation and gender identity to the list of protected categories.
Continue Reading Expected Executive Order Protecting LGBT Employees has Implications for Employers

The U.S. Senate recently passed the Employment Non-Discrimination Act (“ENDA”) (S. 815), a bill which would prohibit employers with 15 or more employees from discriminating against individuals on the basis of their sexual orientation or gender identity.  The ENDA passed by a vote of 64-32, but faces a tenuous future as it heads to the U.S. House of Representatives.
Continue Reading Employment Non-Discrimination Act Passes its First Test in the Senate

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.
Continue Reading Is Your Criminal Screening Process Compliant?