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, 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.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.
Rachel Gonzalez was mentioned in an article, "Unions set to begin voting on NJ Transit rail contract," in NJ.com. Gonzalez provided an explanation of the approval process concerning union agreements in connection with the NJ Transit rail unions voting on the proposed settlement to avert a strike.
Kate Coffey, Rachel Gonzalez and Peter Wolfson were mentioned in the "New Partners Yearbook 2016" in New Jersey Law Journal. This is the Law Journal's annual yearbook devoted to recognizing both newly promoted partners and newly hired lateral partners at law firms in New Jersey.
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.