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Would Your Criminal Background Checks Survive EEOC Scrutiny?
 Don't tell me criminals are in a protected class now! No, but according to the Equal Employment Opportunity Commission (EEOC), the use of criminal records in hiring by employers can result in discrimination against individuals in protected classes (particularly race and national origin). New guidance from the EEOC recommends employers develop a consistent policy for screening applicants for past criminal conduct. Employers should
- Ask for and rely on information relating to convictions only, not arrests.
- Avoid a strict ban on hiring individuals with a criminal record (unless federal law requires a ban for a given position).
- Treat all applicants with similar criminal histories in a similar manner.
- Consider the nature of the crime. Disqualify only those that may demonstrate unfitness for a particular position, i.e., ensure convictions are job-related and disqualification of the candidate is consistent with business necessity.
- Consider the time that has elapsed since the conviction.
- Perform individualized assessments of each candidate, evaluating any criminal record in relation to the position applied for. For instance, did the applicant perform the same type of work, post conviction, with another employer? Have there been rehabilitation efforts, such as education and training? Are there employment or character references particular to the position sought?
- Maintain confidentiality of criminal records.
Beware! The EEOC reports it intends to investigate employers accused of improperly using criminal history in employment decisions. Now is the time to tune-up your background check process by reviewing application forms, screening procedures and hiring policies to ensure they follow the EEOC guidance. For more information, see the EEOC's guidance Q&A.
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Regular Attendance May Be an Essential Job Function
The federal Ninth Circuit court (which covers Oregon and Washington) has rejected a nurse's lawsuit against Providence St. Vincent Medical Center. The nurse had requested a waiver from her employer's limit of five unplanned absences as an accommodation of her disability. The court held that Providence established that regular attendance was an essential function of the nurse's job, and therefore the Medical Center was not obliged to grant an accommodation that would exempt the nurse from the limit.
The employee was a neonatal intensive care nurse. Under the employer's attendance policy, employees were permitted to take up to five unplanned absences during a rolling 12-month period. The employee had a history of exceeding the maximum allowance when she was diagnosed with Fibromyalgia. The hospital attempted to work with her by allowing her to change her schedule during flare-ups of her condition. The employee continued to miss work despite the accommodation, and she requested an exemption from the policy. She refused the hospital's offer to transfer her to another position and was ultimately fired for continued attendance problems. The employee sued the hospital, claiming the hospital failed to accommodate her under the Americans with Disabilities Act (ADA).
The court considered the hospital's written job description (which required consistent job attendance), the effect of absences on patient care, the limited number of staff available to fill in when the employee was absent, and the hospital's prior efforts to accommodate the employee. The court concluded that allowing the employee to miss work whenever she needed to was not a reasonable accommodation.
What does the court's decision mean for employers? Regular job attendance is an essential function of most (but not all) jobs and a written job description should reflect this requirement. Employers must attempt to reasonably accommodate disabled employees before enforcing a company attendance policy if absences are related to the disability. Reasonable accommodations may include a different or flexible work schedule. However, employers are not obligated to provide the employee's chosen accommodation, nor an accommodation that poses an undue hardship to the employer.
If you have questions about accommodating a disabled employee or any other employee relations issue, please contact us!
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AT&T Suffers $5 Million Verdict for Religious Discrimination
A former employee of AT&T was awarded $5 million in punitive damages and $120,000 in lost wages based on her claims of religious discrimination. After her conversion from Christianity to Islam, the employee began wearing a head scarf, or hijab, and attending Friday mosque services. She claimed her work environment turned hostile, with coworkers making harassing comments about her religion, such as calling her a "towelhead" and "terrorist," and asking if she was going to blow up the building. Her manager repeatedly told her to remove the hijab and insulted her for wearing it.
The employee alleged nothing happened despite reporting the harassment on the employer's "help line." She filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming the harassment had continued for three years. Her EEOC complaint angered her coworkers, culminating in an incident where her manager allegedly grabbed her headscarf and exposed her hair during a staff meeting. AT&T terminated the employee after rejecting her requests for a transfer or for removal of her manager.
At trial, the employer defended AT&T as a recognized leader in workforce diversity with an excellent anti-discrimination policy. Trial testimony showed that the company had not followed its own anti-harassment policy, however, and the jury found in favor of the former employee.
Don't suffer the same fate as AT&T. Employers are required to reasonably accommodate an applicant's or employee's religious observance or practice unless the request imposes an undue hardship because of significant cost or expense. Accommodations include shift changes, use of leave, and permission to wear religious jewelry or clothing. In addition, employers should have an anti-harassment and discrimination policy that is not only distributed to all employees, but also followed.
Please contact us if you would like assistance drafting or revising a policy or procedure.
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Quickie Union Election Rules Now on Hold, Too
We reported in last month's newsletter that the National Labor Relation Board's (NLRB) "quickie" union election rules were still scheduled to go into effect on April 30th (even though the NLRB's posting requirement was put on hold). The new election rules significantly shortened the time between the filing of a union representation petition and the date of the election. Now the "quickie" election rules are also in doubt. A federal court in the District of Columbia determined that the NLRB lacked the required three-member quorum when it adopted the election rule (only two of the existing three board members voted to adopt the rule). The NLRB is likely to appeal the ruling or try again with a full board. We will keep you posted on the status of the rule. Please contact us if you have questions about union organizing efforts, employee engagement, how to train supervisors to lawfully respond to organizing activity, or any other labor relations issue!
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HR Metric Calculators Available on UEA Website
It's more important than ever for employers to understand the cost of their HR function. By linking your HR activities directly to your company's business Return on Investment (ROI), you can better establish the impact that HR has on your company and take a strategic approach to planning and managing costs. HR Metrics provide the tools and benchmark information to start that process!
Our HR metric calculators will allow you to compute twelve important factors, including: revenue and profit per employee, turnover rate, absence rate, cost per hire, and time to fill jobs. Each user-friendly calculator comes with a description of the measure and tells you exactly what HR data you will need to use it. To find out more about the calculators and to get started using them, visit our website.
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Upcoming Workshops
First Aid/CPR Wednesday, June 6 Learn the techniques that could save a co-worker's life in an emergency! Negotiation Skills Tuesday, June 12 Get what you want without making enemies. Oregon OSHA 100 Wednesday, June 20 Cut costs by improving your company's safety and health program! Visit our training page to learn more.
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