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BEST PRACTICES FOR COMPLYING WITH NEW YORK CITY FAIR CHANCE ACT

“Given the imminent effective date of New York City’s Fair Chance Act, employers may be wondering what they need to do to comply with the law.  As many employers are aware, effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.)  The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)).  On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form, and is expected to release its enforcement guidance imminently.  In the meantime, we recommend employers consider the following:

  1. Review all pre-employment forms.  Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
  2. Train hiring managers.  Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment.  If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
  3. Revise the adverse action protocol.   The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
    1. provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
    2. conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
    3. keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.

The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR.

  1. Consider best practices for direct inquiries to the applicant.  Many employers may still wish to ask the applicant personally whether he or she has a criminal history.  Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider.  Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
  2. Review FCRA disclosure forms.  Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report.  And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.”

Originally posted by Lexology. Full article at http://www.lexology.com/library/detail.aspx?g=79e01e92-5fd0-4607-9728-fb8575f23655

EEOC GOES HOLLYWOOD: COMMISSION TO PROBE GENDER DISCRIMINATION AGAINST FEMALE DIRECTORS

“Several women directors say that they have received notices from the Equal Employment Opportunity Commission asking to set up interviews in an apparent start to an investigation over gender discrimination in Hollywood.

According to a copy of the letter obtained by Variety, the EEOC is asking directors to speak with them so that “we may learn more about the gender-related issues” they are facing in entertainment. The letter indicated that the interviews would be conducted in the month of October.

In May, the ACLU of Southern California called on the EEOC to investigate “the systemic failure to hire women directors at all levels of the film and television industry.”

They cited figures showing hiring of women directors in entertainment well behind their proportion of the population. In one of the figures cited, women made up just 7% of directors were in the 250 top grossing films in 2014, two percentage points lower than it was in 1998, according to a study from the San Diego State University Center for the Study of Women in Television & Film. According to a recent report from the Directors Guild of America, the number of TV episodes directed by women in 2014-15 was just 16%, albeit a modest gain from a year earlier.

Director Maria Giese, who made the initial inquiry with the ACLU four years ago, said that she had received an EEOC letter and was hoping to set up an interview in the coming weeks.

She has been writing about the issue on her own blog, Women Directors in Hollywood, and last month gave a speech to Hollywood Business and Professional Women in which she outlined the history of past legal efforts as well as push back she has gotten from the DGA.

Among those who also received a letter was Lori Precious, who said that she was “euphoric” that the EEOC appeared to be moving forward with an inquiry.

Although there have been efforts in the past to investigate gender discrimination in Hollywood, “the real problem is it just never turns into change,” Precious said. The EEOC also conducted a report on race and sex discrimination in Hollywood in the 1980s.

Another recipient was Melanie Wagor, who said that “everybody is ecstatic and really thankful for the ACLU and the EEOC for taking this seriously.”

A spokeswoman for the EEOC said that federal law does not allow them to confirm or deny the existence of a charge.

But she said that the “EEOC will continue to vigorously enforce Title VII’s nondiscrimination requirements. Title VII prohibits covered employers from discriminating on the basis of sex. … We also encourage the industry to publicly address the serious issues raised by the ACLU and to take proactive steps to address these issues.”

The ACLU of Southern California had been gathering anecdotal information from 50 women directors, resulting in a 15-page letter sent to the EEOC, the federal Office of Federal Contract Compliance Program and the state Department of Fair Employment and Housing.

“Women often reported the pervasive perception that hiring women directors is viewed as more ‘risky’ than hiring men; even men with less experience,” the ACLU letter stated. “This perception is particularly harmful where multiple decisionmakers must agree each time a director is hired, and each decisionmaker is wary of hiring outside the standard (male) norm.”

Among other things, the letter said that even women who have initial success are not hired consistently or their careers stall, or they are not trusted with bigger budget projects at the same rate as their male peers.

“Both research and the anecdotal evidence we gathered showed serious gender disparities in opportunities, even for women whose films debut at prestigious festivals,” the letter stated.

A spokesman for the Alliance for Motion Picture and Television Producers said they had no comment.

The letter was critical not just of studio and network hiring practices — including the reliance on lists in deciding who to hire — but also of the role of talent agencies and the DGA.

