Anyone who has spent any time recruiting knows that it is difficult to sift through a pile of applications without finding several job seekers with criminal convictions. About 3.2 percent of the U.S. adult population, or one in every 31 adults, was in the nation’s prisons or on probation or parole at the end of 2006.   Getting Out of Prison and Into a Job posted by Eve Tahmincioglu highlights the job search difficulties for convicted felons. It also reports that 700,000 people are released from prison annually, two-thirds of which are back in prison within 3 years. Similar demographic facts are compiled by Dr. Ira Wolfe in his book The Perfect Labor Storm 2.0 .

Many employers shy away from this pool of available labor even though it might be socially compelling to give someone a "second chance".  Federal and State governments have reacted to this situation by creating tax incentives for employers who hire convicted felons.  A federal tax credit of $2,400 is available for employers who hire ex-felons. Philadelphia offers a $10,000 tax incentive. Both programs have minimum employment periods.

Employers must weigh the following with regard to applicants with criminal convictions:

  • Prohibited Employment: State and federal laws may prohibit employment of a convicted felon in certain jobs such as financial services, teaching, adult and childcare, law enforcement, etc.
  • Negligent Hire:  Many states recognize legal claims by customers and employees when an employer negligently hires an employee when the employer knew or should have known that the employee would pose a safety risk to others. Applicants with criminal convictions for violent crimes may fall into this category.
  • Disparate Impact Discrimination: The EEOC’s guidance on the consideration of arrest records notes that blanket exclusions from hiring will likely have an adverse impact on minorities. Employers should establish a business justification for use of criminal record by evaluating the nature and gravity of the offense, the time that has passed since the offense, and the requirements of the job sought.
  • Limitations on the Use of Criminal History: Section 9125 of Pennsylvania’s Criminal History Record Information Act states that felony and misdemeanor convictions may be considered by an employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied. Employers must give a rejected applicant written notice that the criminal conviction was used in whole or in part as the basis for the employment decision.

As gas prices approach $4.00 per gallon, more employees desire the telework options that have typically been of greater interest to workers for “family reasons”. Companies that formerly dismissed telework programs now find that attracting and retaining employees may depend on increased flexibility around attendance at the office. While productivity and IT issues abound, there are also some important legal considerations, including the following:

  • Worker’s Compensation: Employees who work at home have worker’s compensation coverage for injuries that occur in the scope of their employment. Employment scope excludes activities that are not in furtherance of the employer’s business or that are purely for the personal convenience of the employee.   Working at home blurs this distinction.

A carefully drafted policy can address some of the legal concerns including the following:

  • The class of jobs eligible for the telework based on an analysis of the position’s essential functions.
  • Limits on employees in those classes of eligible jobs based criteria such as performance, disciplinary record, time with company and time in the job realizing that ADA accommodation may trump these requirements.
  • Job performance and productivity standards including the consequences of not meeting these standards.
  • Restriction defining the “workday” and the “work location”
  • Prohibitions on performing personal activities while working during the workday.
  • The system for tracking hours of work including clear delineation of work/nonwork time and settling limits on overtime.
  • Compensation for travel to and from company office.
  • Safety mandates for the home work environment.
  • Protections for IT and other confidential/proprietary information.
  • Systems for addressing problems that arise when the employee is fired or quits.

Kris Dunn at the HR Capitalist has a post on The "Love Broker" – Making Your Employees Sign A Workplace Relationship Prenup… Are such contracts really necessary and do they offer any legal protection? 

While taboos on workplace romance may have eased, legal and morale problems persist.   Office surveys show that 40% of workers admitted they have dated a co-worker. However, the same survey states that 84% of businesses do not have policies on workplace romance. David Javitch notes in his post on Dealing with an Office Romance, that there may be even bigger workplace risks for morale problems created by perceived favoritism and the looming sexual harassment claim. Courts can hold an employer liable for the sexual favoritism created by a supervisor’s romantic involvement with a subordinate. Sexual harassment claims remain high with the EEOC reporting over 12,500 claims filed in 2007 resulting in EEOC settlements totaling almost $50 million. Million Dollar verdicts are common.

