Hiring, Discipline, Termination

On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit Discrimination in Employment Act (the “SCDEA” and available here), would create a blanket ban on using credit information for hiring purposes, with a narrow exception only where employers are required to use such information by state or federal law.
Continue Reading Proposed New York City Bill Would Ban Credit Checks from Hiring Process

On March 13, 2013, one year after we first introduced you to the idea that an individual’s unemployed status may be considered a protected characteristic, the New York City Council, voted into law legislation preventing companies from discriminating, in job advertisements or in the hiring process, against a job applicant who is unemployed. While New Jersey, Oregon and the District of Columbia have enacted similar laws, New York City has broken ground with Bill 814-A by granting unemployed applicants a private right of action, allowing them to sue alleged violators for damages in court – literally creating a new protected class of job applicants: the unemployed.
Continue Reading The Unemployed Are Now Protected Under The New York City Human Rights Law

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) draft Strategic Plan for Fiscal Years 2012 to 2016 includes an important consideration for employers: one of the EEOC’s nationwide priorities is to eliminate systemic barriers in recruitment and hiring. The EEOC intends to target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups. The EEOC found that racial and ethnic minorities, older workers, women and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages, including exclusionary policies and practices, the channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law. Because of the access EEOC has to obtain data and documents and potential evidence of discrimination in recruitment and hiring, the EEOC has determined that it is better situated to address these issues than individuals or private attorneys who have difficulties obtaining such information.
Continue Reading The EEOC Begins To Target Company Policies And Practices Pertaining To Recruitment And Hiring

In the recent California Court of Appeal decision of Pulli v. Pony International, LLC, the court clarified that Labor Code section 206.5 prohibits an employer from requiring an employee to execute a release of a claim for wages only and does not prohibit the employer from requesting that the employee waive his right to a jury trial by agreeing to arbitrate his employment-related claims. Although the court refused to rule on whether the arbitration agreement itself was enforceable (even though it expressly held that the provision was not automatically unenforceable), the decision appears to be at least a small victory for employers and plain language statutory constructionists.
Continue Reading California Court of Appeal Provides Clarification of Labor Code Section 206.5’s Restrictions on Releases of Wage Claims

On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on employers’ use of arrest and conviction records when making employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s guidance (the “Guidance”) is intended to codify and build on its prior policies concerning employers’ use of criminal records. Nevertheless, the Guidance, which is effective immediately, supersedes the EEOC’s prior policies on this issue.
Continue Reading The EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records

In what is reported to be a landmark decision, the United States Equal Employment Opportunity Commission (“EEOC”), in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, found for the first time that discrimination against transgender individuals constitutes sex discrimination in violation of Title VII. While not the first case to explore the notion that Title VII prohibits discrimination based upon gender identity and stereotypes, it is the first decision by the EEOC addressing the subject of transgender discrimination.
Continue Reading The EEOC Finds Discrimination on the Basis of Gender Identity (Against a Transgender Individual) a Viable Claim Under Title VII

The job market appears to be on an upswing, and with this upswing, and the advent of new technology, comes new challenges for employers and applicants alike. Potential employees may have online identities that many employers deem useful when investigating a job applicant. However, privacy settings on many social media sites allow an applicant to hide his/her online persona from these potential employers. As a result, a new trend in applicant background investigating has surfaced: asking an applicant for his/her username and password to social media sites during the interview process.
Continue Reading Password Protected – Proposed Social Media Privacy Legislation

Employers with sales teams in California need to get ready. California has a new commission contract law, AB 1396, which takes effect January 1, 2013. Under AB 1396, which amends California Labor Code section 2751, employers who pay commissions to their employees are required to enter into written commission contracts with employees. The contract must describe the method by which commissions are computed and paid. Employers must also provide a copy of the signed contract to each employee, and get a signed receipt from each employee. That’s the easy part. Here’s the tricky part. Going forward, when a contract governing commissions expires without being replaced but the employee continues work, the terms of the “expired” contract will apply to commissions until the parties sign a new agreement or until the employment is terminated. As a result, it will be important to get new commission contracts in place before or when the old ones expire.
Continue Reading New California Commission Contract Rules – It is Not Too Early To Get Ready!

All employers are familiar with race, gender, age, disability and many other protected classifications under the myriad of Federal and state fair employment practices acts. It now appears that there is a growing trend to add “unemployed” to that list. While unemployment rates appear to be on the decline, 8.3 percent of the population remains unemployed, up more than 3 percent from where it was less than four years ago. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available. So much so that some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this recent development in job advertisements, Congress and several state legislative bodies have started to amend their anti-discrimination laws to add “unemployed status” as a protected class.
Continue Reading Unemployed Status — The New Protected Class

By Michelle Sherman

Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.Continue Reading Legal Issues Surrounding Social Media Background Checks