Delaware Employment Law Blog

"Give Me Some Credit!" Maybe that's how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan's Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of "race raters" to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan's Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC's case had to be dismissed.

There are several interesting considerations arising out of this litigation. First, as the Court's decision noted, the EEOC itself uses credit checks to vet job applicants! This should not come as a great surprise, as many employers use credit checks as one of a litany of tools at their disposal to identify the best-qualified candidates. Nonetheless, for an agency that has widely publicized the pitfalls of background checks in the hiring process, its adoption of the practice calls its hardline stance into question.

Second, the EEOC's past enforcement practices gave rise to many of its difficulties in this case. Many employment law attorneys discourage their clients from collecting race, gender, and other protected-characteristic data during the application process. In the past, the EEOC has used such information to support disparate hiring claims. Kaplan, in complying with EEOC best practices, deprived the EEOC of information that it needed to prove its case, thereby leading to the rejected "race rater" approach.

Finally, many employment law experts and EEOC-watchers are wondering if the Court's decision will put a damper on EEOC enforcement efforts directed at background checks. As readers of this blog know, background checks have been in the EEOC's cross-hairs for quite some time, with new guidance issued on the use of criminal background checks in April 2012. In light of the hurdles faced in this case, many are speculating that the EEOC may back off of its efforts to litigate these issues, focusing instead on conciliation efforts.

Only time will tell. In the meantime, employers can rejoice in a victory for the reasoned and supportable use of pre-employment credit checks.

Employers' Ban-the-Box initiatives are taking hold in many states and municipalities. The City of Wilmington has joined the ranks of employers no longer requiring information on an applicant's criminal history at the time of job application. Mayor Baker signed an executive order on Monday that removes a question about criminal convictions from city job applications.

According to Mayor Baker, the city will now conduct criminal background checks only on applicants who have received a conditional job offer. Public safety jobs in the police and fire departments are the only positions excluded from the order.

Mayor Baker's initiative is a good idea for many reasons. According to the article, nearly one in four job applicants has some kind of criminal past. That is a significant portion of the population who could be automatically denied employment, and deprived of the opportunity to be a productive member of society, by employers taking an inflexible position on criminal background. Moreover, the practice of not hiring applicants with a criminal record disproportionately affects certain segments of the population: predominantly Hispanics and blacks. Because of this adverse impact, the EEOC has taken a particular interest in this practice.

In order to exclude applicants based on a criminal record and successfully defend an EEOC inquiry, the employer must prove that the exclusion was "job-related and consistent with business necessity." In other words, the employer should be able to articulate its logic if it denies employment to an applicant based on criminal history. For example an employer hiring a cashier position who learns that an applicant embezzled from a prior employer five years ago passes the smell test for exclusion. On the other hand, it is much harder to justify excluding an applicant who is going to load pallets in the warehouse, because he wrote a bad check once. The severity of the crime, its relationship to the job, how long ago it was committed, are all factors that should be considered with each decision.

In April of last year, the EEOC issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records. The Guidance laid out the statistical case for a heightened scrutiny of criminal background checks. While it does not outright ban asking about criminal history on a job application, it does strongly discourage the practice, and recommends that the employer wait as late as in the hiring process as possible to request this information. By waiting until an employee has been extended a conditional offer of employment, the City of Wilmington has done just what the EEOC advises.

Previous posts on criminal-history checks for potential employees.

Is an employee who is in the country illegally a covered "employee" under the Workers' Compensation laws? That was the question of first impression presented to the Delaware Superior Court in Del. Valley Field Servs. v. Ramirez, (PDF) No. 12A-01-007-JOH (Sep. 13, 2012). The court concluded that the answer is "yes," and ordered that the former employee, who has since been deported to Honduras, is eligible to receive benefits under Delaware's workers-compensation statute.

Facts
The employee, Saul Melgar Ramirez, was hired in April 2010 as an "independent contractor'"--which the term the court uses to say that Ramirez was paid in cash. In January 2011, he was converted to a regular employee and added to the payroll. When told by his boss that he would need a Social Security number for his I-9 documentation, Ramirez bought a fake SSN card for $180. In February, the payroll service informed the employer that the number was false. Ramirez was deported in March.

