Ban the Box Gaining Momentum

shutterstock_163754744Last week, President Obama announced yet another executive order, this one removing questions about an applicant’s criminal history from applications for federal jobs. Similar laws have been passed in cities and states across the country, including New Jersey, where the President visited a federal detention center to announce the new order. Details on the announcement can be found here.

This move is the latest in a legislative effort that is clearly making some gains across the country. Nineteen states have passed ban the box legislation, and over 100 cities or counties have passed similar laws. This hodgepodge of laws is a nightmare for large employers who seek to have one uniform employment application across the country. Many have thrown in the towel and removed the question altogether to avoid the inadvertent use of an unlawful application in a jurisdiction where the question is disallowed.

One important reminder about this discussion is that these ban the box laws do not restrict an employer’s right to conduct background checks and deny employment to convicted felons. The stated purpose is to simply remove the question from the applica
tion as a screening tool, and delay the point at which the employer learns of the criminal offense (hopefully after meeting the applicant and forming a favorable impression). In my experience, however, removing the question on the application eliminates the opportunity for an applicant to “get ahead” of a background check by honestly disclosing a conviction and addressing it “head on.” Likewise, it takes away an opportunity for employers to test the honesty of an applicant to see if they will voluntarily disclose a conviction. Many employers are more apt to hire applicants with convictions if they are honest about their history, and this law will take away that opportunity.

Lastly, these laws take away a not so insignificant tool for the defense of employment litigation. Employers have long been able to raise after acquired discovery of dishonesty on the application as a defense to a wrongful termination case. In other words, if an employer discovers in litigation that an employee lied about his or her criminal history, and the history would have disqualified the employee from being hired, the damages available in the case can be reduced or cut off substantially. If the question is removed from applications, employers now have the entire burden for checking criminal background and the employee can simply remain silent without consequence (and hope the employer misses something).

Posted in Uncategorized

NLRB’s Position on Social Media Finally Hitting the Courts

nlrbIt is common knowledge that the National Labor Relations Board (NLRB) has taken an aggressive position on employee use of social media constituting protected concerted activity.   In the last few years, the NLRB has repeatedly found that employee speech on social media critical of the employer was protected from disciplinary action.   It can take several years for cases to make their way through an evidentiary hearing before an administrative law judge and an appeal to the NLRB in Washington D.C.   After that process has concluded, the NLRB’s decision can be appealed to the United States Court of Appeals. 

The first such case to make its way to the federal courts is now pending at the Second Circuit and oral argument was held this week.   The case is Three D, LLC v. National Labor Relations Board, Case No. 14-3284, and involves “Triple Play Sports Bar and Grille.”  The restaurant fired a bartender over a Facebook post calling her employer an “asshole.”   The posting was “Liked” by another worker which made the comment “concerted” according to the NLRB.   The employer argued that the posting was capable of being viewed by customers and constituted “disloyal” or “defamatory” speech outside the law’s protections.   The NLRB argued that the comment was not sufficiently inflammatory and that employees have the right to heated and even profane expressions of discontent about their working conditions.

This case is an important one to watch because it is a test case for the NLRB’s aggressive litigation stance on protection for employee social media posts.   It will also be one of the first appeals court rulings on the question of whether a “like” on Facebook equates to a concerted action by multiple employees.   A decision is expected late 2015 or early 2016.

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Conscientious Objectors in the Workplace

Recently, the news has been filled with employees who refuse to perform their duties based on political, moral, or religious beliefs. Kentucky clerk Kim Davis was jailed for refusing to issue marriage licenses to same sex couples following the ruling by the Supreme Court. Here in Texas, a Whataburger employee refused to serve police officers after publicized reports of a shooting. A similar incident was reported at an Arby’s restaurant in Florida. These cases raise the question – what should an employer do when an employee refuses to perform their job? Can the employee sue for wrongful termination if he or she is discharged?

First, it is worth noting that Kim Davis, the Kentucky clerk, is not an employee, she is an elected official. Elected officials generally cannot be terminated and serve at the will of the electorate. The focus of this blog posting is on employees. For example, what if your business employs a “Black Lives Matter” activist who refuses to serve a customer? What if a Christian employee refuses to serve a same sex couple visiting your business?

