Wyche at Work: January 2013 Employment Update

Prepared by Ted Gentry
January 2013

Hiring Highlights

In response to the job growth trend in South Carolina at the end of 2012, Wyche at Work launched a series of articles on hiring issues. We have previously discussed E-Verify requirements and the need to question applicants about any existing contractual obligations that might interfere with their new job duties. In the December edition of Wyche at Work, we highlighted the increasing use of background checks to make hiring decisions and the resulting liability that employers face under the Fair Credit Reporting Act for doing so.

This month we want to highlight another important source of potential liability for employers using background checks: Title VII’s prohibition against employment discrimination. Employers should comply with new Equal Employment Opportunity Commission guidelines on using background checks to minimize their exposure to employment discrimination suits.

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. The EEOC is charged with enforcing the provisions of Title VII. As we set out in a previous edition of Wyche at Work and radio interview last year, the EEOC has a long record of scrutinizing the use of arrest records. The improper use of such records could be a discriminatory practice in potential violation of Title VII. To provide clarity for employers who use criminal records in their background checks, the EEOC recently released guidelines for using applicants’ arrests or convictions in employment decisions.  These guidelines caution employers to:

  1. Avoid asking applicants about arrests or convictions during initial interviews;
  2. Avoid bright line rules disqualifying applicants based on arrests or convictions;
  3. Develop a policy which relates characteristics of certain crimes to non-qualification for certain jobs; and
  4. Implement that policy uniformly to applicants belonging to any protected class.

To be clear, the EEOC guidelines do not guarantee an employer’s compliance with the provisions of Title VII. However, they are a great first step in avoiding employment discrimination charges based on background checks.

As part of a broader Strategic Enforcement Plan for 2013-2016, the EEOC is targeting the use of background checks as class-based hiring practices that discriminate against protected classes. Please let us know if we can help you determine if your use of background checks is consistent with current EEOC guidelines or whether we can help develop policies to ensure that it is.

Fourth Circuit Adopts Employer-Friendly Interpretation of the Pregnancy Discrimination Act

Earlier this month, the Fourth Circuit Court of Appeals, which covers South Carolina, held that employers need not accommodate the physical limitations of pregnant employees more than they would those of other employees. In Young v. UPS the Court held that the Pregnancy Discrimination Act, which requires employers to treat pregnant employees the same as other employees, does not require employers to provide special accommodations to pregnant workers even when such accommodations are provided to a defined class of non-pregnant workers with similar limitations pursuant to a facially neutral policy. In Young, the court found no direct evidence of pregnancy discrimination where UPS did not provide light duty work to pregnant workers even though it provided a light duty accommodation pursuant to a written policy for other classes of employees, i.e., those injured in on-the-job accidents. Because UPS had established a “neutral, pregnancy-blind policy” that set forth the parameters for accommodations for employees with certain restrictions, the failure to provide the same accommodations to pregnant employees was not discriminatory.

In essence, the court held that pregnant workers were treated like other similarly-situated employees who did not fit in the class of accommodated employees defined in the policy. While this case emphasizes that employers need not provide pregnant workers with special accommodations, the decision was supported by the employer’s strong policy and record of applying a neutral, pregnancy-blind policy. If you need assistance in crafting these types of policies, please do not hesitate to let us know.

EEOC: ADA May Require a Longer “Leave of Absence”

In a complaint filed against a nursing and rehabilitation center, the Equal Employment Opportunity Commission has alleged that the employer violated the Americans with Disabilities Act by failing to provide a reasonable accommodation to an employee diagnosed with cancer. The employer approved a leave of four to six weeks for the employee’s surgery and recuperation but later denied her request, accompanied by her doctor’s note, for an additional one month’s leave. Instead, the employer terminated her for failing to report to work. While this termination may seem intuitively permissible, the EEOC alleged that it violated the ADA and is seeking back pay, compensatory damages and punitive damages.

The ADA requires covered employers to provide disabled employees with a reasonable accommodation, unless such an accommodation would be an undue hardship to the employer. Since the EEOC recognizes extended leave as a reasonable accommodation, employers should not be quick to assume that they can terminate an employee who does not return from FMLA or other leave when anticipated. If you have any questions about terminating a disabled employee or exploring options for reasonable accommodations – such as intermittent leave or modified schedules – please let us know.

Regulatory Round-Up

In late December 2012, federal regulatory agencies released their regulatory agendas, outlining actions they will likely pursue in the upcoming fiscal year. Here are some highlights.

Department of Labor

According to the Department of Labor’s Statement of Regulatory Priorities, the agency will continue its vision of Good Jobs for Everyone (jobs that increase workers’ incomes; assure workers are paid wages and overtime; are in safe, healthy, fair and diverse workplaces; provide workplace flexibility; improve health benefits; and assure workers have a voice in the workplace). To achieve these “good jobs,” the DOL plans to continue to use increased enforcement actions, increased education and outreach, and regulatory actions that foster compliance. The DOL will also continue its Plan/Prevent/Protect compliance strategy, first introduced in the Spring 2010 Regulatory Agenda and designed to require employers to comply with DOL laws and regulations before the Labor Department investigator arrives at the workplace.

Occupational Safety and Health Administration

According to a new report issued by the Occupational Safety and Health Administration, the number of whistleblower complaints continues its upward trend, with a total of 2,787 whistleblower complaints filed in fiscal year 2012.

Equal Employment Opportunity Commission

The EEOC announced last week that it received 99,412 private sector workplace discrimination charges in 2012. The year-end data also show that retaliation, race, and sex discrimination were the most frequently filed charges. The announcement also reports that the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits, and 10 systemic suits. EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.

As we noted above, the EEOC also released its Strategic Enforcement Plan for Fiscal Years 2013-2016. The plan identifies hiring, pay, and harassment as enforcement priorities, along with protecting immigrant and other vulnerable workers, addressing emerging and developing issues, and preserving access to the legal system.

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.
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