The ABC’s of GeTTinG To Know You

Presented by: Lynn C. Peterson, Esquire

Lewis, King, Krieg & Waldrop, P.C. P.O. Box 2425

Knoxville, TN 37901 (865) 546-4646

(865) 523-6529 (fax) lpeterson@lewisking.com

www.lewisking.com

HIRING BEST PRACTICES

THE LAW -- Title VII of the Civil Rights Act of 1964 (Title VII) - Forbids discrimination on basis of race, sex, religion, national origin and gender.

-- Age Discrimination in Employment Act (ADEA) - Can’t discriminate against employees over age 40.

-- Americans with Disabilities Act (ADA) - Can’t discriminate on basis of physical or mental disability.

Hiring – Employment Ads Should be written and placed to reach largest number

of qualified applicants.

Only time race and sex may be specified is if bona fide occupational qualification.

Can’t use ads that signal older workers need not

apply.

LIST: NEVER LIST: •Primary tasks Age limits •Skills needed Characteristics •Pay range Religious practices •Supervising information Physical characteristics

Hiring – Applications & Interviews

CAN’T ASK Race

Organizations Sex or gender

Marital status Plans for children

Religion Religious organizations

Nationality Origin of name Maiden name

Age Date of birth Date of graduation

Disability Medical history General health How got disabled Severity of prognosis Absenteeism due to illness

Hiring – Reference Checks

Concern: Tort of negligent hiring/negligent retention

Remember: Can’t do indirectly what can’t do directly

Obtain written authorization Consider: Fair Credit

Reporting Act Probably can ask about

convictions, but probably not arrests

Place accurate and detailed job ads Design ads to reach largest number of

applicants Keep interviews job-related and consistent Select people with best and most

experience Decide based on legal and objective basis Note reasons for declining to hire in the file

PRE-EMPLOYMENT CHECKS

Fair Credit Reporting Act (FCRA):

FCRA outlines procedures that must be followed when “consumer reports” are used for employment purposes.

What is a Consumer Report? Can be a written, oral or other form of communication of

information by a consumer reporting agency.

Information bears on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.

Information is collected or expected to be used to establish the consumer’s eligibility for personal credit or insurance, employment, or other purposes.

Includes criminal and civil records, driving records, civil lawsuits, reference checks and other information obtained by a consumer reporting agency.

Should you be concerned about the FCRA?

Failure to adhere to FCRA procedures could result in statutory damages of $100 to $1,000 for each willful violation of the statute, making the exposure for a company potentially catastrophic.

Recent settlements of FCRA class

actions involving employee background checks have numbers in the tens of millions of dollars.

FCRA affects four stages of the hiring process:

The disclosure form;

The applicant or employee’s written authorization;

Handling a derogatory report; and

Taking an adverse action.

The Disclosure Form:

The company must disclose to the applicant that a background check will be obtained for employment purposes.

Disclosure must be made in a document that consists only of the disclosure.

Do not attempt to merge this with another document – single page.

Applicant or Employee’s Written Authorization:

This can be a signature line included on the disclosure form if it is the only signature line on the form. (Nothing more than the disclosure and written authorization may be in the form.)

For online or kiosk applications may sign electronically, but the signature must comply with the e-sign line. (Including a notification at the outset that the applicant may ask for paper documents.)

Handling a Derogatory Report/Pre-Adverse Action Notice:

FCRA requires specific steps that must be completed before any “adverse action” is taken with respect to the applicant or employee.

1. Provide the applicant or employee with a copy of the background check or other consumer report;

2. Provide the applicant or employee with a summary of his rights under the FCRA. (See FCRA summary of rights, http://www.ftc.gov.bcp/edu/pubs/consumer/credit cre35.pdf). (Pre-adverse Action Notice).

Purpose of the Pre-Adverse Action Notice: “Speak Now or Forever Hold Your Peace.”

How does the employer take an adverse action?

An employer must wait a reasonable period of time after providing the Pre-Adverse Action Notice.

Must provide notice to the consumer of the action (this is separate and distinct from the Pre-Adverse Action Notice); it may be oral, in writing or electronic.

The Adverse Action Notice must disclose the individual’s right to dispute information in a background check with the consumer reporting agency that furnished it.

E.R.A.C.E.

Eradicating Racism and Colorism from Employment

Part of the EEOC’s process of identifying “issues, criteria and barriers” that contribute to race and color discrimination in the workplace.

Where is the EEOC’s inquiry?

EEOC is looking at pre-hiring/testing and selection criteria.