In both the Whataburger and Arby’s cases, the employees were terminated for refusing to serve police officers. Political expression is not protected in the private sector and employees do not have a right to engage in either free speech or activism in their jobs. Generally, employees who use their positions to make political statements with which the business disagrees can be discharged. Similarly, an employee who violates a company policy or local, state or federal law requiring service of all customers without regard to race, religion, or other classification, can be lawfully discharged.

There are two important potential exceptions. First, employees have a right to request a reasonable accommodation for religious beliefs. The employer has a duty to make a reasonable accommodation for religious objections to performing duties. What is “reasonable” depends on the circumstances, and the law does not require an employer to fundamentally transform a job or relieve an employee of performing essential duties. This issue is being litigated across the country as several non-elected officials (unlike Kim Davis who is elected) have been terminated for refusing to issue marriage licenses to same sex couples. There has also been much litigation over pharmacists refusing to issue birth control pills because of religious beliefs, and most states protect such refusals as long as another pharmacist is present and can administer the medication.

In Texas, employees are also protected from termination for refusing to perform an illegal act. For example, an employee who refuses to dump hazardous chemicals into a river, or engage in questionable accounting practices, is protected from adverse action. Given the over-legalization of society in general, and the workplace specifically, it is not hard for a creative lawyer to cast an objecting employee as refusing to engage in illegality.

The takeaway from these recent news stories is that employees making political statements generally act at their own peril and can be lawfully terminated. That said, employers should be careful and make sure that the conscientious objector is not protected , for example if the objection is based on a religious belief or a refusal to break the law. In such cases, employers should seek out legal advice.

Posted in Uncategorized

Virginia Shooting Raises Questions About Background Checks

site-header-logo-pngFirst, let me say that most shootings (including the recent incident in Virginia) are random acts of violence by crazy people.  It is difficult, if not impossible, to predict when an employee will snap, or whether an ex-employee is likely to return to the workplace with a vengeance.  That said, the recent Virginia case has prompted a number of questions about what steps, if any, prudent employers can take to weed out applicants with clear histories of violent or confrontational episodes in the workplace.   Here, the shooter had been discharged from WDBJ, and escorted from the building by police two years earlier, after confrontations with coworkers.  It appears as if one of the victims had, in fact, complained to Human Resources about the shooter, which had prompted him becoming a target.

Through the news coverage, we now know the shooter had been previously terminated from a Florida television station after threatening fellow employees, and had similarly blamed his problems at that location on unfounded allegations of racism.  None of this, of course, was known by WDBJ when the shooter was hired and raises the question  – what could have been done to lawfully obtain such information and could it have even been used to deny employment?  The simple answer is that federal law (and most states) prohibit an employer from relying upon past complaints or lawsuits about discrimination as an employment criteria.  EEOC charges of discrimination do not appear on background checks, and most checks do not include civil discrimination suits.   In most cases like this one, the only way to get a hint of the employee’s prior behavior is either directly from the employee in an interview or from the prior employer through a reference check.

The sad reality is that reference checks have largely become a waste of time.  Concerns over defamation lawsuits have led most companies to say nothing or, at most, they just reveal “name rank and serial number” in the form of dates of employment and positions held.  Some employers are so concerned about loose-lipped employees that they have delegated this function entirely to third party vendors.  The takeaway from this incident is that the interview process is not just about identifying qualified employees anymore.  Interviewers need to be trained to measure, on a basic level, the emotional and psychological condition of the applicant.  Lots of areas are legally off limits (like past racial complaints) but problems getting along with coworkers are fair game.  Sometimes, more can be discovered by HOW an applicant answers a question (or avoids a question) as opposed to what is actually said.   No employer is perfect and bad apples will slip through the cracks, but prudent employers will take the interview process seriously as perhaps the best and only opportunity to avoid a future incident of workplace violence.  Some practical tips in this area include:

