Milonic JavaScript Menu is only visible when JavaScript is enabled
 
DMI home
 
 

Same Sex Spousal Benefits


You have an employee who work in Texas, one of the 32 states that does not recognize same sex marriage.  The employee  resides in New Mexico, one of 18 states that recognizes same sex marriage.  The employee was married to a person of the same sex in California.

For purposes of determining the employee’s spouse’s eligibility for benefits, do we look at:

  1. State of celebration—where the marriage occurred
  2. State of employment—where the employee works
  3. State of residence—where the employee lives

The answer is 1: state of celebration. Regardless of whether the state in which the employee works or resides recognizes same sex marriage, the employee generally is eligible for spousal benefits under ERISA.  Why?  Please read alert below for legal analysis.

http://duanemorris.com/alerts/IRS_publishes_post_windsor_guidance_5091.html

This blog should not be construed as legal advice, as establishing an attorney-client relationship or applying to specific factual situations.

 

 
 
 
 

Affinity Group Danger Zones


I am pleased to post my recent article for SHRM's HRMagazine: 

SHRM » Publications » HR Magazine » Editorial Content » 2013 » September 2013 » Affinity Group Danger Zones

Legal Trends 
Affinity Group Danger Zones 
Vol. 58 No. 9 
Structure affinity groups so they are lawful. 

9/1/2013  By Jonathan A. Segal  
 
 

Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups.

What are affinity groups? They are groups of employees who have a common interest or characteristic. Sometimes the commonality is based on a factor that is not protected under equal employment opportunity (EEO) laws, such as the employees’ position. Usually, however, affinity groups are built around EEO-protected characteristics, such as race, gender and sexual orientation, and are supported financially by the organization.

There are obvious benefits to having affinity groups. They can increase morale, retention and innovation, as well as business, because of greater inclusion of diverse perspectives.

In some organizations, an affinity group may be seen as the antidote to marginalization of certain groups of employees. Affinity group meetings provide a place to experience business and social inclusion for those who are or feel marginalized.

Yet, these groups, if not structured properly, can have divisive and exclusionary effects. Moreover, there are legal risks that need to be navigated. Just because the goal of the affinity group is laudable does not mean that the group is lawful.

The following four hypotheticals highlight some of the legal and business risks of affinity groups, with recommendations on how to manage them.

Affinity Group For White Men

Employer ABC has affinity groups for women; people of color; and lesbian, gay, bisexual and transgender employees. The employer provides financial and other support for these groups so that they legally would be characterized as benefits of employment.

A group of white men asks to form an affinity group. The HR leader considers saying, "You don’t need one. You already have one; it’s called the senior leadership team," which is made up of white men but for one exception.

The emotion behind the fantasy response may be understandable, but the response is, of course, inappropriate because legal risk would accompany it. Title VII’s prohibition on gender bias knows no gender. The same is true of racial bias. Denying a benefit to employees because they are white and male is, well, discrimination. But that does not mean that the request necessarily needs to be honored.

The key for an organization is to develop upfront nondiscriminatory criteria in determining whether it will provide financial or other support for a proposed affinity group. Among the criteria an organization may consider are the following:

How will the proposed affinity group help its members achieve the company’s mission and goals?

How will the proposed affinity group increase inclusion and business development among the individuals in the group (as opposed to employees generally)?

Are other affinity groups or mechanisms already in place that serve the need addressed by the request?

Making decisions about proposed affinity groups based on the answers to these kinds of questions doesn’t eliminate all legal risks, but it does minimize them.

Let’s return to the white men at Employer ABC. If the organization’s power circle is dominated by white men, the white men seeking to form an affinity group may have an uphill battle. But would that be true for a group of entry-level employees in human resources?

There is no clear-cut answer; rather, it depends on applying legitimate nondiscriminatory factors.

If Employer ABC has an affinity group for women and not one for men, it might consider including men in a broader affinity group on gender that would focus, although not exclusively, on issues women face that men don’t.

It is not that you need men to be part of the group for legitimacy. You don’t. But men can learn from being included, and men who are enlightened about the obstacles that women often face are more likely to become mentors and sponsors for female colleagues.