The ACLU letter concluded that the guild’s efforts to increase the hiring of women “are ineffective and some practices may perpetuate discrimination.”

The letter cited “a widespread perception that the DGA leadership did not prioritize increasing the number of women directors hired and at times expressed hostility or blocked efforts of female members to make the issue a higher priority.” Although the guild has worked with studios to create “shadowing” programs and fellowships for women directors and ethnic minorities, the ACLU letter said that many women view the programs as “condescending to women, especially where women directors are required to participate as an express or implied condition of getting work, while comparably experienced men are not.”

The DGA sued two studios, Warner Bros. and Columbia Pictures, over hiring practices in 1983, but the class-action litigation was dismissed two years later after a federal judge ruled that the guild had a conflict of interest in representing the class. Among other things, the judge, Pamela Rymer, wrote that the DGA, as the collective bargaining agent, itself faced triable questions as to whether its procedures also contributed to discrimination. What followed was an agreement between the DGA and the studios requiring employers make “good faith efforts” to hire women and minority directors and to provide a report on the sex and ethnicity of those hired.

The DGA had no comment on Tuesday.

At the time the ACLU released its letter, the DGA said in a statement that the “lack of network and studio action to hire more women and minority directors is deplorable. The DGA has been a long-standing advocate pressuring the industry to do the right thing, which is to change their hiring practices and hire more women and minority directors.”

But it said that the ACLU had made “no effort to contact the DGA concerning the issues raised in its letters. The ACLU’s assertions reflect this lack of investigation as to the Guild, and ignore its efforts to combat discrimination against women directors and to promote the employment of women directors.

“There are few issues to which the DGA is more committed than improving employment opportunities for women and minority directors, it is time for change,” the guild said.

Bonnie Eskenazi, partner at the law firm Greenberg Glusker, said that “assuming there is an investigation and there is found to be discrimination, then how do you fashion a remedy which will actually make a difference?”

“I don’t think you can solve this problem without a long-term follow up,” she said.

She believes that it is time to “think outside the box,” and said that she is at work on an idea in which a “film gender czar” would be empowered to recommend action for employers to take to improve hiring practices.

“Unless there is a central body that can be responsible for taking action, then nothing will happen,” she said.

News of the EEOC’s issuance of letters was first reported by the Los Angeles Times.”

 

Originally posted by Variety.  Article can be found at http://variety.com/2015/biz/news/eeoc-women-directors-gender-discrimination-aclu-1201611731/

CALIFORNIA ACTS TO OUTLAW PRE-EMPLOYMENT MANDATORY AGREEMENTS TO ARBITRATE LABOR CODE CLAIMS

“In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy starting January 1, 2016. AB 465 would create a new statute that prohibits employers from requiring a candidate to “waive any legal right, penalty, remedy, forum, or procedure for a violation of [the Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner… or any court or other governmental entity.” The section explicitly covers “an agreement to accept private arbitration.” The bill makes it unlawful to threaten, or retaliate or discriminate against, a person who refuses such a waiver. An employee may recover reasonable attorney’s fees incurred in enforcing rights under the new statute.

Even if the bill becomes law, certain forms of pre-employment arbitration agreements would remain enforceable, even if they cover Labor Code violations. For instance, those agreements that are knowing and truly voluntary—i.e., not made as a condition of employment—would be valid, but the employer would have the burden of proving these facts if challenged. Further, the new statute would not apply to persons registered with a self-regulatory organization under the Securities Exchange Act of 1934 or employees represented by counsel in negotiating the agreement.

AB 465 is principally backed by organized labor, with the California Labor Federation, AFL-CIO sponsoring the bill. A lobbyist for the federation cited an uptick in the instances of low-wage workers being unable to recover unpaid wages before the California Labor Commissioner due to an arbitration agreement they did not understand or know they signed. The bill is opposed by many groups, including the Civil Justice Association of California and the California Chamber of Commerce. The chamber has identified AB 465 as one of the 2015 Job Killers, citing the increased burden on the judicial system and noting likely preemption by the Federal Arbitration Act.