“Love Contracts”  are usually called Consensual Relationship Agreements by the lawyers who draft them.  Agreements are typically used when a supervisor is dating a subordinate but can also apply to co-workers.  The agreements attempt to provide the employer with a defense to a a sexual harassment claim by documenting that the relationship is consensual (not unwelcome).  Employees view them as intrusive and HR managers loath monitoring the workplace rumor mill to determine if a contract is necessary.

Love Contracts have limited utility absent a broader policy and training approach. Employers should consider the following in addressing workplace romances:

Implement a Strong Policy against Sexual and other Harassment

The EEOC has issued extensive guidance on sexual harassment policies and their ability to reduce an employer’s liability for harassment.   One of the most critical components of such a policy is an effective complaint procedure to redress claims of harassment. The risk of sexual harassment claims skyrockets when supervisors fish off the company dock.   Sexual harassment by a supervisor means automatic liability for a company, if it culminates in a tangible employment action like termination or discipline.

Develop a Policy on Office Romance without calling it "Fraternization"

The D.C. Court of Appeals in Guardsmark v. NLRB overruled an employer’s no fraternization rule because it violated the rights of employees to engage in concerted activities. The court examined an employer’s policy that stated employees must not “fraternize on duty or off duty, date or become overly friendly with client’s employees or with co-employees.”  The court ruled that the generic term “fraternize” was overly broad because employees might infer that it prohibited both romantic relationships (which the employer could reasonably regulate) and fraternal relationships involving the discussion of terms and conditions of employment (that are protected by section 7).

Train Supervisors

Supervisory training on sexual harassment can demonstrate a company’s good faith attempts to comply with the law. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

Proactively Evaluate and Confront Situations

Most employers are content to sit passively and watch an office romance unfold. Many will not act unless it "becomes a disruption". Consider some proactive steps. If the romance is between co-workers, make sure they understand that it cannot affect productivity. If it is between a supervisor and subordinate, evaluate whether there should be changes in the reporting structure. Do not automatically transfer or reassign the female in the relationship or you will risk a discrimination claim.

Immigration related enforcement activity is on the rise making HR professionals question their company practices for immigration compliance including completion of the I-9 Form.    On May 12, 2008, a kosher meatpacking plant in Iowa was the site of the largest immigration raid ever held which netted 300 suspected illegal aliens.   The joint ICE and DOL operaton targeted aggravated identity theft, fraudulent use of Social Security Numbers and other crimes.  Similar raids have been held in Pennsylvania like the one at Iridium Industries’ Artube Division in East Stroudsburg, Pennsylvania where 81 employees were arrested in an immigration raid.  

The immigration raids are conducted by the U.S. Immigration and Customs Enforcement (ICE) as part of its "Worksite Enforcement Initiative". These raids target "egregious employers involved in criminal activity or worker exploitation." However, the scope of ICE operations might suggest more as it operates 17 teams making 15,049 immigration arrests.  ICE also reports that over 90 individuals in company supervisory chains were arrested on criminal charges including harboring illegal aliens, knowingly hiring them and other immigration related violations.

The INS has several mechanism to discover the employment of illegal workers including the following:

  • Social Security Mismatch Letters: Coordination between the IRS and the SSA began in 2002 with the issuance of "mismatch letters" that require an employer to check and report on discrepancies between SSN# and W-2 forms. 
  • DOL and OFCCP Audits: Several government agencies conduct random audits of employer’s I-9 forms as a part of their other audit activities.
  • Proposed Electronic Employment Verification System (EEVS): E-Verify allows employers to check whether there is a match between a prospective employee’s name and social security number.

The consequences to a business and individuals for noncompliance with immigration laws including correct I-9 reporting are significant. The following is a partial list of penalties:

  • For employers who fail to properly complete, retain, or make I-9 Forms available for inspection, fines range from $100 to $1,100 per individual I-9.
  • For employers who knowingly hire or knowingly continue to employ unauthorized workers, civil penalties range from $250 to $11,000 per violation.

Employers may be liable for injuries and damage where an employee’s job-related cell phone use contributed to the accident. Whether the cell phone use is within the scope of employment depends upon many factors including the employee’s job duties, who provided the phone, when the accident occurred, whether it was a business call, and whether the employee was complying with the employer’s policy on cell phone use.

