EEOC: Consideration of Arrest and Conviction Records in Employment Decisions

• An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
  
• The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.
  
• The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.
  
• The Guidance discusses the differences between arrest and conviction records.
  
  • The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
    
  • In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
    
• The Guidance discusses disparate treatment and disparate impact analysis under Title VII.
  
  • A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
    
  • An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
    
    • National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
      
    • Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
      
      • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
        
      • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
        
• Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
  
• State and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7.
  
• The Guidance concludes with best practices for employers.
  

NLRB Posting Requirement - Not to be Implemented!

In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.

In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule.

Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

NLRB Employee Rights Poster Requirement Upheld!

A federal district court has upheld the National labor Relations Board (NLRB) requirement to post notice advising employees of their rights under the National Labor Relations Act (NLRA). This Employee Rights posting must be posted in a conspicuous place by April 30, 2012.

Even though the federal district court for the District of Columbia on March 2nd upheld the NLRB has authority to require the workplace poster, the court did assert some limits of the enforcement mechanisms. Although the District Court in the District of Columbia reached a decision, the decision can be appealed.

The district court ruled in effect that the NLRB “lawfully made” the rule that requires private employers to post the “Employee Rights Under the National Labor Relations Act” notice. Hence, the notice does not violate employers’ free speech rights. On the other hand the court did rule that failure to post the “Employee Rights” notice is not an unfair labor practice. The court did not rule out the possibility that failure to post could be considered evidence of an unfair labor practice. The court decision did not change the requirement to post the “Employee Rights” notice. National Safety Compliance has incorporated this posting in its Federal Labor Law Poster in October of 2011.

2013 DOL Budget Q & A

Many leaders from the US Department of Labor held a Questions & Answers session on February 13th. Included in the panel was Nancy Leppink, Deputy Administrator of the Wage and Hour Division (WHD). Below are the questions and Ms. Leppink's responses.

Could you comment further on the WHD efforts that will be funded by the increases mentioned earlier? ($10 million to address misclassificaton of employees and $6 million for increased FLSA and FMLA enforcement)

Elizabeth, thanks for the question. About $6.4 million will used be to hire investigators to enforce FLSA (overtime and Section 14(c)) and FMLA, and about $3.8 million will be used to hire investigators for increasing enforcement related to misclassificaiton of employees and to educate employers and employees about their rights and responsibilities.

For Tricia Smith: What trends are becoming apparent with the issue of worker misclassification regarding DBRA noncompliance, and is there anything good to report?

Steven, thanks for your question! In 2011, the Wage and Hour Division collected nearly $18 million in back wages related to DBRA violations for more than 8,000 workers.

Will this proposed budget have any impact on DOL enforcement efforts with respect to "Hot Goods"? If so, what do you see as the impact? And, what industries will be affected the most?

JMH, thanks for your question. The Wage and Hour Division has indicated that it will use all tools available, including the FLSA hot goods provision, to ensure compliance among violators and to deter violations among other employers. The division will continue to focus on low-wage industries that employ vulnerable workers, including agriculture and garment.

How many more inspectors would the WHD budget increases support?

Hello, Elizabeth. The WHD budget increases would support the hiring of about 92 additional investigators.

For Wage & Hour: What does the 2013 budget mean for Wage & Hour investigations? Will there be any additional investigators hired to combat FLSA violations?

Hi, Michell. Elizabeth had a similar question at 2:11. Please scroll up and see our response to her.

With the DOL's new investigators, is there a percentage that would focus on misclassification vs FMLA violations or is this a dual effort?

We've requested $3.8 million and 35 full time employers for increased enforcement related specifically to misclassified workers.

Will DOL be working with IRS on misclassification cases?

Pat, thanks for the question. In 2011, DOL and IRS signed a memorandum of understanding to improve coordination on misclassification. Information is available on our website, discussing the MOU with the IRS and similar MOUs with individual states: http://www.dol.gov/whd/

The majority of violations in wage and hour division falls between misclassification of employees, lack of payroll records keeping and overtime pay. what plan does this division has to minimize these problem areas- are planning outreach programs or training. would you be need private sector help in providing assitance in form of training, if so what provisions in budget would be use for such purpose

In response to the growing national problem of misclassification, WHD is employing a number of strategies including targeted enforcement and outreach to workers and employers. Additional information about our misclassification efforts is available online at http://www.dol.gov/whd/workers/misclassification/

What commitment does the DOL have for the enforcement of Davis Bacon in 2013?

Hi, Tyra. Thanks for your question. The Wage and Hour Division will continue its emphasis on enforcing the prevailing wage requirements of the Davis-Bacon program in 2013.

2012 Labor Law Posters

The state of Louisiana has released its updated Earned Income Credit posting. Louisiana is the last Major change anticipated to be made for January 2012. Now that we are in "full swing" of the new year. Employers must ensure they are in compliance with the many Federal and State government agencies that require a labor law posting. National Safety Compliance has compiled a comprehensive list of all the states and provided that list and any Major changes that would mandate an update to your poster.