If AB 465 becomes law, the long-term legal impact is unclear. Not only will it prohibit pre-employment, mandatory agreements to arbitrate Labor Code violations, but it may also reach class action waivers, which the California Supreme Court recently upheld in the employment context. The substantive reach of the prohibition is also unclear, expressly covering a “legal right, penalty, forum, or procedure” for a Labor Code violation, but remaining silent on other employment-related statutes such as the Fair Employment and Housing Act (codified in the Government Code). Moreover, the statute will almost certainly be challenged under the Federal Arbitration Act, which reflects a liberal policy favoring arbitration enforceability and pre-empts state rules that disfavor arbitration. The ambiguity in breadth and pre-emption uncertainty leave employers in an unenviable position if the bill becomes law.

AB 465 (and the other employment-related bills described below) remain on Governor Brown’s desk for consideration, and we will continue to monitor and report on developments.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/california-legislature-acts-to-outlaw-73929/

BMW SETTLES EEOC CRIMINAL BACKGROUND CHECK SUIT FOR 1.6 MILLION

“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.

The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.

At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.

According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.

Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background

checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.

The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “

Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821

TRUCKING FIRM TO PAY UP IN EEOC PRE-EMNPLOYMENT EXAM CASE

“An Indianapolis trucking firm has agreed to pay $200,000 to settle an Equal Employment Opportunity Commission disability discrimination case, in which it was charged with requiring pre-employment medical exams.

The EEOC said Tuesday that Indianapolis-based Celadon Trucking Services Inc. violated the Americans with Disabilities Act by subjecting applicants to medical exams before making a conditional offer of employment, and discriminating against applicants based on disability or perceived disability.

The agency said that on June 30, the U.S. District Court in Indianapolis ruled that the company violated the ADA by conducting unlawful medical inquires and exams of applicants for over-the-road truck driving positions, and that in two cases, it unlawfully dismissed two class members from a driver orientation program because of their disabilities, in violation of the ADA.

In addition to paying $200,000 in damages to 23 former Celadon applicants, the settlement requires the company to train its management employees on disability discrimination, among other provisions.

“The law is clear: Celadon cannot subject applicant drivers to disability-related inquiries and medical examinations without first extending to these applicants a conditional job offer,” said Laurie A. Young, regional attorney of the EEOC’s Indianapolis district office, in a statement.

“Celadon’s policies must conform to the requirements of the ADA. We are satisfied that this settlement serves the public interest, and we are confident that the relief obtained will prevent the recurrence of this type of discrimination,” Ms. Young said.

Celadon’s attorney could not immediately be reached for comment.

Earlier this year, an Arkansas trucking firm was ordered to pay $477,399 in an EEOC disability discrimination lawsuit in which it was charged with subjecting its truck-driver workforce to overly broad medical inquiries.”

Originally posted by Business Insurance. Article can be found at http://www.businessinsurance.com/article/20150804/NEWS06/150809951/trucking-firm-to-pay-up-in-eeoc-pre-employment-exam-case?tags=%7C338%7C70%7C75%7C80%7C83%7C302

SEC CLARIFIES WHISTLE BLOWER PROTECTIONS AGAINST EMPLOYER RETALIATIONS

“The Securities and Exchange Commission has issued an interpretive rule clarifying that whistleblowers are protected by retaliation by employers even if they have not reported their concerns to the SEC first.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 included a section offering incentives and protections to individuals who report possible violations of the federal securities laws, including protections against employer retaliation. The SEC issued rules in 2011 spelling out how the whistleblower protections would work, but there was some ambiguity when the SEC specified how whistleblowers should report a tip to the SEC in order to qualify for a whistleblower award, and those who would be protected from employer retaliation.

In particular, questions arose over whether an employee who first reported the matter internally to their employer, such as a compliance department, would be protected from retaliation from that same employer, or only those who reported directly to the SEC.

“Our interpretation best comports with our overall goals in implementing the whistleblower program,” said the SEC in the rule it issued last week. “Specifically, by providing employment retaliation protections for individuals who report internally first to a supervisor, compliance official, or other person working for the company that has authority to investigate, discover, or terminate misconduct, our interpretive rule avoids a two-tiered structure of employment retaliation protection that might discourage some individuals from first reporting internally in appropriate circumstances and, thus, jeopardize the investor-protection and law-enforcement benefits that can result from internal reporting. Under our interpretation, an individual who reports internally and suffers employment retaliation will be no less protected than an individual who comes immediately to the Commission. Providing equivalent employment retaliation protection for both situations removes a potentially serious disincentive to internal reporting by employees in appropriate circumstances. A contrary interpretation would undermine the other incentives that were put in place through the Commission’s whistleblower rules in order to encourage internal reporting.”