In late January, shortly after he was converted to employee status, Ramirez fell down six steps and landed on his back. The company's president, who witnessed the fall, reported the accident to the company's workers' compensation carrier and made arrangements for Ramirez to get medical treatment. The treating physician determined that Ramirez was totally disabled.

Issues
The Industrial Board awarded benefits to Ramirez. (See Cassandra Robert's cleverly named post about the Board's decision, The Dearly Deported--Illegal Alien Status Does Not Work a Forfeiture in Delaware). The employer appealed to the Delaware Superior Court, where it made several arguments, including:

• the employee's "fraudulent inducement" in obtaining the job disqualified him from receiving benefits;
• because, pursuant to the federal immigration laws, Ramirez could not be lawfully hired, those laws preempted the State's workers' compensation laws; and
• the employee's exclusion from the U.S. was the equivalent of being incarcerated, which would result in the suspension of benefits.

Judge Herlihy rejected each of the three arguments in turn and concluded that, despite his status as an illegal alien at the time of his employment, Ramirez was not disqualified from receiving workers' compensation benefits.

Nuts and Bolts
Regular readers may be mildly surprised to read that I actually side with the employee in this case. Not so much because of complicated legal reasons but more because of the basic facts. The employer hired Ramirez. The basic employment relationship involves the performance of services by the employee and the provision of certain compensation and benefits by the employer in return. One of those benefits is workers' compensation insurance.

Here, there is no dispute that Ramirez performed the services for which he was hired. Thus, the employer received the bargained-for benefit of the employment relationship. Ramirez, in return, was entitled to receive, in exchange, the benefits for which he had bargained, including wages for work performed and workers' compensation insurance.

There is no dispute that Ramirez was injured during the course and scope of his employment and there appears to be no dispute as to the extent of his injuries. Thus, it seems fair to me that he receive the benefits of the employment relationship, just as his employer did.

Feel free to disagree with me--I'm open to different opinions. Sean O'Sullivan reported the case in an excellent article in the News Journal today and notes that the case has been appealed to the Delaware Supreme Court. So we'll keep you posted.

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory "the customer is always right" can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who's decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. "Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain," wrote the viewer. "I leave you this note hoping that you'll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle."

I think it's fair to say that Ms. Livingston didn't find the viewer's "concern" all that heartwarming. Heck, it may have even hurt her feelings. But, instead of hiding her pain, she elected to take a different approach and responded to the comments on the air. Her response took the form of an articulate call to arms in which she accused the viewer of being a bully.

I think the story is inspiring for a number of reasons but it also highlights a few different current issues in employment law.

First, there's the continuing discussion surrounding bullies in the workplace or, as I like to call them, "jerks at work." Legislation has been introduced in numerous states over the past five or so years that would, in short, make it unlawful to be a jerk at work. I think there are obvious problems with trying to legislate "jerkiness" but I also recognize the high costs that jerks can have on workforce morale, creativity, and overall productivity. This post at Above the Law provides a recent summary of the various legislative efforts.

Second, there's the as-yet-unresolved question of whether obesity is a disability under the Americans With Disabilities Act (ADA). Historically, courts have been unwilling to include obesity as a protected disability. With this precedent in mind, some employers have refused to hire applicants who are obese and charge higher health-care premiums for overweight employees. But the EEOC has said that the ADA does protect individuals who are morbidly obese. A case filed last year by the EEOC asserting that "severe" obesity was a protected disability under the ADA, recently resulted in a $55,000 settlement for the employee. And a recent decision by the Montana Supreme Court seems to further support that the trend has shifted towards protecting obesity as a disability.

I take very seriously the job of interviewing potential candidates. There are certain things that a candidate can do or say to sabotage their chances at getting an offer. Many of these "offer killers" are more common than you might think. Many of the lawyers I've talked with have expressed frustration about similar behaviors from the candidates they've interviewed. In an effort to help future candidates, I humbly suggest some things to avoid.

Only Fools and Egomaniacs Submit a Less-than-Perfect Resume

No student should ever--and I do mean ever send out a resume that hasn't first been reviewed by several professionals. Whether it's through your school's Career Services department, through a formal resume-review program, or just by the smartest professional adults you know, there are plenty of resources for having your resume reviewed.

