Earlier this year, we posted a checklist outlining key issues and action items for compliance in 2015. With the first quarter coming to a close, we want to remind you of a few important items from that checklist that required changes to your policies and practices, as well as alert you to a new item that requires immediate action.
Change FMLA policy to reflect same-sex spouses.
Effective March 27, 2015, the definition of “spouse” under the FMLA will be amended so that an eligible employee in a legal same-sex marriage will be allowed to take FMLA leave for his or her spouse. Make sure that you change your FMLA policies and practices to reflect this new definition.
Confirm employment applications and processes comply with “Ban the Box.”
As of the first of this year, Illinois employers must wait until an interview has been granted (or, if no interview, until a conditional offer of employment has been made) before asking about criminal history. New Jersey’s new law, effective earlier this month, requires companies to wait even longer. Employers hiring in these states — as well as in other states with similar laws — should ensure that employment applications do not contain criminal background questions and that questions regarding criminal background are not asked until it’s legal to do so.
Comply with new Illinois pregnancy accommodation rules and notice requirements.
As of January 1st, Employers in Illinois are required to provide reasonable accommodations to pregnant employees and applicants who ask for them, to post a notice in the workplace regarding pregnancy accommodation rights, and to include language relating to such rights in their handbooks. Make sure your team is aware of these requirements and that any necessary changes to policies and practices have been made.
It’s officially January, which means that Illinois’ new “Ban the Box” requirements – which prohibit most employers from asking about criminal history on employment applications and in the initial stages of the hiring process – are now the law.
The “Job Opportunities for Qualified Applicants Act” prohibits Illinois employers with more than fifteen employees (in the current or previous year) from asking about criminal convictions on employment applications. The new law also prohibits employers from inquiring about an applicant’s criminal history until the applicant has been deemed a qualified applicant and notified of a scheduled interview, or, if there is not an interview, until a job offer has been made. Exceptions apply if an employer is required to exclude applicants with certain criminal convictions under federal or state law, if criminal convictions would automatically disqualify an applicant from certain positions, or if an employer hires individuals under the Emergency Medical Services Systems Act.
As noted in our previous post, Illinois employers should check their employment applications and review their hiring policies to ensure compliance with the new law.
As fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.
Tuesday, September 9, 2014
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER
• Supreme Court developments, including the important decisions in Noel Canning and Hobby Lobby
• The EEOC’s new challenges to release agreements and steps you should take to ensure enforceability
• What Illinois and New Jersey employers need to know about new laws limiting questions about an applicant’s criminal record
• Developments under the Americans with Disabilities Act, including working at a home as a reasonable accommodation
• New guidance on how far employers need to go in accommodating religious beliefs and practices
• The Supreme Court and IRS weigh in on taxability of severance payments and health insurance reimbursements
• What to expect from the DOL’s fresh look at overtime requirements
• Continued rollout of the Affordable Care Act in the coming year
• Key changes to requirements for federal contractors
CLE Credit Available | This program has been submitted to the HR Certification Institute for review.
Contact Annie Darmofal at 312.476.7626 or firstname.lastname@example.org
Effective January 1, 2015, most Illinois employment agencies and private employers will be prohibited from asking about applicants’ criminal background until the applicant reaches the interview stage of the hiring process, or, if there is no interview, until the applicant has been given a conditional offer of employment. The Job Opportunities for Qualified Applicants Act (House Bill 5701) provides very limited exceptions. For most Illinois employers, the Act will require changes to the application process.
The Illinois Job Opportunities for Qualified Applicants Act is the latest in a surge of “Ban the Box” legislation around the country. Illinois becomes the 5th state to enact such “Ban the Box” legislation that covers private employers, joining Hawaii, Massachusetts, Minnesota and Rhode Island. Seven cities (Baltimore, Buffalo, Newark, Philadelphia, Rochester, Seattle, San Francisco) also have similar provisions.
Illinois employers and employment agencies should review application materials to remove questions about criminal history by the end of the year.
Over the last couple years, the EEOC has been taking aim at companies that use credit checks as part of the application process, arguing that excluding applicants based on credit checks has a disparate impact on minority applicants.