The Government Accountability Project, a whistleblower protection advocacy organization, and Labaton Sucharow LLP, a law firm that specializes in securities class-action lawsuits, wrote a letter Tuesday to SEC chair Mary Jo White thanking her for the interpretive rule, but also asked for further protections.

They pointed out that the new rule clarifies that any disclosure protected by the Sarbanes Oxley Act is shielded from retaliation under its Whistleblower Program. In effect, according to them, protection extends to disclosures within a corporation, to other law enforcement audiences, or to the public. Protection also extends to any violation of federal law, not just those enforced by the SEC. However, they cautioned that the SEC should take additional measures to address the remaining vulnerabilities they identified in a petition last summer to the SEC.

“Our July 2014 petition emphasized that new and creative forms of corporate prior restraint are preventing disclosures from happening at all, making academic the issue of subsequent retaliation,” wrote GAP legal director Tom Devine and Labaton Sucharow partner Jordan Thomas. “Merely presenting employees with nondisclosure agreements creates a chilling effect, and there are no rights for refusing to agree—only for violating one with protected speech. Further, corporations regularly file breach of contract lawsuits, theft of corporate records actions, and other litigation attacks outside the employment context. Realistically, to prevent a chilling effect on the flow of evidence necessary for SEC oversight, it is necessary to go beyond interpretations that restrict harassment of incumbent employees.” ”

Article posted by Accounting Today. Original article at http://www.accountingtoday.com/news/audit-accounting/sec-clarifies-whistleblower-protections-employer-retaliation-75468-1.html

SCOTUS HOLDS THAT EEOC CONCILIATION EFFORTS ARE SUBJECT TO LIMITED JUDICIAL REVIEW

I. Procedural Background and Party Positions

“After investigating a gender discrimination claim against Mach Mining, the EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The EEOC sent a letter inviting Mach Mining and the claimant to participate in informal conciliation proceedings. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had failed – pursuant to the statutory mandate that conciliation discussions remain private, the evidence record did not reflect what negotiations, if any, took place in the interim. The EEOC then sued Mach Mining in federal court.

In its responsive pleadings, Mach Mining asserted, as an affirmative defense, that the EEOC had not attempted to conciliate in good faith. The EEOC responded by arguing: (1) that conciliation efforts were not subject to judicial review; and (2) that the two letters sent to Mach Mining provided sufficient proof that the EEOC had fulfilled its statutory duty to conciliate. The district court agreed with Mach Mining, holding that the adequacy of the EEOC’s conciliation efforts was subject to judicial review. The EEOC appealed, and the Seventh Circuit reversed the District Court, finding that the EEOC’s statutory obligation to conciliate was unreviewable. Mach Mining then sought review in the United States Supreme Court, andcertiorari was granted.

The parties presented unwavering and starkly opposite arguments to the Supreme Court. The EEOC’s position was that Title VII allotted complete discretion to the Commission; therefore, its conciliation efforts were not subject to judicial review. The only concession made by the EEOC was that, if the Court were to deem the conciliation process reviewable, then the EEOC’s letters to Mach Mining provide sufficient evidence of the Commission’s compliance with the statutory mandate to conciliate – as long as the EEOC issues two letters, courts have no authority to consider any other evidence regarding the conciliation process. Mach Mining, on the other hand, argued that courts should be able to employ the NLRA’s standard of “good-faith bargaining” with regard to the EEOC’s conciliation efforts, which would require courts to delve deeply into the facts surrounding each and every conciliation process.

II. The Opinion

In a unanimous opinion, authored by Justice Kagan, the Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But [the Court found] that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015). Sounds good in theory, right? To unpack this holding, one must look at each of the issues addressed by the Court and, more importantly, the issues that were not addressed.

First, the Court had to dispose of the EEOC’s argument, and Seventh Circuit’s holding, that the EEOC’s conciliation efforts were not judicially reviewable. To do so, the Court cited case law precedent that applies a “strong presumption” favoring judicial review of administrative action. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). The Court reasoned that, because the EEOC’s participation in conciliation efforts is a mandatory prerequisite to filing a lawsuit under Title VII, courts must be able to exercise some oversight in the process. As the Court stated:

Yes, [Title VII] provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission.