1. Background screening policies and practices;

2. Credit information;

3. Criminal history

information;

(Specifically arrest records)

EEOC’s Theory:

Certain information used for hiring decisions has a “disparate impact” on minority groups.

Argument is that people of certain races

and national origins are arrested more frequently and/or have negative credit information. Thus, using such information in hiring decisions causes a disparate impact on certain minority groups.

What is “Disparate Impact”?

Violation of Title VII of the Civil Rights Act of 1964 if:

1. Facially neutral policy; and

2. Adversely impacts certain protected groups.

Disparate impact is demonstrated through statistical information.

80/20 rule for disparate impact

If statistics show a disparate impact, the burden shifts for the employer to prove “business necessity” AND no less restrictive means of obtaining the same information.

Where is the EEOC headed?

All signs point to a new Guidance related to the use of:

Criminal history information; Credit history information.

Timing: ERACE is an initiative set to last

through 2013, but Guidance is expected soon.

Lawsuits have already started…

EEOC v. Kaplan (Ohio) (Complaint filed 2010):

Alleges that Kaplan’s use of credit checks in its employment

practices caused a disparate impact on black job applicants.

EEOC v. Freeman (Maryland) (Complaint filed 2009): EEOC alleges that company’s use of credit history and

criminal background checks as selection criteria has a “significant” disparate impact in black applicants and [the company’s] use of criminal history has an adverse impact on Hispanic and male applicants.

Equal Employment for All Act:

HR321 would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purpose of making employment decisions.

Referred to Subcommittee March 2011.

Initially proposed by Representative Steve Cohen (D-Tenn.)

5 Employer Best Practices:

1. Review your background screening policy/procedures. ▪ Are you using proper disclosure and authorization

forms? ▪ Are you following the proper adverse action process? 2. Narrow the positions for which you are running credit checks.

▪ Finance and accounting related hires;

▪ Human resources;

▪ Technology sensitive positions.

5 Employer Best Practices:

3. Run credit check only after conditional offer of employment or after an interview.

4. Determine whether criminal history information is truly an indicator of qualification for the particular job.

5. Know what your third-party screening company is doing: ▪ If they are checking social media, you are subject to the FCRA.

▪ Do they have security procedures to control the privacy of the

data? ▪ Are they gathering only the information you need for the

specific position? ▪ How do they handle incomplete or inaccurate records?

WORKPLACE PRIVACY

General Rule

Phones, computers, e-mail addresses, etc. provided to employees by their employers may be monitored by those employers.

What does the Supreme Court say?

City of Ontario v. Quon (2010)… A Recipe for Disaster Step 1: Police officer uses work pager to text mistress. Step 2: Police chief orders an audit of department pagers. Step 3: Police department discovers mistress texts during audit. Step 4: Police officer receives disciplinary action for improper texts. (Optional Step… His wife finds out.) Step 5: Police officer sues department for invasion of privacy. Step 6: Police officer loses at trial court and wins at appellate level. Step 7: Police officer loses BIG when Supreme Court rules 9-0 against

him. Result: Employee privacy finds no home on employer equipment.

When it comes to privacy… expectations matter.

Your Policy = Their Expectation

Discuss what you want to monitor.

Draft what you will do, not what you

might do.

Distribute what you want them to rely on.

Sample Portion of E-Mail Policy Language:

Electronic mail message (“e-mail”)

addresses shall be provided to current staff members. Staff members should only use their e-mail addresses for work purposes or other professional activities.

WORKPLACE PRIVACY

Monitoring Employee Emails

Email privacy is protected by ECPA: 1986 Federal Law

Emails are not specifically mentioned 2 exceptions allowing employer monitoring: Provider Ordinary course of business

Monitoring Employee Emails

The Exceptions:

The ECPA’s privacy protections contain two exceptions that can allow employers to monitor employee emails:

The provider exception; and The ordinary course of business exception.

See 18 U.S.C. §2511. 1) Provider Exception – Most employers can avoid the ECPA by providing

employees with email service through a company-owned system. 2) Ordinary Course of Business Exception – As with its application to

employee telephone calls, the ECPA allows employers to monitor employee emails if:

a) the emails concern non-personal matters; or b) the employees are notified that all emails shall be monitored.

Recording Employee Calls

Under federal law, business conversations may generally be taped. See 18 USCS § 2511.

Here, “the business extension exemption operates without regard to consent.” Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983).