When I receive a resume that misses the mark in even the smallest way, I find it difficult to take the candidate seriously. It tells me that the candidate has one of two equally undesirable personality traits. He is either: (1) sloppy and lazy; or (2) thinks he is smarter than everyone else. There are no other explanations for a student who fails to have his resume reviewed (repeatedly) prior to submitting it. I do not want to work with a new lawyer who falls into either category.

One Error In a Cover Letter Is One Error Too Many

The same rules apply with respect to cover letters. I cringe when I think of the number of times I have seen a cover letter that starts with, "I am a second year law student" instead of the properly hyphenated, "I am a second-year law student." It's called a phrasal adjective, kids. It's ok if you don't know what one is but you'd better find someone who does so they can point out your mistake.

If a dork like me receives a cover letter that contains an error in the first sentence, you're facing an uphill battle. And not just because of your claim, two paragraphs later, that you have "outstanding writing skills." For me, the real frustration is that you could have gotten right, you just didn't bother to take the time to ask someone. You have a legal-writing teacher, don't you? Ask him or her to look at your letter and thank him or her profusely if they return it to you covered in red ink.

Get the Name Wrong and You've Got No Chance

The cardinal sin for cover letters, though, is not grammatical. It's far, far worse. Although far less common, I am still amazed when I read a cover letter that, at least once in the body of the letter, makes reference to the wrong firm.

Yes, it happens. Usually right around the third paragraph, which must be when students grow weary of editing their own work, the author reiterates how confident she is that she will be an attribute to Smith, Jones, and Smith, LLP. Except, I don't work for Smith, Jones, and Smith, LLP. Smith, Jones, and Smith, LLP, is my firm's competitor.

To me, this error demonstrates the candidate's lack of editing skills and, more important, lack of interest. Neither of which are positive qualities in a potential new hire.

Your Resume Is Not the Place to Demonstrate Your Creativity

Creativity is a desirable trait for a lawyer. But resumes are not the place to show us how creative you can be. Save it for your legal analysis. There are two common failures in this regard.

First is the Overly Long Resume. Legal resumes should be one page in length and no more. You are not, I guarantee, so amazing as to require additional pages. Brevity in writing is a skill, so start practicing.

Second is the Oddly Formatted Resume. Lawyers don't use crazy fonts. If you want to demonstrate your prowess for typeface, go into graphic design, not into the practice of law. Your resume is not the place to use distracting borders or other "fun" formatting techniques.

Mind Your Manners

Try to recall every lesson your mother ever taught you about proper etiquette. Then try harder to remember some more. And take them to heart.

My entire interaction with you is limited to a 20-minute interview. None of these 20 minutes should be spent slouched in your chair. Sit up straight. Look me in the eye when you are answering a question. And don't interrupt me when I'm speaking. The same rules apply in the courtroom and I don't want to have to teach these rules to you now--you've got plenty of other things to learn, trust me.

Speak Like a Grown-Up, Even If Your Interviewer Doesn't

Language matters. Word choice matters. We are lawyers and we care how you speak. Do not use any words such as "cool" or "yeah" during your interview. And, I know it's hard but try to limit the amount of times you say the word, "like." You wouldn't believe how many times a candidate utters that word during a short interview. It would make your head spin. I understand that this is a habit that is difficult to break. But try anyway.

Be wary if your interviewer is on the younger, cooler side of the lawyer spectrum. I am sure that I tend to come off as more casual than many of the interviewers that candidates meet. But don't let my preference for pink fool you. I still expect you to conduct yourself in the same way that you would if I was wearing black pinstripes.

I may be partly to blame for this casual leaning because of my inclination to be friendly and my desire to make the interviewee feel comfortable. But being comfortable in an interview is not the same as being comfortable in a college dorm room. Keep this in mind.

Some Parting Thoughts

Candidates of the future, you have been warned. Now that you know what bothers your interviewer, it's up to you to avoid these pitfalls. And, once you land the gig, consider reading this article about ways to make sure you get an offer to return. The cleverly named article was written by Ben Potts, an all-star summer associate who recently finished his first summer in our firm's summer-associate program. Take his advice, he writes from experience and his suggestions are dead-on.

