April 2012

On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.

BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.

Continue Reading EEOC Issues Guidance on Criminal Background Checks

The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.

The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.

Continue Reading Transgender Status Now Protected Under Title VII

Employees in Michigan, Ohio, Kentucky and Tennessee who believe they have been wrongfully denied workers’ compensation benefits now have a new weapon – RICO. In Brown v. Cassens Transport Co., 6th Cir., No. 10-2334, 4/6/12, five employees sued their employer, a claims adjuster and a doctor alleging conspiracy to deny them workers’ compensation benefits. The Sixth Circuit Court of Appeals ruled that the lawsuit stated a claim under RICO.

RICO, the Racketeer Influenced and Corrupt Organizations Act, requires that an alleged victim identify four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Each element requires an additional analysis: an “enterprise” is marked by association and control; a “pattern” requires a showing of “continuity”, which is continuous and related behavior that amounts to, or poses a threat of, continued criminal violations; and “racketeering activity” involves the violation of designated federal laws. In addition, an alleged victim must allege that he was injured in his business or property “by reason of” a violation of RICO’s substantive provisions. Continue Reading Sixth Circuit Recognizes Potential RICO Claim If Employees Wrongfully Denied Workers’ Compensation Benefits

Social media sitesSocial media continues to gain attention in the employment law field.  From recent NLRB advice memoranda to Congress considering new legislation, to every employer now being advised to at least have a “policy” on social media, the news keeps pouring in. (Read this article by Eric Yaverbaum on The Washington Post blog, or this one on Mashable, or the many other articles online.)

Now, Maryland has become the first state to ban employers from asking for the social media site passwords of employees and applicants.  Relying on privacy concerns, the Maryland General Assembly passed legislation prohibiting employers from requesting or requiring usernames or passwords to personal online social media sites.  The legislation also bans an employer from taking disciplinary action, or threatening such action, if an employee or applicant refuses to disclose such information. Continue Reading Demanding Social Media Site Passwords Now Illegal in Maryland