State	Changes Since January 2011	Affected Posting
Federal	YES	01/09-USERRA 11/09-EEOC Posting (GINA Information) 09/11-NLRB Posting added 04/12-NLRB Posting required
Alabama
Alaska		07/09-Minimum Wage
Arizona	YES	01/10-Discrimination Poster 01/11-Minimum Wage 01/12-Minimum Wage
Arkansas
California	YES	01/09-Unemployment Insurance 01/12-Family Medical Leave Act 01/12-Discrimination & Harassment in Employment
Colorado	YES	01/10-Discrimination Posting 01/11-Minimum Wage 01/12-Minimum Wage
Connecticut	YES	01/09-Minimum Wage 01/12-Paid Sick Leave (new posting)
Deleware		07/09-Minimum Wage
District of Columbia		01/09-Fair Housing* 01/11-Accrued Sick & Safe Leave Act (new posting)
Florida	YES	01/09-Minimum Wage 07/09-Minimum Wage 01/12-Minimum Wage
Georgia
Hawaii
Idaho
Illinois		06/08-Minimum Wage 09/08-Dept. of Labor Posting (NEW)
Indiana
Iowa
Kansas
Kentucky
Louisiana	YES	01/10-Earned Income Credit 01/11-Earned Income Credit 01/12-Earned Income Credit
Maine		10/08-Minimum Wage
Maryland		07/09-Minimum Wage
Massachusetts		06/08-Minimum Wage
Michigan		07/09-Minimum Wage
Minnesota
Mississippi
Missouri		01/09-Minimum Wage 07/09-Minimum Wage
Montana	YES	01/09-Minimum Wage 01/12-Minimum Wage
Nebraska
Nevada		07/09-Minimum Wage
New Hampshire	YES	01/09-Criteria to Establish an Employee or Independent Contractor 01/12-Minimum Wage
New Jersey	YES	07/09-Minimum Wage 01/12-Employer Obligation to Maintain & Report Records (new posting)
New Mexico
New York		02/09-Correctional Records (NEW) 07/09-Minimum Wage
North Carolina
North Dakota
Ohio	YES	01/09-Minimum Wage 01/11-Minimum Wage 01/12-Minimum Wage
Oklahoma
Oregon	YES	01/11-Minimum Wage 01/12-Minimum Wage 01/12-Family Leave
Pennsylvania
Rhode Island		01/09-Minimum Wage
South Carolina	YES	01/09-Payment of Wages Act 01/12-Labor Licensing & Registration posting update (E-verify statement)
South Dakota		07/08-Unemployment Insurance
Tennessee
Texas
Utah
Vermont	YES	01/09-Minimum Wage 01/11-Minimum Wage 01/12-Minimum Wage
Virginia		07/09-Earned Income Credit
Washington	YES	01/09-Minimum Wage 01/11-Minimum Wage 01/12-Minimum Wage
West Virginia		07/08-Unemployment Insurance 01/11-Unemployment Insurance
Wisconsin		08/10-Fair Employment Law
Wyoming		02/10 - Minimum Wage posting 02/10 - Employee Notice posting
*Only applicable to certain business types, such as: property managers and real estate.
To ensure your compliance with state and federal regulations, please visit us at 2012 Labor Law Posters Laminated

2012 Hawaii Labor Law Poster Released

The Hawaii Civil Rights Commission has released the new Discrimination posting for 2012. National Safety Compliance has made all necessary changes to its #LP9HI - 2012 Hawaii Labor Law Poster - Laminated and it is now shipping. The following are the Major changes that the state of Hawaii has made to its required postings:

There have been several Minor changes to the postings to ensure it is the most accurate poster for the state of Hawaii.

Please remember this poster includes all required postings by the state of Hawaii, but employers must also post the #LP9FED - Federal Labor Law Poster to suffice Federal regulations. These posters, along with all state posters, are available for purchase from National Safety Compliance at a very reasonable price. The only 2012 State Labor Law Poster not released is Louisiana.

2012 Oregon Labor Law Poster Released

The Oregon Bureau of Labor and Industries has released the new Minimum Wage posting for 2012. National Safety Compliance has made all necessary changes to its #LP9OR - 2012 Oregon Labor Law Poster - Laminated and it is now shipping. The following are the Major changes that the state of Oregon has made to its required postings:

Minimum Wage has increased for 2012.
Agricultural Minimum Wage has also increased for 2012.
Family Leave Act has also had a Major change to its content - added text regarding same-gender domestic partner's children and parents.
There have been several Minor changes to the postings to ensure it is the most accurate poster for the state of Oregon.

Please remember this poster includes all required postings by the state of Oregon, but employers must also post the #LP9FED - Federal Labor Law Poster to suffice Federal regulations. These posters, along with all state posters, are available for purchase from National Safety Compliance at a very reasonable price. The only 2012 State Labor Law Posters not released are for Hawaii & Louisiana.