In her groundbreaking book, Lean In: Women, Work and the Will to Lead (Knopf, 2013), Facebook COO Sheryl Sandberg asks how organizations can survive, let alone thrive, if they exclude half of their talent. She quotes Warren Buffett as attributing his success, in part, to competing with only half of the talent pool.

Isn’t a business going to be more successful if it doesn’t exclude half of its talent—in this case, the half that often has disproportionate power?

Sandberg specifically refers to her many male mentors and sponsors. She recognizes that men are not the enemy; explicit and implicit bias is. And men and women alike have a stake in eliminating it.

Not all champions of equal employment opportunity support affinity groups. One concern is that such groups may separate those they are designed to benefit. This legitimate concern should affect how affinity groups are structured.

Religious Group Exclusion

Your organization has myriad affinity groups but none based on religion. In response, a group of born-again Christians asks for affinity group status and funding.

You don’t check the mission statement. That’s because you have an explicit exclusion for religious groups. Is that lawful? Is it desirable?

To be clear, this is not about saying yes to a Jewish group and no to a Buddhist group. This is about saying no to all religious groups.

Federal law prohibits discrimination based on religion. If you allow groups based on gender and race but not on religion, while treating all religions the same, are you discriminating against religion?

The 7th U.S. Circuit Court of Appeals said no. To quote the court, there are "no cross-categorical" claims under Title VII. In other words, the existence of affinity groups in one category—say, gender—cannot be used as the basis for arguing that it is unlawful not to allow an affinity group in another category, such as religion. (Moranski v. General Motors, 433 F.3d 537 (7th Circuit 2005)).

But other circuits could decide differently. The 7th Circuit’s analysis has been criticized as hostile to religion. Some states could reach different conclusions as well; many states provide greater religious protections than federal law.

Moreover, religion is of vital importance to many U.S. workers. Having a blanket exclusion for religious affinity groups risks alienating people of faith. Even if it is lawful for organizations to exclude religious affinity groups, they do so at their own peril: They risk alienating too much talent.

For those reasons, religious affinity groups should be allowed. The criteria that apply to affinity groups organized around gender and race should apply to them, too.

Nonetheless, there are some requirements that employers may wish to impose on religious affinity groups, such as that the group’s purpose cannot be to proselytize other workers. Appropriate limitations, rather than blanket exclusions, are the solution.

Behind-the-Scenes Discussions

Your company has an affinity group for those who identify themselves as racially diverse. It is principally, though not exclusively, made up of black and Latino employees. Some of the group members are managers.

During conversations, a few group members allege that a manager has made racist remarks. They further note that he gives plum assignments to white employees only.

Wanting the group members to feel comfortable, the managers in the room respect the employees’ wishes and do not report what they have heard.

Later, one of the employees is let go for poor performance. He claims race discrimination and notes in his allegations that management was aware of his concerns and did nothing. Where did management learn of these concerns? In the affinity group.

Managers who participate in affinity groups may place themselves in a Catch-22. They want to encourage open dialogue, but if the dialogue includes allegations of unlawful conduct, they cannot ignore what they know.

If they know it, their knowledge is imputed to the organization. While it is not always clear what an organization’s leaders must do, they cannot do nothing when they learn of potentially unlawful conduct.

To minimize this risk, you may want to make clear that the purpose of the affinity group is not to raise individual concerns and that employees who have them should refer to the employer’s EEO policy and use its complaint procedure.

Further, managers should be careful not to make absolute assurances of confidentiality that they may not be able to honor.

Of course, stating the rules is easier than determining whether a particular comment is a complaint that must be investigated. But you can minimize the risk, even if you cannot eliminate it, by setting parameters upfront.

NLRA Hurdles

Your affinity group of older employees develops a list of proposed changes to the organization. Management listens to the employees and decides to implement some of the changes.

While this sounds like a management success story, it may violate the National Labor Relations Act (NLRA).

Section 8(a)(2) of the NLRA makes it an unfair labor practice for an employer to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support." The term "labor organization" has been interpreted broadly to include a variety of employee participation committees or groups that "deal with" an employer.

It could include affinity groups. Yes, the NLRA could make it harder to achieve equal employment opportunity, the linchpin of affinity groups.

Remember that the statute applies to union and nonunion employees alike. Employees are defined to exclude individuals who are considered supervisors and managers under the NLRA.

