Wyche at Work: December 2014 Employment Update

Prepared by Mark Bakker
December 2014

Local EEOC Lawsuit Activity

EEOC Settles with Hospital in North Carolina

The EEOC announced in late November that it had extracted an $85,000 settlement from Angel Medical Center, Inc. in Franklin, NC following a charge of disability discrimination. The EEOC brought a lawsuit against the hospital following a charge that the hospital unlawfully refused to accommodate a nurse undergoing cancer treatment. According to the lawsuit, the hospital would not accommodate her request to complete chemotherapy treatments while remaining a full-time employee. In addition to the cash settlement, the hospital entered into a consent decree in which the hospital agreed to revise its disability accommodation process policy, provide annual training to hospital employees, post a notice concerning the lawsuit and employee rights under federal anti-discrimination laws, and report periodically to the EEOC regarding future requests to accommodate. As Wyche at Work has set forth previously, when faced with specific questions or limitations that address disabilities under the Americans with Disabilities Act, employers need to engage their employees in an interactive dialogue process and determine whether the disability can be accommodated and/or whether the proposed accommodation is an undue hardship. Failing to engage in this process can lead to charges and more serious liability.

EEOC Learns What is Good for the Goose…

Wyche at Work has referenced the EEOC’s recent scrutiny of criminal background checks generally and the specific lawsuit the EEOC brought against BMW regarding BMW’s criminal background check policy. Specifically, the EEOC alleged that BMW’s use of its criminal conviction background check policy “constitutes an unlawful employment practice” because it has “a significant disparate impact on black employees and applicants and is not job-related and consistent with business necessity.”  BMW recently moved to compel the EEOC to produce documents related to the EEOC’s own criminal conviction background check policy. The EEOC argued that the production of documents related to its policy were not relevant, but the United States District Court disagreed and ruled that the agency  should be compelled to hand over documents related to its own criminal background check policy. Wyche at Work is intrigued by this development and strategy and will keep you informed of material developments in this area.

FTC Issues Additional Guidance on Background Checks

Wyche at Work has devoted much attention to employers’ use of background checks, covering the use of arrest and conviction records, especially during the hiring process, and resources published by federal agencies to help employers use background checks legally in the workplace.

Federal agencies are also making effort to educate applicants and employees on their rights under federal law regarding background checks. The Equal Employment Opportunity Commission and Federal Trade Commission offer one publication – Background Checks:  What Job Applicants and Employees Should Know – which explains what to expect if a background check yields negative results.  The agencies recently published a second publication, Tips for Job Applicants and Employees. This publication goes into greater detail about the rights of employees and applicants if they suspect a company discriminated against them in an employment decision or did not conduct the background check properly.  Both publications provide contact information to file complaints with the EEOC and FTC.

In light of the agencies’ continued focus on the use of background checks and the recent “ban the box” initiatives in other states, employers would be wise to make sure their policies are in compliance with federal and state law. Let us know if you have any questions as you develop or review your background check policies.

Is New Hire Reporting on Your Checklist?

The checklist of tasks to perform and information to convey when hiring employees can be a long one, ranging from running E-Verify to issuing parking stickers.  South Carolina employers should make sure their to-do lists include new hire reporting required by State and Federal law.

The new hire reporting program was developed by the Integrated Child Support Services Division of the South Carolina Department of Social Services to make sure that non-custodial parents live up to their financial responsibilities to their children.  The program requires employers to report each newly hired or rehired employee within 20 calendar days of hiring the employee. South Carolina law defines “new hire” as “an individual newly employed or an individual who has been rehired who was separated for at least 60 consecutive days or has returned to work after being laid off, furloughed, separated, granted leave without pay, or terminated from employment for at least 60 consecutive days.” Employers who transmit reports online are to file semi-monthly but not less than 12 or more than 16 days apart. A multi-state employer may designate one state in which it will transmit the report and notify the Secretary of the U.S. Department of Health and Human Services regarding which state it designates.

In the report, the employer must provide the newly hired employee’s name, address and social security number. If the information provided matches a record in the State Case Registry, DSS will notify the employer and provide instruction on withholding from the employee’s income amounts to cover his or her child support obligations.

Employers who fail to comply with the new hire reporting requirements are subject to a civil penalty of no more than $25 for the second offense and every offense thereafter, unless the employer can demonstrate good cause for not reporting the hiring, or $500 for each offense if the failure to report is the result of a conspiracy between the employer and the employee to not supply the report or to supply a false or incomplete report.

Wyche at Work’s Employment Team Recognized amongst “Best Law Firms” in Employment Law Categories

Wyche at Work’s employment practice group has been named a Greenville “Best Law Firm” by U.S. News – Best Lawyers® in 2015. The selection is based on a rigorous evaluation process that includes client and lawyer evaluations, peer reviews from leading attorneys in each practice area, and review of additional information provided by law firms as part of the formal submission process.  Wyche at Work was pleased to receive a Tier 1 ranking in Greenville for the employment advice and employment litigation arena and congratulates other Wyche lawyers and practice groups that were similarly recognized.

Wyche at Work wishes you a Happy Holiday season and looks forward to 2015 with another update!

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Wyche, P.A.

Wyche is a full-service law firm that has practiced law and served the community for 100 years. In that time, Wyche has participated in landmark litigation, served as counsel on cutting-edge transactions, and provided community leadership that has helped shape and drive our region’s growth and success. With offices in Greenville, Spartanburg, and Columbia, Wyche is the South Carolina member of Lex Mundi, the world’s leading association of independent law firms.

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