  1. Be thorough in checking references – you never know if you will get lucky and someone will talk.  Sometimes you can pick up cues in the tone or demeanor of the past employer’s refusals to answer your questions.
  2. Hire a good background check vendor.  For example, do you know which states are being checked for criminal histories?  Are you doing a national search or just your home state?  If you are only checking states where the applicant lived, what if they lie?
  3. Train, train, train your interviewers.   Security personnel at airports are trained to spot terrorists boarding planes by just asking questions.  No one expects your hiring team to be this proficient, but throwing an untrained manager into an interview with a list of questions on a napkin is not a recipe for success.
  4. Don’t be afraid to ask tough personal questions. Know the legal boundaries but understand that the damage done by a poor hire almost always outweighs the risk of a lawsuit arising out of a misconstrued question.
  5. Consider using standardized personality assessments as part of the hiring process.   Yes, these tests must be validated as job related and can raise legal considerations.  That said, they are valuable tools and can be used lawfully with quality legal guidance.
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Posted in Discrimination, Labor & Employment

Yelp Reviewers Are Not “Employees”


In a world where the lines between employees and volunteers/interns are becoming increasingly blurred, it is nice to see at least one court easily dispense with a wage and hour lawsuit.   On August 13, 2015, a federal judge in San Francisco dismissed a complaint seeking to establish a collective action under the Fair Labor Standards Act (“FLSA”) for Yelp users who wrote online business reviews.  The suit claimed that such users are “employees” and that reviews appearing on the website constituted “work” for which they were unpaid.

The money quote from the decision is “[w]hile the statutory definition of employee is exceedingly broad … it does have its limits.  An individual who without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit, is outside the sweep of the Act.”  The full decision can be found here.

The takeaway from this case is that there are (thankfully) some obvious limits to the definition of employee, even in the emerging arena of internet commerce.  With the high profile disputes over the employment status of Uber drivers and unpaid interns in the entertainment industry, the question of employment status is an important one which will not go away anytime soon.  Employers who use volunteers or contributors for online content (like Yelp) should make sure that the terms of use clearly specify that contributors are not employees, and that any contribution to the website is voluntary and solely for the contributor’s own purposes.

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Posted in Labor & Employment, Wage and Hour

Unions Want Exemption from $15 Minimum Wage

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Apparently, Unions in Los Angeles are big believers in “Do What I say, Not What I Do.” Los Angeles recently joined a number of liberal cities in passing a bill that would raise minimum wage to $15 by 2020. Now, Unions are clamoring for an exemption from the legislation for employers who are unionized. An article on the subject can be found here.

The takeaway from this article is that everyone knows an artificially high minimum wage is bad for the economy, including the unions and other groups who are pushing for the legislation. Organized labor want to make sure that the employees they represent don’t lose their jobs when employers look to move operations, automate, and reduce headcount when the increased minimum wage takes effect. More importantly, this exception, if passed, would penalize non-union employers through a higher mandatory wage scale and discourage employers from fighting against unionization.

Photo by a katz/shutterstock

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Posted in Labor & Employment, Wage and Hour

Department of Labor Issues Proposed Rule on Overtime


As we have noted for months on this blog, the Department of Labor (DOL) has been hard at work on proposed changes to the overtime regulations. Everyone knew the minimum salary threshold for exempt status was going to be raised, but no one knew by how much. Well, the DOL apparently believes in the “go big or go home” method of rule-making and has proposed that the threshold be increased from $23,000 to approximately $50,000 next year. The measure will also be indexed to the Bureau of Labor Statistics (BLS)’s 40th percentile of full-time salaried workers, and be increased annually.

The proposed rule also plans to increase the highly compensated employee exemption from $100,000 to $122,000 and index this threshold to the 90th BLS percentile of full-time salaried workers. The hidden gem in the proposed rule is the request for comment on changes to the duties tests for the white collar exemptions. Among other things, the DOL is looking at putting limits on the percent of time that an exempt worker can perform non-exempt work. This is already the case under California state law, and the DOL specifically invites comments on whether the California standard should be adopted nationwide. Suffice it to say, adopting a California rule is almost never going to make it simpler for employers, or reduce the risk of litigation.

Our firm’s client alert on the development can be found here.

Posted in Uncategorized

Colorado Allows Firing of Employee Who Used Medical Marijuana

As more states jump on the medical marijuana bandwagon, employers are faced with increasing questions about how these changes in the law affect drug testing policies. The conventional wisdom has been that medical marijuana use, like alcohol, may be lawful for personal use, but employers can still terminate employees who show up for work under the influence.