Mach Mining, 135 S.Ct. at 1652 (emphasis in original) (citations omitted). The Court’s view was predicated on the idea of culpability:

Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.

Id. at 1652-53.

Having determined that the EEOC’s conciliation efforts are subject to judicial review, what, then, is the scope of such review? The Court denied each side’s proposed standard. First, the Court denied the EEOC’s argument for “the most minimalist form of review imaginable,” reasoning that “a court needs more than the two bookend letters the Government proffers” in order to verify the Commission’s compliance with Title VII. Id. at 1653. Likewise, the Court rejected Mach Mining’s proposed framework, similar to that used in the NLRA, because the NLRA and Title VII serve different purposes. While Title VII is focused strictly on results – to eliminate unlawful discrimination in the workplace – the NLRA aims to create a “sphere of bargaining” in which both sides are obligated to bargain fairly. Id. at 1654. To treat Title VII conciliation like labor negotiations, the Court held, would be to adopt rules that “do not properly apply to a law that treats the conciliation process not as end in itself, but only as a tool to redress workplace discrimination.”Id. The Court additionally noted that Mach Mining’s proposed scope of judicial review would undermine the EEOC’s discretion and confidentiality mandated by Title VII. See id. at 1655.

The Court held that the appropriate scope of review enforces Title VII’s requirements, “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further.” Id. at 1653. As the Court explains:

[Title VII] demands…that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an ‘endeavor’ to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute.

Id. at 1655-56. To show, then, that the EEOC did not comply with Title VII during conciliation, an employer must provide credible evidence (typically by sworn affidavit) indicating that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” which would then allow a court to conduct the necessary factual inquiry to decide the dispute.

III. Lingering Issues

So, the Court has defined Title VII conciliation as a tool to remedy workplace discrimination (nothing new there). What is interesting, however, is that the Court inferentially mandated that the remedy of the allegedly discriminatory practice be the beacon of conciliation. How does that work? Let’s say, for example, that Mach Mining had said during conciliation, “Okay, EEOC, we know there is a problem. We will hire the claimant, pay her the wages she would have earned up to her first day of work and adjust our hiring practices and facilities accordingly.” By the Court’s ruling, this would seem to be a sufficient offer to remedy the alleged discrimination. But, what if the EEOC rejects this proposal? What if the EEOC wants to make an example out of Mach Mining? Can they do that? Sure they can. The Court does not disturb the extensive discretion allotted to the EEOC in determining a satisfactory settlement or in determining its motive for accepting or rejecting settlement. As you can see, although the Court’s holding has established the allowance of judicial review, it does not allow courts to interpret the rationality of the EEOC’s positions. Courts may only determine whether the Commission went through the proper procedures and put the employer on notice of the claim. For a results-oriented statute, as the Court described Title VII, this scope of judicial review does not seem to facilitate the results that Title VII theoretically endeavors to achieve. ”

 

Originally posted by The National Law Review.  Article can be found at http://www.natlawreview.com/article/us-supreme-court-holds-eeoc-conciliation-efforts-are-subject-to-limited-judicial-rev

 

 

WHAT EMPLOYERS NEED TO KNOW ABOUT SCOTUS GAY MARRIAGE RULING

“The Supreme Court on Friday ruled that same-sex couples have a constitutional right to marry, meaning that same-sex marriages must be recognized nationwide. The ruling will have vast implications for employers, which until now have been operating under a patchwork of different state and federal laws governing the legal and tax treatment of same-sex unions.

Here’s what businesses should keep in mind as they navigate the new landscape.

If an employer offers spousal health-insurance benefits, do they need to offer them to all married employees, gay or straight?

In general, yes.

Companies that offer spousal health benefits and use a separate insurance company to fund their benefits will now be required to cover both gay and straight spouses. “Based on the court’s ruling today, there is simply one type of spouse,” says Todd Solomon, a law partner in the employee-benefits practice group at McDermott Will & Emery in Chicago, who has been tracking same-sex employee benefits for nearly two decades.

But companies that are self-insured, which means they assume the insurance risks for their own employees, a common practice among large companies, aren’t under the same legal constraints. “There is technically no legal requirement that a self-insured company has to include a same-sex spouse,” Mr. Solomon says.  As a result, self insurance “is where we are going to see a lot of activity and a lot of litigation.”

