Wyche at Work: May Employment Law Update

Prepared by Ted Gentry
May 2012

EEOC Issues Enforcement Guidance on Employer Use of Arrest and Conviction Records

Following several public meetings, the Equal Employment Opportunity Commission (EEOC) has issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. In light of the EEOC’s recent $3.13 million settlement with Pepsi, when an EEOC investigation concluded that a background check policy disproportionately excluded black applicants from employment, this resource takes on particular importance.

In a Q&A issued with the updated guidance, the EEOC reaffirmed the following principles:

  • An arrest does not establish that criminal conduct occurred;
  • Convictions are considered more reliable evidence of disqualifiable conduct;
  • Broad criminal record exclusions disparately impact employees based on race and national origin; and
  • A policy that excludes all applicants with a criminal record from employment will violate Title VII, unless required by federal law.

Based on this approach, the EEOC recommends that employers not ask applicants about arrests. Criminal conviction inquiries should be job-related and individually assessed to determine whether the criminal conduct exclusion is job-related and consistent with business necessity. The relevant factors for this assessment include the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.

The Enforcement Guidance includes a “best practices” section for employers who are considering criminal record information related to an employment decision. Suggestions include:

  • developing a narrowly tailored written policy for screening applicants and employees for criminal conduct;
  • training hiring managers and recruiters in its implementation;
  • limiting inquiries to records for which an exclusion would be job-related and consistent with business necessity;
  • maintaining confidentiality of records.

Following the issuance of this Guidance, the U.S. House of Representatives passed a bill approving the EEOC budget with amendments that would prohibit the use of any of the funds appropriated from being used by the EEOC to implement, administer, or enforce the Guidance. The Senate has yet to pass a final appropriations bill, which will need to be reconciled with the House bill.

Please let us know if we can help you review or revise your background check policies.

EEOC Rules Transgender Status is Protected by Title VII

A transgendered individual’s claim of discrimination based on gender identity may proceed under Title VII of the Civil Rights Act, according to a recent decision by the EEOC. The EEOC concluded that intentional discrimination against a transgendered individual is discrimination based on sex and therefore violates Title VII. While it is uncertain how such a claim might be addressed by the courts, employers should be wary of discriminating against those transitioning from one gender to another as well as anyone who does not meet cultural and social norms for gender identity.

Retirement Plan Fee Disclosure Requirements Take Effect May 31

Plan administrators (which are often defined as the companies sponsoring benefit plans) must begin complying with new fee disclosure requirements no later than May 31, 2012. Information that plan administrators are required to provide is detailed in the Retirement Plan Fees and Fee Disclosure article, written by Wyche attorney Andy Coburn.

Unpaid Internships

With exams wrapping up and summer around the bend, internships are on the minds of students and employers. While having an unpaid intern work for your company may seem like a win-win proposition, providing valuable experience to a trainee while alleviating the crunch of employees taking time off for summer vacations, the idea is not that simple. Several class action lawsuits filed by unpaid interns have brought new focus on this practice. Fact Sheet #71 published by the Wage and Hour Division of the Department of Labor offers guidelines on unpaid interns. For a position to qualify as an unpaid intern, it must, among other things, be similar to training given in an educational environment and be for the benefit of the intern.

Accessing Your Employees’ Social Media Accounts

As highlighted by Wyche attorney Ted Gentry at a recent seminar on “HR Trends,” Maryland became the first state to pass a law prohibiting employers from asking for social media passwords or accessing social media accounts of applicants and employees. The South Carolina General Assembly and the U.S. Congress are among other legislative bodies considering similar legislation that would make it illegal to require or request that an employee or applicant provide email or social media account information and would punish adverse actions for refusal to provide a password. While requesting or accessing an applicant’s or employee’s social media passwords is becoming de rigueur in some industries, there are many reasons for caution, and the costs may outweigh the benefits. Employers are not likely to obtain relevant, helpful information by accessing social media sites of applicants or employees, and the request itself could negatively impact employer/employee relations. Plus, an employer could obtain nonpublic information (such as the applicant or employee’s religion, marital status, sexual orientation, etc.) that could result in a discrimination charge. We will keep monitoring this trend and update you as it evolves.


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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