WUIOn June 15, employers received some guidance from Colorado, one of the early adopters of legal marijuana use. The Colorado Supreme Court affirmed the dismissal of a wrongful termination case filed by a quadriplegic who worked for Dish Network. The employee was paralyzed in a car crash and used medical marijuana as a pain medicine. He tested positive in a random drug test in 2010 and was terminated. He filed suit claiming that the discharge violated Colorado state law, which makes it illegal to terminate an employee for engaging in a “lawful activity” outside of work.

The Colorado Supreme court noted that marijuana is still a controlled substance under federal law, therefore marijuana use is not a “lawful” action in an unrestricted sense. This rationale is troubling since there is a move afoot to change federal law to conform with the growing state court trend to allow marijuana. This holding suggests that if federal law was changed, the result would have been different, and the employee would have been protected from termination.

Our firm’s alert on the case can be found here, and this is an important read for all HR professionals in states where medical marijuana has been legalized.

Posted in Uncategorized

Weather Events Create Difficult HR Issues

In the last month, Houston employers have faced catastrophic rains, flooding, and now a tropical storm. We thought it would be a good time to dust off the Firm’s HR Guide for hurricaneHurricane and Disaster Preparation, which can be found here

The highlights of this guide include the following important legal points:

  1. Chapter 22 of the Texas Labor Code broadly prohibits discrimination against employees who miss work to participate in a public evacuation order. There are exceptions, which are described in the Guide.
  2. If an hourly non-exempt employee misses work because of weather, the employer has no obligation to pay the employee. The employer can allow (or even require) the use of vacation or PTO time to cover the absence.
  3. Exempt salaried employees must generally be paid their full salary for the week if they are absent on a day the office or site of employment is closed because of weather. If the office is open, and the employee cannot make it to work because of weather, the employee may be docked only in full day increments – not a partial day. As a practical matter, this means that the employee must be paid if the exempt employee performs any work from home, including responding to emails or returning phone calls. For that reason, we don’t recommend docking exempt employees for weather related absences but instead requiring the employee to make up the time elsewhere (which is always allowed).
  4. Employees who must stay home to care for a sick or disabled family member during a weather emergency may be protected under the Family and Medical Leave Act. We recommend extreme caution in disciplining employees in these circumstances without first obtaining relevant documentation to determine whether FMLA is applicable. 

Weather events in Houston can be stressful times for the workplace, and HR professionals are often caught in the middle between operational needs and employees seeking to stay safe and protect their families.  It is critical that companies understand the boundaries that cannot be crossed and the applicable laws in this area.

Posted in Uncategorized

Uber and Other Startups Facing Independent Contractor Disputes

taxisPerhaps the blurriest line in employment law is the difference between an independent contractor and employee. Companies prefer contractor status because it is cheaper and offers more flexibility. Contractors don’t receive benefits, can be relieved at any time with little to no liability, and the employer pays far less in employment taxes. In recent years, however, companies who use this model have faced increased litigation from workers looking for overtime and governments looking for unpaid taxes. 

The front line of these battles has historically been in the construction and delivery industries, but now that battlefront is shifting. Uber and similar technology start-ups are increasingly relying on a business model of “matching” workers with customers looking for a service. In Uber’s case, an “App” matches a driver with a customer needing a ride. Uber has enjoyed great success, and is now facing increasing litigation over whether its army of contractors who accept driving assignments using their personal vehicles are really employees. A Reuter’s story on the lawsuits can be found here.

This is a good example of how legal issues never really go away, they just morph and adapt to changes in the workplace. As a takeaway, every employer who uses contractors should remember that it is important that such relationships meet the legal test for contractor status, and that all contractors (preferably) sign a comprehensive agreement. Simply calling a worker an independent contractor is inadequate. Generally, the worker must retain control over the details of the work, be free to work for other parties, and not be engaged in the same type of work performed by employees.

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Posted in Labor & Employment, Wage and Hour
About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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The Editor

David L. Barron is a Board Certified labor and employment attorney from the law firm of Cozen O’Connor and part of the firm’s national labor and employment practice group. David brings a practical approach to solving workplace problems and is a sought after speaker by business and industry associations, media outlets and companies looking to provide training for its managers and supervisors.