You could avoid any NLRA risk by limiting membership in your affinity groups to supervisors and managers. But then why have the groups at all? So, assuming you include employees, how do you manage the risk?

Typically, there is no on-off switch that determines when an affinity group becomes a labor organization at risk of unlawfully "dealing with" the employer. But there are a number of steps you can take to minimize the risk that your affinity group will be a labor organization and that your meeting with and considering its proposals will violate the NLRA as interpreted by the National Labor Relations Board.

You could make clear that the group is not authorized to offer any recommendations to management. Then you would avoid any chance of "dealing with" management. But that may diminish the affinity group’s effectiveness.

If you are going to allow the affinity group to make suggestions, you should stress that it is making suggestions only—just as any individual or group can—which management can consider or reject at its sole discretion. No bargaining sessions, please!

You absolutely should make clear that each member of the affinity group speaks for himself or herself and that the group is not representing those who share its defining attribute. In other words, the group does not perform a representative role. This is important not only for legal reasons but also for business reasons. Employees of a particular gender, race or sexual orientation are not monolithic in their perspectives, and some people may resent having others speak for them.

There are other steps you can take to minimize the legal risk, but they are beyond the scope of this article. The point for now is to be aware that the risk exists and that it should be managed.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_Law.

This articles does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.

 
 
 
 

Is Goat Killing Leave A Reasonable Accommodation? Maybe


The law is clear employers must make reasonable accommodations with respect to religious beliefs, practices or observances of which they are aware, subject to a narrow undue hardship defense.  Easy to state but sometimes harder to apply.

For example, is goat killing leave a reasonable accommodation?  Uh, maybe!

Here’s the background. An employee’s father died.  The employee said he needed to travel to Nigeria for the funeral.  He said that he believed that if he did not perform certain rituals, his siblings would die, too.

What were the rituals?  Slaughtering 5 goats.

The employer said the time away was too long and denied the request. Employee sued.

The employer won at the trial court. But, on appeal, the case was  sent back to the trial court to see if funeral leave was a reasonable accommodation. 

The appellate court said the reference to funeral ritual was enough to put employer on notice that the funeral leave may have been for religious reasons.

Should an employer really have to ask if the funeral ritual is religious?  A bit intrusive?

What if employee wanted a month off? Would that be unreasonable? If yes, where do we draw the line?

And does slaughtering one of God’s creatures not for food or warmth but for sacrifice play any role in this?  What if the employer’s religious beliefs are that animal sacrifice is wrong?

Could we all agree ritual murdering is an undue burden?

Since that is not going to happen, if an employee asks for time off because of death, listen carefully as to why

They want time to be with loved ones?  Feel free to say No

They want time to kill goats? Say No at your peril

When we extend  the law to extreme, we trivialize its protections.

And so the court did.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING T O SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING ATTORNEY-CLIENT RELATIONSHIP

 
 
 
 

She’s Too Sexy For Her Job


The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible.  He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.

In both cases, the manager’s actions are based on feelings.  In both cases, those feeling relate directly to gender.

How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?

Not everything unfair is unlawful.  But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law. 

PLEASE FOLLOW ME ON TWITTER AT: JONATHAN__HR__LAW

HIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR CREATING AN ATTORNEY-CLIENT RELATIONSHIP

 
 
 
 

Boys Without A Club


My most recent blog, Boys Without A Club: http://www.weknownext.com/blog/boys-without-a-club

Published by SHRM's WeKnowNext.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations

 
 
 
 

Jason Collins: Who Will Come Out Next?


I am pleased to post my most recent blog for SHRM's WeKnowNext:  http://www.weknownext.com/blog/jason-collins-who-will-come-out-next.  This blog focuses on how to respond if and when an employee comes out to you.

 

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.

 
 
 
 

Boys' Club Next Door


I am please to post an article I wrote for Fortune on gender discrimination in general and Boys' Clubs in particular: http://management.fortune.cnn.com/2013/05/24/gender-discrimination-law-suits/

 
 
 
 

Boys Clubs Go Viral: TweetChat with SHRM's We Know Next


Please join me, @Jonathan_HR_Law for a #NEXTCHAT with SHRM's @weknownext on "Boys Clubs" in the workplace! March 27 3:00 p.m. - 4:00 p.m.