The Exception:

According to federal case law, when an employer realizes that an employee’s call is personal, the employer must immediately stop monitoring the call. Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983). In Watkins, the 11th Circuit Court of Appeals held that “a personal call may

not be intercepted in the ordinary course of business[.]” Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983).

If employers instruct employees not to make personal calls from

specified business phones, employees then takes the risk that calls on those phones may be monitored or even recorded.

Tip – Never rely on an oral instruction; instead, circulate a written policy.

Videotaping Employee Areas

Employers can utilize video surveillance when monitoring employee performance. “[V]ideo surveillance is a

rational means to advance the employer's legitimate, work-related interest in monitoring employee performance.” Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 183 (1st Cir. 1997).

Union Exception

Under the National Labor Relations Act (“NLRA”), “an employer may use overt surveillance of its employees' protected, concerted activities where necessary to further its legitimate security concerns[.]” Brewers & Maltsters, Local Union No. 6 v. NLRB, 367 U.S. App. D.C. 145 (D.C. Cir. 2005); citing 29 USCS § 158.

However, the NLRA “prohibits the

employer from using that surveillance in a manner having a tendency ‘to interfere with, restrain, or coerce employees in the exercise of’ such activity.” Id.

In sum, employers cannot use video surveillance to restrict or discourage union activity.

Online Privacy

General Rule:

Internet Posting = No Expectation of Privacy

“A person who places information on the information superhighway clearly subjects said information to being accessed by every conceivable interested party.”

United States v. Gines-Perez (DPR 2002)

The Internet

Generally public domain, but not… Encrypted sites

Password protection likened to a locked footlocker.

“Invite Only”

Facebook can be set to allow only “friend” access.

Don’t go where you’re not “invited.”

Online: When (and When Not) to Look? Hiring Process? Don’t look – Information you cannot ask about during an

interview might be all over Facebook. Ignorance = Bliss. While employed? Don’t look, unless invited – An employee who invites you in can

hardly complain when you accept. (If public, look all you want.) Public employees? Be careful what you look for – On top of normal privacy interests,

government employment brings the 1st Amendment into play.

Q: What if an employee is talking about (or even complaining about) your company online?

A: The NLRB now takes the position that

a workers’ online criticism of his/her boss is a “protected concerted activity” under the National Labor Relations Act.

Acting on Employee Blogs As Tennessee remains an at-will employment state and

as matters posted on the Internet generally possess no privacy protections, employers may read, discipline or even terminate employees based on critical and/or inappropriate blog entries.

Dooced” is web slang for being fired based on the content of ones’ website/blog. The tem originates from the name of Heather Armstrong’s website – www.dooce.com – which caused her termination after she used it to complain about supervisors’ offensive pseudonyms.

Problems Associated with Acting on Employee Blogs Other State Laws – Some states have passed laws prohibiting employers from

disciplining employees based on lawful off-duty conduct. For example, if an Tennessee employer also employs workers in Colorado,

those Colorado employees and their blogs are protected under Col. Rev. Stat. § 24-34-402.5.

NLRA – As with its protections regarding video surveillance, the NLRA would prohibit employers from monitoring and/or acting on employee blogs when those actions could “interfere with, restrain, or coerce employees in the exercise of” union activity. 29 USCS § 158.

Title VII – If employers treat some employee bloggers differently than others, such treatment could be the basis for a discrimination claim. For instance, what if an employer terminated a female employee for posting

provocative photos on her blog yet ignored similar photos posted by male employees?

DRINKERS, SMOKERS & PEOPLE WHO STINK

How sensitive issues can become legal problems.

► ALCOHOL ► DRUGS ► TOBACCO ► BODY ODOR

ALCOHOL

DRINKERS & SMOKERS Alcohol Sobering statistics: -Single most used and abused drug in America. Nearly 14,000,000 Americans (1 in every 13 adults) abuse alcohol or are alcoholics -66% of full-time working Americans engage in heavy drinking -Alcoholics spend 4 times the amount of time in the hospital -Cost of untreated alcohol abuse estimated at $276 billion

But . . .

. . . IT IS ANY OF YOUR BUSINESS?

Workplace Buzz-Kill ► Workplace costs of alcoholism and alcohol abuse range

from $33 to $68 billion dollars ► Absenteeism is 4 to 8 times greater (also greater for

family members)

► More on-the-job injuries 38% to 50% of all workers’ compensation claims

involve drugs or alcohol.

► Higher healthcare costs

EMPLOYEE ALCOHOL ABUSE WILL BECOME YOUR BUSINESS

Can I REGULATE an employee’s PERSONAL LIFE?

