On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") voted 4-1 to approve an updated Enforcement Guidance titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." The EEOC also issued a related Questions and Answers document. The newly issued guidance expands on Title VII guidance the EEOC issued more than 20 years ago.
According to the EEOC, the new guidance is predicated on and supported by federal court precedent concerning the application of Title VII to employer consideration of a job applicant's or employee's criminal history and incorporates judicial decisions issued since the passage of the Civil Rights Act of 1991. The guidance also updates relevant data and consolidates previous EEOC policy statements on the use of criminal history information. The EEOC includes in the guidance examples of steps employers can take to comply with Title VII when making employment decisions based on criminal history. The guidance concludes with recommended "best practices" for employers.
The enforcement guidance generally discusses liability based on disparate treatment, but it focuses on disparate impact liability. According to national criminal history data on which the EEOC relied in drafting the guidance, criminal background-checking policies have a disproportionate effect on racial and ethnic minorities. The national data provides the EEOC with a basis for investigating Title VII disparate impact charges challenging adverse actions based on criminal records.
The enforcement guidance:
Though the enforcement guidance is not binding on employers, it is nevertheless important for employers to examine their policies regarding background checks and applicants' or employees' criminal history because the EEOC will consider the document when enforcing Title VII. Further, although the guidance does not prohibit employers from asking about convictions on job applications or require that employers provide an "individualized assessment" for candidates screened out by a background check, the EEOC will look to see whether employers have these policies in place when investigating a charge challenging an adverse action based on criminal history. When reviewing their policies, employers must also consider risks beyond noncompliance with Title VII, such as liability based on negligent hiring.
If you have any questions associated with this guidance, please contact a member of the firm's Labor and Employment group.
On February 25, Francine Esposito, Erica Cagney, Michael Dell and Arielle Sepulveda will speak at a BLR FMLA Master Class entitled, "New Jersey - Advanced Skills for Employee Leave Management." They will discuss recent regulatory and legislative developments and best practices for FMLA compliance.
Francine Esposito and Arielle Sepulveda wrote an article, “Federal Contractors Will Have To Provide Paid Sick Time,” for Pratt’s Government Contracting Law. The article explains the policies federal contractors and subcontractors need to have in place by January 1, 2017 to meet the requirements of a recent Executive Order signed by President Barack Obama for paid sick time. Specifically, federal contractors and subcontractors must allow their employees to earn at least seven days of paid sick time each year if they do not already have policies in place that provide the same amount.
Patrick McCarthy, Dan Schwartz and Basil Sitaras authored a blog post, “NLRB Again Invalidates Arbitration Agreements,” that was picked up by New Jersey Law Journal. The post examines Acevedo v. Amex Card Servs. Co., Case No. 28-CA-123865, in which the National Labor Relations Board (NLRB) again found that arbitration agreements that include class action waivers are illegal and unenforceable under the National Labor Relations Act (NLRA).
Basil Sitaras, Daniel Schwartz and Patrick McCarthy co-wrote an article, "NLRB Again Invalidates Arbitration Agreements," for Law360. The article analyzes the decision in in Acevedo v. Amex Card Servs. Co., Case No. 28-CA-123865, in which the National Labor Relations Board held that arbitration agreements that include class action waivers are illegal and unenforceable under the National Labor Relations Act.
Mary Rogers and Mike Dell wrote an article, The Curious Case Of 'Borgata Babes',” for Law360. The article focuses on a decision in a lawsuit filed against the Borgata related to appearance standards that were required for both male and female employees who worked in certain areas of the casino. The decision is significant because it upholds the right of New Jersey employers to impose reasonable appearance, grooming and dress standards as long as they are applied in a nondiscriminatory manner and are consistent with the nature of the business.
Patrick McCarthy was recently quoted in article, “OSHA Flexes its Regulatory Muscle,” in Business Insurance on the U.S. Occupational Safety and Health Administration’s (OSHA) enhanced efforts directed at employers of all sizes to increase compliance with its workplace heath and safety regulations.
Francine Esposito and Daniel Schwartz were quoted in an article, "What Employees Can Legally Say on Facebook—and Get Away With," in Corporate Counsel. The two were quoted in connection with how the National Labor Relations Board acts as arbiter in issues between employees and companies. They offer best practices for employers to advise employees on acceptable social media behavior.
Patrick McCarthy was quoted in an article, “Former exec's conviction puts spotlight on safety for high-risk industries; Deadly mine explosion resulted in underwriting rethink by insurers,” in Business Insurance. McCarthy was quoted in connection with the significance of a case, in which Don Blankenship, the former CEO of Massey Energy Co., was acquitted of all felony charges, but convicted of a misdemeanor conspiracy charge for willfully violating U.S. mine health and safety standards that resulted in a 2010 explosion that killed 29 coal miners in West Virginia.
Greg Parliman was quoted in an article, “NJ High Court Could Bless Time Restrictions On Worker Suits,” in Law360. The article is about how New Jersey's high court will hear arguments about whether companies can contractually restrict the statute of limitations and reduce the time that workers have to file lawsuits, in a case that could give traction to an emerging tactic by employers to limit their exposure to workplace suits.
John DeSimone was mentioned in an article, “Executive Moves: Who hired whom this week,” in NJBIZ. DeSimone recently joined Day Pitney’s real estate and litigation practices from Porzio. He joined the firm with colleagues Peter Wolfson, Katharine Coffey, Douglas Henshaw and Catherine Nolan