Hope to "see" you there!

 

 
 
 
 

Twitter Coverage of EEOC Commissioners' "Chat" At the SHRM Employment Law and Legislative Conference


I am pleased to post another blog I wrote this month for SHRM's WeKnowNext.  The blog includes tweets I wrote, during and after, the chat between Commissionrs Feldblum and Lupnic at the SHRM Employment Law and Legislative Confenence in D.C.  They took the "dis" out of DC "disfunction.
 

 http://www.weknownext.com/blog/eeoc-comissioners-chat-at-the-shrm-legislative-conference

 

 
 
 
 

What's Behind The Surge in Disability Claims?


I am pleased to post my most recent article for Fortune/CNN on the surge in ADA claims:  http://management.fortune.cnn.com/2013/03/06/disability-workers-united-states/

Thank you.

Jonathan

 

 
 
 
 

Boys Just Want To Have Fun


It is with gratitute to SHRM's HRMagazine for publishing my most recent article on Boys Clubs: 

 

 Boys Just Want to Have Fun 

Vol. 58 No. 3 
Shut down boys’ clubs.  

3/1/2013  By Jonathan Segal 
 
 

The term “boys’ club” refers to the unofficial and often impenetrable group of men—usually white men—in an organization or department who have effective control and power. Being part of or having access to the club often is critical to making the right connections to advance within the organization.

Because these groups often form covertly, and sometimes as a result of unconscious rather than conscious bias, the membership does not always correspond to the organizational chart. Moreover, top executives often deny the existence of an exclusionary club. I have never seen a “formal” boys’ club, yet I would be foolish to deny that it exists at some organizations.

When it comes to determining the scope of a boys’ club, official positions may be relevant but not determinative. I have seen organizations with gender equity at the top, but the real power is held by men. Conversely, I have also seen organizational charts where most power positions are held by those with Y chromosomes, but I didn’t think there was any gender bias in general or a boys’ club in particular.

Why are these clubs present in some companies? And how do we eradicate them?

I do not pretend to have all the answers, but I do have some thoughts to help HR professionals move toward equal employment opportunity (EEO).

Bias in Your Backyard

Sex discrimination, including gender stereotyping, is illegal. More than that, it is bad business.

Ensuring gender equality is a business imperative in terms of attracting, retaining and advancing talent that goes beyond the legal imperative. We exclude women or any other group at our peril.

You may be thinking, “Of course. This is hardly news.”

Most executives outside of HR would agree. They understand the business drivers mandating diversity and inclusion.

Still, most do not see the bias in their backyards. Don’t assume that everyone understands the business costs of bias.

Why Boys’ Clubs Exist

There are many reasons an organization or a silo within may have a boys’ club.

The first is what the U.S. Equal Employment Opportunity Commission calls “like-me” bias: the human tendency to be more comfortable with those who are like you.

“I don’t discriminate,” says the executive. But he socializes with, plays golf with and feels more comfortable among those who look like him.

Does this risk exist in an organization where women are in control? You bet. Executives in these organizations face the same risk of like-me bias to the detriment of those with Y chromosomes.

Boys’ clubs do not justify girls’ clubs, legally or morally. Power clubs that exclude men are also bad business.

Like-me bias is usually the product of unconscious affinity toward similarity. Sometimes, however, conscious considerations contribute to a boys’ club.

These considerations may be well-intentioned. We live in a painfully litigious world. One misstatement may later be used as evidence of bias, even if the statement was made out of awkwardness as opposed to malice.

In the “gotcha” world of employment litigation, leaders appropriately want to avoid saying the wrong thing. They sometimes inappropriately avoid people they fear may perceive their words in a negative light. But you can’t avoid bias claims by avoiding those who are different from you. That’s called bias.

There is more room for human error in a diverse group. While that may explain, in part, why some clubs exist, it does not justify their existence.

In addition, members of boys’ clubs often justify their activities as being primarily social. Work is hard and seems to be getting harder. In the 1970s, Spiral Starecase sang, “I love you more today than yesterday but not as much as tomorrow.” The theme song for today’s business world could be “I expect more from you today than yesterday but not as much as tomorrow.” So, when people work hard, they may want to play hard, too.