PennDOT statistics show there were 5,715 accidents linked to the use of hand-held phones and 367 accidents attributed to hands-free phones in Pennsylvania from 2002 to 2006. Mark Stuckey of MSNBC.com reports on a new study that concludes that hands-free phones can reduce the number of traffic fatalities and accidents. The study by Jed Kolko, a fellow at the nonpartisan Public Policy Institute of California, estimates that the 4,000 annual traffic fatalities in California could be reduced by 300 people as a result of a pending hand-held cell phone ban for California drivers. According to the Insurance Institute for Highway Safety, many states are adopting laws banning hand-held cell phone use. Pennsylvania state laws don’t address cell phone use, but many local ordinances prohibit all but hands-free operation.

A business’s liability can be significant.  For example, a Georgia employer paid $5.2 million dollars to settle a claim related to an employee’s use of a cell phone while driving.  Businesses should manage their potential liability by adopting a policy on cell phone use and then enforcing it. A policy should consider addressing the following:

  • Banning cell phone use while driving for all employees or classes of employees depending on job responsibilities.
  • Mandating that employees comply with all applicable state and local laws governing cell phone use.
  • Requiring employees to use only hands-free devices while driving.
  • Providing company cell phones with hands-free features.
  • Prohibiting the use of text message and e-mail features while driving.
  • Providing safety training on cell phone use including:
    • Requiring employees to pull off the road to make or take phone calls.
    • Instructing employees to avoid or to terminate phone calls involving stressful or emotional conversations.
    • Prohibiting cell phone use in adverse weather or difficult traffic conditions.
    • Restricting driver cell phone use to brief conversations.

Update:  We need frequent reminders that the policies we write as HR professionals have real life implications.  Here is a link  to bring this point home.  Employees should also consider their own civil, criminal and emotional liability:  Driver Hits, Kills Pedestrian While Texting.

Update 1/12/09:   Ban Cell Phones While Driving, Safety Council Says

The EEOC announced a $1 million settlement for sex discrimination against men arising from a restaurant’s preference for hiring and promoting only women into bartending positions. The lawsuit highlights the tension between a business’s marketing efforts and legal compliance. What marketers may pander to in the name of “customer preference,” employment laws prohibit as discrimination.

Businesses spend millions of dollars to find out what motivates customers to buy by evaluating their preferences. Demographics play an important role in tying the right product to the right market. Also critical is having the “right” salesperson to make the pitch.

A business’s natural, but unlawful reaction may be to make staffing decisions based upon appealing to a target demographic group.  The “customer preferences” for the right salesperson cannot create employer hiring or promotion criteria for someone of a particular gender, religion, age, etc. Courts have universally rejected this form of customer preference, except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ). A BFOQ may exist where it is necessary for the purpose of authenticity or genuineness, such as, a model for gender specific clothing. 

In its lawsuit, the EEOC said that Razzoo’s, a Cajun food restaurant chain, refused to hire or promote men to the position of bartender. The EEOC had evidence that the restaurant’s management set up and communicated to managers by e-mail, a plan for an 80-20 ratio of women to men behind the bar. Male applicants and servers were told that management wanted mostly “girls” behind the bar. Men who worked as servers at the restaurant were generally denied promotion to bartender because of their gender. The few men who were promoted to bartender were not allowed to work lucrative “girls-only” bar­tend­ing events.

The EEOC’s settlement with Razzoo shows a developing trend in the agency of making an employer improve its approach to human resources. In addition to paying $775,000 to be divided among a class of male applicants, male servers, and male bartenders who were discriminated against, Razzoo’s was also required to retain the services of a human resources consultant or to develop an in-house human resources department spending no less than $225,000 for these human resources services.   Razzoo’s agreed to injunctive relief requiring training on equal employment opportunity for all its employees, the posting of an anti-discrimination notice, and EEOC monitoring of employee complaints of discrimination.

Suzanne M. Anderson, EEOC supervisory trial attorney and lead counsel on the lawsuit, summed up the EEOC’s position by saying that, "Some may think that sex sells drinks, but gender ratios are illegal… Razzoo’s decision to hire and promote by gender is a clear violation of federal law. A hiring ratio is illegal whether it is 80-20 whites to blacks or 80-20 women to men."   It will be interesting to see how far the law will go in policing an employer’s efforts to appease a customer preference. For example, would an OBGYN practice be subject to an EEOC lawsuit if it specifically hired a female doctor based on the preference of its patients?