However, on Wednesday, the U.S. Court of Appeals sitting in Ohio dealt the EEOC a significant setback. In its decision in EEOC v. Kaplan Higher Education Corp., the 6th Circuit Court of Appeals found that the EEOC’s expert witness could not be relied upon to establish discrimination because his analysis was “unreliable”. As such, the appellate court upheld the lower court’s ruling in favor of Kaplan. The appellate court’s opinion closes with a damning statement regarding the EEOC’s credit check cases: “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding [the expert’s] testimony.”
It remains to be seen whether the EEOC will heed the court’s admonition or continue to push forward. Regardless, unless and until the EEOC finds an alternate way to establish that credit checks have a disparate impact on minority applicants, the Kaplan decision gives employers a strong response to any claim that relying on credit checks constitutes discrimination.
On Monday, the Federal Trade Commission and the Equal Employment Opportunity Commission issued joint publications offering informal guidance on conducting background checks that comply with the Fair Credit Reporting Act and anti-discrimination laws. The overlapping rules and jurisdiction of these two agencies in this area of the law can sometimes be confusing for employers.
The first brochure, Background Checks: What Employers Need to Know, offers nuts-and-bolts guidance for employers to consider when investigating the backgrounds of applicants and employees for use in hiring, retention, promotion, and reassignment decisions. The publication also reminds employers to review local laws regarding background reports and information because some states and municipalities regulate the use of that information for employment purposes in addition to what federal law requires. The brochure also has many helpful links to other EEOC and FTC guidance in this area.
The second brochure, Background Checks: What Job Applicants and Employees Should Know is geared toward job applicants and employees.
The EEOC press release describes the joint guidance as “a unique opportunity for the agencies to work together to provide user-friendly technical assistance to our stakeholders.” Given that the EEOC has not been particularly successful in the cases it has brought against companies for allegedly using background checks improperly, it is likely that the agency also has decided that getting employers to voluntarily alter their practices by providing additional guidance to them may be a better enforcement strategy.
This year, LP’s Labor & Employment attorneys tried something different with our annual “Employment Law Update” and hosted the program as a webinar. The new format allowed us to record this year’s program and make it available for all our blog friends, colleagues and clients who were unable to participate. LP labor and employment attorneys Peter Donati, Laura Friedel and Kenneth Kneubuhler highlighted recent updates in labor and employment law and tips to keep your workplace practices current.
You can find the recording here and the presentation materials here.
To give you an idea of what topics are covered in this year’s “Employment Law Update” here are the topics we discussed:
•The impact of recent Supreme Court decisions on supervisor liability and the burden of proof for retaliation claims
• Trends involving arbitration agreements: Will they prevent class claims? Should your business be using them?
• Same sex marriage: How it affects employee rights under the FMLA and benefit plans
• Recent Illinois cases involving non-compete agreements. Will your agreements be enforceable when you need them?
• New developments at the National Labor Relations Board that affect both union and non-union workplaces
• How to properly use background checks to avoid scrutiny by the EEOC and avoid violating state laws
• Current wage and hour issues, including developments involving interns and independent contractors
• Other important state law trends, including laws on concealed weapons, medical marijuana, and social media passwords
The EEOC’s efforts to clamp down on the use of criminal record information were dealt a significant setback on August 9, 2013 when the U.S. District Court of the District of Maryland threw out a case that had been brought against Freeman, a service provider for corporate events with offices around the country (EEOC v. Freeman [09-2573] Memorandum Opinion and Order 8.9.13). The case grew out of the EEOC’s longstanding concern that the indiscriminate use of criminal record information by employers to screen out applicants has a disparate impact and is therefore unlawful under Title VII. The EEOC believes employers using criminal record information must disregard arrest information and only use conviction information after considering the age of the offense, the seriousness of the offense, and the relationship of the offense to the position being sought. Applicants also must be given an opportunity, in the EEOC’s view, to explain or correct the information in their records before being rejected. However, in the Freeman case, the court said the EEOC had failed to show any disparate impact as a result of the company’s hiring practices. The court tore apart the EEOC’s expert reports, calling them “rife with analytical errors” and “laughable.” Even if evidence of a disparate impact had been present, the court said that the EEOC failed to link such evidence to any particular practice of Freeman and could not simply rely on the “collective results” of Freeman’s hiring process. “The story of the present action,” according to the court, was “that of a theory in search of facts to support it.” The Freeman decision is an embarrassing outcome for the EEOC that will undoubtedly make the agency’s enforcement activities in this area more difficult and provide a road map to victory for future defendants.