In mixed-gender groups, the sexist “joke” is more likely to be costly, and the appropriateness of going to strip clubs is more likely to be challenged.

So we move from the ’70s to the ’80s, when Cyndi Lauper sang “Girls Just Want to Have Fun.” Today, the boys who just want to have fun fear that the price tag may be too high if women are included in certain activities, so some don’t include them.

Dismantle Boys’ Clubs

Just so there is no confusion: Even in male groups, the sexist jokes are not funny and the strip clubs are offensive. There are many men—I am one of them—who say so, but fewer men than women will bring claims based on them.

There is no magic bullet to dismantling these clubs, but here are 10 recommendations for your consideration:

  • Educate executives about the potential for the existence of a boys’ club and the business costs of such a group. You cannot stress enough the costs of excluding women from the inner circle. It is not only about the talent women bring but about the fact that men who operate in diverse groups tend to be better employees.
  • Make sure your job descriptions for leadership positions do not inadvertently exclude women. Don’t include a minimum number of years of experience that is not necessary for the position and that women historically have been denied the opportunity to achieve. For example, for an operations position, if the number of years of experience required is unnecessarily high, it may perpetuate bias engaged in by prior employers. Do you really need someone with 15 years of experience? Is 10 enough? At least ask the question.
  • Open the promotion process so that when senior positions become available, credentials, not connections, matter. Leadership roles too often are willed to the next in line, and that person often looks like his predecessor in terms of demographics. So, as a general rule, post the opening.
  • Give a “plus” to differences in experiences, perspectives and leadership styles as part of decision-making. When we focus on these aspects of diversity, we increase EEO diversity. However, do not give gender a plus. Under Title VII of the Civil Rights Act of 1964, employers probably cannot consider gender a plus unless there is a remedial purpose. For private-sector employers, that means either an admission of prior discrimination or proof of a “manifest imbalance” in traditionally segregated positions. For public-sector employers, only an admission of previous discrimination will do.
  • Consider affinity groups that focus on gender issues so that women can learn from one another and develop career strategies. But be careful: As a practical matter, an affinity group should be a launching pad, not a landing pad. As a legal matter, if you support an affinity group for women, do you have to do the same for men? Here comes the annoying lawyerism: “It depends.” If the affinity group is supported by the employer so that it would be considered a term or condition of employment, employers cannot discriminate based on gender. The same would be true of race. Develop EEO-neutral criteria for affinity groups, and allow any groups to argue that they meet them. For example, any group that wants employer support should have to present the business case for the need and a plan for how the group will expand the business. In female-dominated professions, a male affinity group may meet the criteria.
  • Develop a formal mentoring program. In the absence of a formal program, like-me mentoring often benefits people who are like those at the top. Be careful that any formal mentoring program does not do the same. Many formal programs gender-match. If people at the top are predominantly male, doesn’t that mean that men will benefit more? Moreover, isn’t it misguided to suggest that men cannot mentor women or vice versa? And doesn’t gender-matching, when it comes to mentoring, deprive men of power the opportunity to learn of barriers that they did not know existed? When there is cross-gender mentoring, mentors often learn as much as they impart.
  • Pay attention to micro-inequities that collectively may result in macro-exclusions. Leaders need to think about with whom they have lunch, go for drinks, attend sporting events and connect through social networking. We all know it is in the context of these informal interactions that relationships are strengthened and information is shared. These informal interactions may be the visible and discoverable manifestations of a boys’ club.
  • Diversify organizational social events so that many interests are covered. Mix things up. Of course, not all women like to shop for shoes, and some men do. But I suspect more women do than men. (I once was on a panel on gender bias in the legal profession, and the only issue on which there was a good-natured gender divide was shoes. I still think two pairs is enough: one formal and one informal.) In any event, can you imagine if your only company-sponsored social events involved shoe shopping? Are male-dominated sporting events different? By offering diverse activities, you will maximize inclusion and have some fun, too. How do you know what might be of interest? Ask.
  • Focus on alcohol. Why? Many boys’ clubs have as charter members Jack Daniels, Jim Beam and Old Grand-Dad. Drinking buddies and membership in boys’ clubs often overlap. That does not mean women don’t drink socially or even excessively. But often the boys’ clubhouse is a neighborhood bar.
  • Don’t deceive yourself into believing that only cave dwellers engage in sexual harassment. While we have made progress as a society, sexual harassment is alive and well. Sexist jokes, verbal innuendo, visits to strip clubs—sometimes these missteps result in a claim. Just as bad, they effectively push women away.

