Archive for April, 2012

Remember that Guilty Plea in College?

The EEOC Issues Guidance on Using Arrest and Conviction Records in Employment Decisions under Title VII.

The EEOC issued it newest guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 today.

Some of the high points from the summary:

The Guidance focuses on employment discrimination based on race and national origin.

The Guidance discusses the differences between arrest and conviction records.

  • The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

  • A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
  • An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

You can find the Guidance here.

Want to read more, go to

Hand over that Password!!!!!

As you know, there has been a lot of gnashing of teeth lately over employers requiring employees and candidates for employment to hand over their passwords to social media sites like Facebook and Google +.  You may recall that I wrote about a couple of Senators writing an open letter to the EEOC.  I even mentioned that a bunch of bills were pending at the federal level dealing with privacy in one way or another.  You can see the post here.

What I did not tell you was what was going on at the state level.  I thought I would.  Currently pending in the Michigan State Legislature is House Bill 5523.  You can see it here.  The bill is pretty short and is designed “ to prohibit employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; to prohibit employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts; and to provide remedies.”  Section 3 of the bill says:

Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.

(b) Discharge, discipline, fail to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

Violate this section and according to the bill, you have committed a misdemeanor and can go to jail for up to 93 days.  That’s right, YOU CAN GO TO JAIL!  And the person whose private access information you want to get can sue you for actual damages or $1,000, whichever is greater.  They also get costs and attorney fees just in case we needed to give the plaintiff’s bar incentive to take these cases.

Don’t think this bill will ever pass?  Think again.  Maryland has already passed a similar law.  You can read about it at Molly DiBianca’s excellent Delaware Employment Law blogCalifornia is about to become state number 2.

Post, Don’t Post, Don’t Post, Post would someone please make a decision!

Update:  If you want to see the Chairman’s message regarding the D.C. Circuit’s decision, see

OK the D.C. Circuit made a decision.  The D.C. Circuit has enjoined the National Labor Relations Board from implementing its new posting rule.  The D.C. Circuit granted the National Association of Manufacturers’ emergency motion for an injunction pending its appeal of the decision of the D.C. District Court.  The court noted that the Board had previously postponed operation of the rule and thus the Board’s argument that the rule should take effect during the pendency of the appeal had little merit.  The court indicated that the uncertainty about the Board’s decision to cross appeal mitigated toward preserving the status quo while the court decides if the Board has authority to issue a rule requiring posting of the poster.  Oral argument is set for sometime in September.

So what does that mean?  You don’t have to post the poster. Yet.

Oh, Oh. Could be I jumped the Gun!

Friday I told you all to get ready to get your NLRB poster up.  That’s what I get for having a guest blogger.  Now, in Chamber of Commerce v. NLRB the U.S. District Court for the District of South Carolina, that’s right South Carolina, has ruled that the new NLRB rule that requires that the new NLRB poster be posted is invalid. The court held that Section 6 of the NLRA (the “Act”) provides that rules promulgated by the Board be “necessary to carry out” the other provisions of the Act.  The court stated that “finding that the challenged rule is ‘necessary’ to carry out the provisions of the Act would require the court to ignore ‘the statutory language as a whole.’”  Finally, the court stated “After utilizing the tools of statutory interpretation, the court finds that the Board lacks the authority to promulgate the notice-posting rules.”

So, do you have to put the poster up?  Well, the Board has not said yet.  No word as of the posting of this post if the Board intends to delay the posting requirement yet again. In fact, the Board’s website still says April 30 is the day.   Stay tuned, I’ll let you know as soon as I know if anything changes.

Don’t Forget to Post the NLRB Poster

Special Thanks to Tara Kennedy for drafting this reminder.  Read more about Tara here.

By April 30, 2012, all employers covered by National Labor Relations Act must post a notice in the workplace to explain to employees their rights under the NLRA. If you are wondering whether the NLRA applies to you, the answer is likely yes. The NLRA covers private employers who have an impact on interstate commerce including manufacturing plants, retail centers, private universities and health care facilities.

The poster rule takes effect after being postponed twice because of lawsuits questioning the National Labor Relation Board’s authority to require employers to post the poster. The first court to hear the challenge was a district court in the District of Columbia. The district court determined that the Board had the authority to require employers to post the poster. However, the court also determined that the Board overreached its authority by making failure to post the notice an unfair labor practice and by possibly extending the six-month statute of limitations period for filing the unfair labor practice allegation.

You can read more about the NLRB Poster rule here and here. You can find a link to the required poster here.