Charlie Plumb, Oklahoma's super-star employment lawyer of the year, ECN rock star, and, according to Jon Hyman, the "world's nicest guy," wrote a great post on his firm's Employer LINC blog yesterday about a Philadelphia case straight from the we-can't-make-this-stuff-up department. In shortened form, the story goes as follows:

Customer goes to KFC for a bucket of chicken and is pistol whipped by a gun-toting employee working behind the counter. What incited the employee to violence? Apparently, Customer took too long to choose which of the mouth-watering sides he wanted with his chicken. And, because nobody likes to get pistol whipped--not even for a bucket of the Colonel's finest--the customer sued the restaurant chain, alleging negligent retention based on its failure to conduct a background search on the pistol-packing employee, who, you may not be surprised to learn, did in fact have a criminal history.

Being the all-around funny man that he is, Charlie tells this saga in a very funny way. But, rightly so, he emphasizes out the importance of the court's decision dismissing the customer's claims. If the court had ruled differently, it could have set precedent that employers must, as a matter of law, conduct a criminal background search on every potential employee, regardless of position.

Now, if I can just figure out how the guy from Tulsa beat me to such a great story in my own backyard . . .

Regarding Jon Hyman's complimentary description of Charlie Plumb, I suppose it would be appropriate to say, "it takes one to know one." On his Ohio Employer Law Blog this week, Jon wrote a great post about the TLC employers should give to new employees during the onboarding process.

And, sticking with the lovey-dovey theme, I'll point you to Dan Schwartz's post from Wednesday, in which he tosses a whole bunch of kudos all around the blogosphere, calling particular attention to 10 of his favorite employment-law bloggers--including me and Jon--thanks, Dan.

Now, one for the haters. Admittedly, there is a time and a place for all of this warm and fuzziness. And that place is not always the workplace. A post on MSNBC.com highlights the problem of the awkward office hug. The post quotes various professionals who lament the awkward moment when they went in for the hug only to realize, mid-embrace, that a handshake definitely would have been the better choice.

Awwwwkward!

I've had this discussion with female colleagues on many occasions but have never seen any kind of consensus. I tend to just do whatever I'm inclined to do at the moment--I certainly don't give any kind of advance thought to whether I'm going to greet a coworker or client with a handshake, hug, or cheek kiss. I suppose I'm more casual about these interactions than some of my friends. But maybe that's because I've not yet had the unfortunate experience of the awkward office hug.

Here's to hoping you have absolutely no awkward encounters this weekend and that you meet lots of kind and heartwarming folks, including a lawyer or two.

The New Jersey Assembly passed that State's version of a password-privacy law yesterday by a vote of 77-0. The Bill, AB 2878, is now sent to the State's Senate, reports NJ.com. Much like the Delaware Workplace Privacy Act, which currently is pending in the Delaware House of Representatives, the New Jersey Bill has some significant flaws.

Like Delaware's Bill, and similar Bills pending in States across the country, the New Jersey Act is being promoted as a "password-privacy" law, intended to prevent employers from asking employees and applicants for their passwords in order to access the individual's social-networking site, such as Facebook or Twitter. However, as I have written about the Delaware Bill, the proposed law goes much farther than that.

In the case of New Jersey's Bill, employers would be prohibited from asking not only for an individual's password, but also for his or her user name and even whether the individual even has a social-networking site in the first place. Even more bizarre is the provision of the law that would prohibit an employer from requiring whether an employee or applicant to provide the employer with "access" to the individual's social-networking site "in any way." It is not clear whether this provision would prohibit a supervisor from sending a Facebook friend request or an invitation to connect via LinkedIn.

This lawmaking trend continues to make the news, despite the continued absence of any stories of employers who engage in the practice. Maryland was the first State to sign a similar law into effect. Illinois was the second State to pass a similar law, which now awaits the Governor's signature. You are welcome to join me for a free webinar on the topic, sponsored by the Employment Law Alliance, on Thursday, July 12.

Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show's concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the "leaks in the dam" so to speak.

An episode that aired last week, called, "Managing Disaster," could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant's manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the "Old Lady"

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we'll call him "Manager," despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered "I'm 35," Manager nearly fell out of his seat. He quickly sent her on her way and told her he'd be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah "was like, in her 30s--she'd be like a mother in here!!"

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I'd guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn't already shown his true colors during Sarah's interview, he took it to an entirely new level with Destiney. By the end of the "interview," though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important--"as long as you're cute."