Companies should think twice about self-insuring but denying benefits to gay spouses, because they will be vulnerable to discrimination suits, he says.

What if an employer has a religious objection to gay marriage?

They have limited options.

Companies could choose not to offer benefits to spouses altogether. Or they could self-insure and attempt to offer benefits to only straight spouses, but they run a high risk of discrimination suits, Mr. Solomon says.

Now that same-sex marriage is legal, will it add a lot of people to employers’ benefits plans? Will this be expensive for employers? 

It could, but it depends on what type of plan a company already had.

If a company already covered unmarried same-sex domestic partners, it could be cheaper, because covering spouses doesn’t have negative tax implications and is easier to administer than most domestic partnership benefits, Mr. Solomon says.

But if a company only offered spousal benefits, the ruling will add new couples that previously were not allowed to marry.

Will the Supreme Court ruling lead to fewer employers offering spousal benefits?

Yes – that’s been the trend, and the ruling might exacerbate it.

Employers have been cutting spousal benefits to save money, either dropping spousal coverage or imposing surcharges on spouses who can obtain health insurance elsewhere. A survey from consulting firm Mercer of over 1,100 large employers found that 17% either excluded spouses with other coverage available or imposed a surcharge in 2014, compared with 12% in 2012.

The Supreme Court ruling might spur some employers who were already inclined to cut spousal benefits to do so, Mr. Solomon says.

What are the tax implications?

It equalizes the tax treatment of gay and straight married couples.

Until today’s ruling, there were a patchwork of state and federal tax laws governing same-sex couples.  Employers, depending on the state, sometimes faced additional payroll taxes for same-sex employees, and workers sometimes faced additional income taxes.

Now, for both federal and state tax purposes, companies and employees will not face different tax treatment for gay and straight married couples. That will make benefits easier for companies to administer, Mr. Solomon says.

What does this mean for domestic partnership benefits?

This is a particularly complicated issue for employers.

Over the past decade, a growing number of companies offered “domestic partnership” coverage for gay employees and their partners as a way to provide equal benefits for couples who couldn’t legally wed. Others companies offer coverage more broadly to unmarried domestic partners, regardless of sexual orientation, recognizing that some employees simply prefer not to marry.

Companies that offer unmarried partnership benefits to both gay and straight couples will likely continue to do so.

But companies that offer partnership benefits just to gay couples may begin to phase them out, because now all their employees can legally marry. Offering domestic partnership benefits just to gay couples but not straight ones might make firms vulnerable to reverse discrimination lawsuits, lawyers say.

On the other hand, firms may choose to keep domestic partnership benefits to help protect gay employees from discrimination. The majority of U.S. states lack anti-discrimination protection for gay employees, so workers can be fired for their sexuality. Because marriage certificates are public, forcing employees to get married for spousal benefits may end up “outing” an employee, while domestic partnerships are typically private matters, gay advocates say.”

Originally posted by The Wall Street Journal. Article can be found at http://blogs.wsj.com/atwork/2015/06/26/what-the-supreme-court-gay-marriage-ruling-means-for-employers/

New York City Bans Employers from Considering Consumer Credit

“On May 6, 2015, New York City Mayor Bill de Blasio signed into law a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The exceptions to this new law are much more limited than the exceptions found in similar laws in other states. New York City employers need to review their employment policies to ensure that their employment policies and decisions do not give employees or applicants potential claims of “consumer credit history” discrimination.

With Few Exceptions, New York City Employers Are Prohibited From Using Consumer Credit Histories for Employment Purposes.

The new law amends the New York City Human Rights Law (“NYCHRL”) to bar New York City employers from requesting, or relying upon, the consumer credit history of an applicant or employee for employment purposes, including hiring and compensation decisions. Specifically, the law provides:

[I]t shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to request or to use for employment purposes the consumer credit history of an applicant for employment or employee, or otherwise discriminate against an applicant or employee with regard to hiring, compensation, or the terms, conditions or privileges of employment based on the consumer credit history of the applicant or employee.”1

Notably, this new law extends protections with regard to consumer credit history beyond the protections afforded most other statuses protected by the NYCHRL: not only are employers prohibited from relying upon consumer credit histories to discriminate against applicants or employees, it now also violates the NYCHRL for an employer even to “request” an applicant’s or employee’s consumer credit history, unless one of the enumerated exceptions applies.