On January 28, President Bush expanded leave entitlements under the federal Family and Medical Leave Act (FMLA) through his signing of the National Defense Authorization Act (NDAA) for Fiscal Year 2008. (The NDAA is an annual act that authorizes various requirements for National Defense.) The FMLA leave provisions incorporated into the law are designed to provide assistance to service members and their families with some of the hardships that can result from military service. The two new categories of leave are "caregiver leave" and "active duty leave." It is important to note that only the "caregiver leave" portion of the law is effective immediately. The "active duty leave" portion will not be effective until the Secretary of Labor publishes guidance and procedures for such leave.

Caregiver Leave: This portion of the NDAA allows a "spouse, son, daughter, parent or next of kin" to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard and Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list, for serious injury or illness. Employers may still implement FMLA procedures like requiring substitution of paid leave and notice, for example. The leave is available on an intermittent basis, but is only available for use in a single 12 month period.

Active Duty Leave: This category of leave would address situations in which an employee faces "any qualifying exigency" arising out of the fact that the "spouse, or son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty." The term "any qualifying exigency" has not yet been defined by the Secretary of Labor and this provision will not be effective until definitive regulations are published. In the interim, the Department of Labor encourages employers to use good faith efforts to provide active duty leave to qualifying employees.

Employers will need to amend their FMLA policies to incorporate the new provisions and add the insert to their current FMLA poster.

In Federal Express Corp. v. Holowecki, the United State Supreme Court ruled that the EEOC’s Intake Questionnaire adequately meets the requirements of a “Charge” to trigger an employee’s rights to sue his or her employer in court. The plaintiff submitted to the EEOC an Intake Questionnaire with an affidavit contending that her employer was engaging in age discrimination. The EEOC did nothing with the Questionnaire for six months. The employer was not notified and no charge number was assigned. The employee subsequently filed a Charge of Discrimination and proceeded almost directly to court avoiding the EEOC’s conciliation process entirely. 

Justice Thomas the former Chairman of the EEOC points out the practical problems with the lack of a clear definition on what constitutes a Charge and the implications on notice to employers. His comments are somewhat ironic since the crux of the problem is the EEOC’s failure to turn the Intake Questionnaire into a Charge of Discrimination and mail it out to the employer. The Court does not hold the EEOC accountable for these administrative failings by allowing a vague assertions to trigger the judicial process:

The implications of the Court’s decision will reach far beyond respondent’s case. Today’s decision does nothing—absolutely nothing—to solve the problem that under the EEOC’s current processes no one can tell, ex ante, whether a particular filing is or is not a charge. Given the Court’s utterly vague criteria, whatever the agency later decides to regard as a charge is a charge—and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case. The Court’s failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency.

The EEOC issued a Memorandum addressing the timeliness of notice to employers noting that an Intake Questionnaire may constitute a Charge if it contains a “clear request for the agency to act.” The Memorandum also notes that notice of a charge must be sent to respondents within 10 days of receiving the charge.

The National Labor Relations Board (NLRB or Board) issued an important decision concerning employee usage of company e-mail systems for purposes of union solicitation. In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (2007), the Board narrowly held, by a 3-2 majority, that the Company did not commit an unfair labor practice by maintaining a policy that prohibited the use of e-mail for all “non-job-related solicitations.” The Board held that employees have no statutory right to use their employer’s e-mail system for Section 7 purposes (such as union organizing or engaging in other protected concerted activities). Additionally, the Board modified its approach regarding discriminatory enforcement of employer policies related to solicitation, postings on employee bulletin boards, and other forms of employee communications.

This case raises implications for every employer who either (1) has a union and is concerned about union or employee usage of e-mail or (2) is non-union and wishes to utilize its no solicitation and employee communication policies to help lawfully limit outside solicitations. If a non-union employer waits until union activity actually emerges and then revises its policies, those revisions may be deemed by the NLRB to be unlawfully motivated. Changes to a company’s employee communications policies, particularly no solicitation policies, should be carefully reviewed for legal compliance. 

The Guard is a unionized newspaper publisher. The Company’s employee communications systems policy (CSP) stated as follows:

Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.

Continue Reading NLRB Limits Right to Use Company E-Mail for Union Organizing