Ethical Standards Lower than a Short Skirt

Seeing that he couldn't ask her about anything relevant to the duties of the job, I guess it's natural that Manager turned to other topics. In this case, Manager chose "partying," and began a series of questions about Destiney's after-hour activities, such as whether she liked to "party" and whether she liked to go clubbing, which "they" (presumably, Manager and his creepy friends), "did all of the time."

The low point of the "interview" came when Manager touched Destiney's knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like "partying" and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant's owner, must have thought as he saw Manager Creepy touch Daughter Destiney's bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren't, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I've perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

Sex, drugs, and rock 'n roll. Employment law can involve any or all three. Which explains why it takes a certain personality to really love this gig. Lately, though, I've seen a bevy of employment-law stories involving claims based on or involving beautiful people.

Last week, for example, I reported on yet another story involving a woman who claims she was fired from her data-entry job in a lingerie warehouse for being too sexy. [Ed. Note: This story, which involves a woman alleging she was too sexy for her job in a lingerie warehouse owned by Orthodox Jews, should clear up any doubt about why I love my job.] This wasn't the first story of this kind, though. I've reported about at least two similar claims in the past couple of years. And I recently reported about a gender-discrimination claim based on the plaintiff's part-time job as a dancer.

Michael Schmidt of the Social Media Employment Law Blog reports a different type of case involving exotic dancers. [Ed. Note: Michael's post is overflowing with hilarity in the form of well-crafted double entendres. For a great read, be sure to jump over to his original post, Slowly Stripping Away Privacy Rights. Brava, Michael!] In In re Penthouse Executive Club Compensation Litigation, No. 10-cv-1145 (KMV) (S.D.N.Y. May 10, 2012), the employer-defendant sought to compel one of the plaintiffs, an "entertainer in the Penthouse Executive Club," to produce nine pages of Facebook messages that she'd exchanged with other plaintiffs and with non-parties about others joining the FLSA suit.

The judge considered the motion in the same way any similar motion would be considered. She found that the Facebook messages sent to non-parties were "prepared in anticipation of litigation" and, as such, were protected by the work-product doctrine because they were "descriptions of conversations with Plaintiffs' counsel regarding litigation strategy, as well as responses to questions about the lawsuit." On the other hand, Facebook messages sent by non-parties to the plaintiff were not subject to the same protections and had to be produced.

And here's a twist on the theme. Instead of claims brought by beautiful people, here's a story brought against beautiful people. The owner of Marylou's, a coffee shop in Rhode Island known for employing beautiful baristas donned in pink shirt, is speaking out against the EEOC. The coffee shop has been under investigation for more than a year by the federal agency, which claims to be investigating the business' hiring practices. There has not been a complaint of discrimination, though, and many members of the community are outraged at the expenditure of federal funds and the cost imposed on the business in the absence of any actual charge of wrongdoing.

Maybe the EEOC is just trying to balance out all of those don't-hate-me-because-I'm-beautiful claims.

Employers who request an employee's or job applicant's Facebook password continue to face pushback in legislatures across the country. As I posted last week, several states have introduced bills that would prohibit this type of coerced Facebook access. These states are following Maryland's example--Maryland was the first (and only, at the moment), to pass this type of law.

Two U.S. Senators were the first on the bandwagon, though, but their bill was unsuccessful. But a new version of the bill made its way back to the House of Representatives on Friday, courtesy of New York congressman Eliot Engel (D).

The bill, Social Networking Online Protection Act (SNOPA), which is cosponsored by Rep. Jan Schakowsky (D-IL), would restrict current or potential employers "from requiring a username, password or other access to online content," reports ZDNet.com. Specifically, the bill would prevent employers from seeking access to social networking sites "to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information."

SNOPA, like some of its state-law counterparts, would extend to colleges, universities and K-12 schools.

Stay tuned as this rapidly changing area of the law continues to develop.

See also:
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
Maryland Law Makes It Unlawful to Request Facebook Passwords from Job Applicants
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
Should Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords

The EEOC released Guidance on the Consideration of Arrest and Conviction Records Under Title VII of the Civil Rights Act of 1964 (PDF)
This guidance, issued on April 25, 2012has been much anticipated since the EEOC held a public hearing on this topic last summer. If you were not already aware of the issue, the crux is this: arrest and incarceration rates are significantly higher in certain ethnic groups than others. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Therefore, if an employer exclude individuals based solely on their criminal records, that decision is likely to disproportionately affect certain ethnic groups, thereby violating Title VII.