Some women will stay with your organization but opt out of the social events where inappropriate behaviors occur. Marginalized, these employees don’t realize their full potential. Worse, they may take their talent and outside relationships to a more inclusive employer. Inappropriate conduct may not be severe or pervasive enough to create a hostile work environment, but it may create a boys’ club when women choose not to go along to get along, a choice no one should ever have to make.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

 
 
 
 

Criminal Background Checks in 2013: FCRA, Meet Title VII


As we all know, if an employer uses a third party to conduct criminal background checks for it, the Fair Credit Reporting Act (FCRA) applies. Generally speaking, there are three (3) steps mandated by the FCRA in terms of the communications between the employer and the applicant or employee:  (a) prior written authorization; (b) pre-adverse action notice; and (c) adverse action notice. Effective January 1, 2013, there are new  forms that must be used as part of the process.  In particular, an updated “A Summary of Your Rights Under the Fair Credit Reporting Act,” must be given to applicants and employees as part of pre-adverse action notice (with regard to criminal or other records). 

In the case of investigative consumer reports, which include personal interviews as opposed to relying solely on documents of record, the revised notice must be given as part of the first step, too.

For a copy of the new form, paste and see Appendix K: http://bit.ly/Rv6XqS

In this regard, it is important to note that the FCRA no longer is enforced by the Federal Trade Commission (FTC).  Rather, it is enforced by the Consumer Financial Protection Bureau (CFPB).  The CFPB assumed enforcement and rule making authority from the FTC under the Dodd-Frank Wall Street Reform and Consumer Protection Act. As employers update their forms to comply with the FCRA, now is also a good time to update their forms to take into account the EEOC's guidance on criminal records.  See http://www.eeoc.gov/laws/guidance/arrest_conviction

Generally, the EEOC requires that employers make individualized assessments, using the Green factors:  (a) nature of job; (b) nature of conviction(s); and (c) time frame since conviction. Green refers to the seminal appellate court decision in this area. As part of recommended individualized assessment, the EEOC encourages employers to do more than consider the Green factors.

The EEOC has stated that the  individualized assessment also requires "that an employer informs the individual that he [or she] may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him [or her]; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity." The FCRA requires only that employers notify applicants and employees of the conviction record which would be disqualifying and provide them with an opportunity to correct any mistakes.

The individualized assessment inquiry is a due process right that gives the applicant or employee an opportunity to provide potentially "mitigating" factors for the employer to consider, even assuming the conviction record is correct. This very small change can make employer decision-making more defensible before the EEOC. It also is consistent with general notions of fundamental fairness.

It should be noted that the EEOC recognizes that there can be "targeted exclusions" such that an individualized assessment is not necessary.  That is where there is tight nexus between the 3 Green factors.  More detail on targeted exclusions can be found in guidance referenced above.

Don't forget state and local laws, too.  For example, Newark has become the most recent jurisdiction to “ban the box.”

For now, however, let's keep it easy.  Update your forms to comply with the FCRA and consider including an inquiry as part of your pre-adverse action notice consistent with the EEOC's preference for individualized assessments.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATION OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

Holiday Tale From A Jewish Guy Who Wears A Chai


Well, it's that time of year.  Rather than listing do's and don'ts, I wrote a tale.  I hope it provides you with some tips and perhaps a smile, too.   As published by SHRM's We Know Next:   http://www.weknownext.com/blog/a-holiday-tale-by-a-jewish-guy-who-wears-a-chai

 

 
 
 
 

Harassment Quiz Webinar


Be sure to make your December CLE and Harassment Training deadline.

 
 
 
 

How to Break Through the Glass Ceiling Without Getting Cut


I am pleased to share with you my latest post on SHRM's "We Know Next" blog.

How to Break Through the Glass Ceiling Without Getting Cut can be found here.

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

Search Jonathan Segal's blog

« April 2014
SunMonTueWedThuFriSat
  
1
3
4
5
6
7
8
9
10
11
12
13
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
   
       
Today
 
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.