Most employers that include background checks as part of their application or post-offer hiring process for their operations outside of New York City must therefore now remove any consumer credit-related inquiries from their employment and hiring documentation and practices in New York City. Significantly, mere compliance with the Fair Credit Reporting Act notification and authorization requirements will not eliminate the need to follow the new requirements of the NYCHRL.

The definition of the term “consumer credit history” includes not only information obtained in a background check, but also information obtained directly from an applicant or employee:

“[C]onsumer credit history” means an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by: (a) a consumer credit report; (b) credit score; or (c) information an employer obtains directly from the individual regarding (1) details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or (2) bankruptcies, judgments or liens. A consumer credit report shall include any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.

In a press release, the New York City Council explained the rationale for this new law:

Employers often use consumer credit information to make hiring decisions, despite the fact that there is little evidence linking an employee’s credit score or credit worthiness to job performance or trustworthiness. Credit checks may adversely affect those who have fallen behind on student loan payments, medical bills or have taken on other forms of consumer debt. Further, the use of credit checks for employment purposes has been shown to have a discriminatory impact on low-income communities and communities of color. They also have a disparate impact on women and victims of domestic violence.2

The law goes into effect on September 3, 2015, 120 days after enactment. The remedies for aggrieved applicants and employees are the same as those available to other discrimination plaintiffs under the New York City Human Rights Law: Aggrieved applicants and employees may either file a lawsuit for damages in court within three years of the alleged discrimination or file a complaint with the New York City Commission on Human Rights within one year of the alleged discrimination. Remedies available to aggrieved applicants and employees include compensatory damages, punitive damages and injunctive relief.

The Exceptions

Many employers have reason to be concerned by this new law. Despite the policy concerns outlined in the New York City Council’s press release, there are many jobs for which a credit history check is a vital component of an employer’s efforts to protect itself against employee embezzlement and similar problems. Fortunately for employers, the new law does include some limited exceptions. Specifically, New York City employers may continue to request, and use, credit histories when making employment decisions for the following positions:

  • Positions for which state or federal law and regulations require the use of an employee’s credit history;
  • Law enforcement personnel;
  • Positions that require a background investigation by the New York Department of Investigation;
  • Positions in which an employee is required to be bonded under City, state or federal law;
  • Positions requiring security clearances;
  • Non-clerical positions that have regular access to trade secrets, intelligence information or national security information;
  • Positions having signatory authority over third-party funds or assets valued at $10,000 or more;
  • Positions involving a fiduciary responsibility to the employer with authority to enter financial agreements valued at $10,000 or more on behalf of the employer; and
  • Positions with regular duties that allow the employee to modify digital security systems to prevent the unauthorized use of the employer’s or a client’s networks or databases.

The law includes no generally applicable exception for employees working for financial institutions or employees with signatory or contract authority for amounts under $10,000. Similarly, in the absence of such signatory or contract authority, none of the exceptions allow credit checks for employees or applicants working in finance or payroll departments, even though these positions necessarily involve access to information and payment systems that may make it easier for employees to engage in embezzlement without detection. The law does, however, provide that employers are not precluded from requesting or receiving consumer credit history information pursuant to a lawful subpoena, court order or law enforcement investigation.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/new-york-city-largely-bans-employers-fro-32016/

EEOC PUBLISHES PROPOSED RULES ON HOW ADA RELATES TO WELLNESS PROGRAMS

“Many employers offer corporate wellness programs to promote healthier lifestyles, prevent disease and reduce healthcare costs. These wellness programs may include, for example, nutrition classes, on-site exercise facilities, weight-loss and smoking-cessation programs, and/or coaching to help employees meet personal fitness goals.

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a much-anticipated notice of proposed rulemaking describing how Title I of the Americans with Disabilities Act (ADA) applies to such wellness programs that (a) are part of group health plans, and/or (b) include questions about employees’ health or medical examinations. The Federal Register officially published the proposed rule on April 20, 2015. The EEOC will take public comments on its proposal until June 19, 2015 before issuing final regulations.”

 

 

Originally posted by JD Supra. Full can be found at http://www.jdsupra.com/legalnews/eeoc-publishes-proposed-rule-on-how-the-86245/