The Guidance discusses the difference between arrest and conviction records, and explains what factors must be considered in determining whether or not consideration of criminal history will be determined to be "job related and consistent with business necessity."

The Guidance does not, however, address credit checks, which were also the topic of a public hearing by the EEOC. Some sources have indicated initial drafts of the guidance provided that there would almost never be a business necessity to use credit for employment--and stirred up quite a bit of controversy. For now, though, it remains to be seen what the final guidance on credit checks will say.

The release of the Guidance on criminal records was perfectly timed with YCST's upcoming Annual Employment Law Seminar, on May 9, when Lauren Moak and I will discuss the topic of background checks in a dedicated session. For a complete analysis of this Guidance and what it means for employers, we will see you there!

Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.

What also is a reality is the many variations of cyber-screening that exist. On the most moderate end of the spectrum are employers who have instituted a legally defensible practice, as I've written about previously. On the most extreme and unsavory end are employers who require applicants to turn over passwords and log-in informaiton for their social-networking accounts. Bozeman, Montana was the first employer to make the news for this practice; Maryland's Department of Corrections was the most recent.

Many employment lawyers, including me, strongly object to this practice on numerous grounds, not the least of which is the fact that it violates the terms of service of the social-networking sites. And now, it seems, that there may be some politicians who feel the same way.

Law.com reports that a California legislator has introduced a bill that would protect employers who don't cyber-screen job applicants. And bills are pending in Maryland and Illinois that would prohibit employers from asking applicants for log-in information for social-networking sites. The Maryland law is likely a result of the negative publicity the State received after news broke that the Department of Corrections was requiring applicants to turn over their password and log-in information.

So, will these laws be the wave of the future? Perhaps. Are they necessary? Not really. Or at least they shouldn't be. The terms of service for social-networking sites, such as Facebook, prohibit this type of activity in the first instance. But, as long as stories like the one from the Maryland Department of Corrections keep making the headlines, laws like the ones currently pending may continue to appear in state legislatures.

Want to know the right way to cyber-screen applicants? Check out these articles:
Screening Job Applicants with Facebook: Part 1, Part 2, and Part 3.

You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm's partners, in which he stated, "it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met." Not surprisingly, Mr. Berry's arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry's argument that he signed the "unconscionable" agreement under economic duress.

But this story isn't over! In keeping with the self-aggrandizing attitude evident in Mr. Berry's email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there's the idea that there's no way to guarantee you won't get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit--and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

Part 1 of this series addressed what employers should avoid when using Facebook or other social-networking sites to screen potential employees.  In Part 2, we looked at some of the steps employers should take to minimize the legal risks associated with this practice. In this final part of the series, we look at two more steps that employers should consider implementing into their best-practice routine.

Start Searching

Once your list is created, the rest is easy--but equally important. Designate an individual  who will perform the actual search (i.e., the "Searcher"). Here is the key: the Searcher must not be involved in the hiring decision. Human Resources can perform the search, for example. In smaller organizations without a dedicated HR staff, the manager of one department may be the Searcher when a different department is hiring, and vice versa.

Once the appropriate person is designated, the search may begin. If any of the items on the list are found, the Searcher documents them on the form and, preferably, prints or makes a copy (i.e., with the print screen feature) of the offending material. That information and only that information may then be turned over to the hiring manager for consideration.

The reason this step is so critical is that it effectively prevents the hiring manager from learning information that cannot be used in the hiring process--such as religion, sexual orientation, or other protected characteristic. This separation of knowledge can be a key component to defending against a failure-to-hire lawsuit.

Start Talking (Again)

In the event that a hiring manager is inclined not to hire a candidate as a result of what turned up during the online search, there are a few additional steps that should be taken. First, the hiring manager should present the candidate with the information. Identify the basis for concern and provide the candidate with a meaningful opportunity to explain. There is, after all, more than one John Smith registered with Facebook . And, since the Searcher has no interaction with the candidate, mistaken identity is not out of the realm of possibility.

Finally, make sure that everyone in the organization with any connection to the hiring process is aware of and understands the new practice. Make it clear to supervisors that they are not to search the Internet for information about a candidate prior to the decision to hire. Have supervisors acknowledge the policy in writing and review it periodically to ensure compliance.