PROCEED WITH CAUTION…

You

MUST

Regulate Your Workplace

Signs of trouble: Leave and attendance issues Unexplained absences Frequent tardiness Excessive sick leave Pattern of absences Frequent unplanned absences due to

“emergencies” Absent from duty without explanation or

permission

Performance problems: Missed deadlines Careless or sloppy work Production quotas not met Many excuses for uncompleted assignments Faulty analysis

Relationships at work: Relations with co-workers may become

strained Belligerent, argumentative, or short-tempered May become a “loner” May have noticeable financial problems

Behavior at work: Exhibit appearance of being inebriated Smell of alcohol Unsteady gait Bloodshot eyes Smell of alcohol on the breath Mood and behavior changes Excessive use of mouthwash Avoidance of supervisory contact, especially after

lunch Tremors Sleeping on duty

Diagnosis? . . .

Employers DO diagnose and treat work issues

Employer’s DO NOT diagnose and treat alcohol issues

Alcohol and Discrimination Laws.

Americans With Disabilities Act (ADA) Alcoholism is a protected disability under the

ADA

Family and Medical Leave Act (FMLA) Alcoholics are covered under the FMLA

What is an employer to do? (ADA) 1. Provide “reasonable accommodation” -Accommodation for binge drinking, etc.? – No -Accommodation for rehabilitation? – Yes -Endure undue hardship? – No -Toleration of substandard performance? - No 2. Require proof of disability 3. Enforce uniform standards

-Can prohibit alcohol in the workplace -Can require employees to be free from effects of

alcohol -Can enforce attendance/tardiness rules

What is an employer to do? (FMLA)

1. Consider the reason for the leave request: - For treatment? – Allowed - For general absences? – Not allowed

2. Require proof of the “serious health condition”

DRUGS

Drugs and Discrimination Laws

Americans With Disabilities Act (ADA)

Drug addiction IS a protected disability under the ADA Recreational drug use is NOT

ADA does not protect employees who currently engage in the use of illegal drugs

ADA allows drug testing, but requires confidentiality regarding legal drugs and medical information.

Family and Medical Leave Act (FMLA) FMLA leave includes leave to seek treatment

for drug addiction Does not protect leave due to present drug

use Can enforce drug policies during FMLA leave

TOBACCO

1 Are smokers in a protected class?

Yes No

FACT: FEDERAL ANTI-DISCRIMINATION STATUTES DO NOT PROTECT SMOKERS

Did you know that a Tennessee statute protects employees who smoke?!

► Prohibits termination (does not address hiring or discipline);

► Where tobacco is the sole reason; and

► Where employee is complying with employer policies regarding tobacco use while working.

Tenn. Code Ann. § 50-1-304(e)(1)

But… … Now we have a Tennessee Statute that protects

non-smokers?! “Smoking is prohibited in all enclosed public

places within this state.”

Tenn. Code Ann. § 39-17-1803(a) Tenn. Code Ann. § 39-17-1804

(list of areas where smoking prohibited)

The Non-Smoker Protection Act places burdens of

enforcement on EMPLOYERS: ► Maintain a non-smoking environment ► Communicate smoking prohibition to

employees ► Communicate smoking prohibition to

applicants ►“No Smoking” signs at entrance

Penalties for Employers: ► Written warning = 1st violation ► $100.00 fine = 2nd violation ► $500.00 fine = 3rd and

subsequent violations Note: Each day of a knowing

violation equals separate and distinct violation.

Smoking: The Battle of this Decade?

SMOKERS’ RIGHTS VS.

NON-SMOKERS’ RIGHTS

Criticism of “No-Hire” Policies

“conspicuous intrusion into the personal lives of prospective employees…”

Blog: StandFastSmoker’sLounge “Slippery slope” and “too invasive”

Dr. Michael Siegel

BODY ODOR

1. Confirm the problem. 2. Hold a private meeting. 3. Meet at the end of the day. 4. Talk directly to the offending worker. 5. Have someone else present. 6. Be candid and straightforward. 7. Be sensitive to the effect on the employee 8. Be considerate of the employee’s feelings. 9. Make the problem a business issue, not a personal

one. 10. Be brief and to the point. 11. Stick to the topic.

DON’T . . . . . . Try to guess why the problem exists and

do not ask why the problem exists. . . . Discuss medical causes. . . . Suggest changes to his/her diet.

DO . . . . . . Monitor the situation once the meeting is

over. . . . After the meeting, reassure the

complaining employees.