The talk of the employer community lately has been the National Labor Relations Board’s highly controversial final rule that severely and substantially modifies certain procedures in representation cases. The Board claimed that the final rule, approved December 22, 2011, was designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.
On April 25, 2012, the EEOC issued its first update in 20 years of its position on employers’ use of arrest and convictions records in making employment decisions.
The EEOC’s Guidance discusses employers’ use of arrest and conviction records in the context of Title VII of the Civil Rights Act’s prohibition on race and national origin discrimination. It first makes clear what most employers already know – employers cannot require or apply criminal background checks differently for one group of employees than another protected class of employees. The focusof the EEOC’s new Guidance, however, is that reliance on criminal records can have a disparate impact on certain protected groups and, therefore, violate Title VII.
A federal district court in Massachusetts effectively gutted a prominent plaintiff’s class action firm’s attempt to avoid arbitration agreements and litigate on a class-wide basis in federal court in Boston. This ruling comes on the heels of a series of class and collective actions filed in federal courts against major U.S.-based and international employers by the Sanford Wittels & Heisler law firm.
In Karp v. CIGNA Healthcare, Inc., the plaintiff-employee was a senior contract manager at CIGNA who asserted discrimination claims in a proposed $100 million putative class action alleging systemic gender discrimination in violation of Title VII of the Civil Rights Act of 1964. Karp’s efforts to represent a class of potentially thousands of current and former female employees were halted when, the district court effectively foreclosed her from proceeding on a class-wide basis either in federal court or in arbitration.
Ever since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) in October 2008, California employers have anxiously awaited the California Supreme Court’s standards for meal and rest breaks provided to non-exempt employees. To read our full alert authored by Pascal Benyamini and Fey Epling click here.
In Samper v. Providence St Vincent Medical Ctr 2012 DJDAR 4559 (9th Cir. 04/11/2012), the plaintiff, a part-time neonatal intensive care unit (“NICU”) nurse sought an accommodation from her employer, Providence St. Vincent Medical Center, that would allow her to opt out of its attendance policy which permitted five unplanned absences in a rolling twelve month period, in addition to other scheduled absences. When Providence refused the request, Samper sued for failure to accommodate her disability (fibromyalgia) in the federal district court for the District of Oregon, which granted summary judgment for the employer. The 9th Circuit affirmed, citing to its many sister courts, finding that “[t]he commonsense notion that onsite regular attendance is an essential job function could hardly be more illustrative than in the context of a neonatal nurse.” The 9th Circuit provided some guidance and reassurance to employers in distinguishing as “an unusual case” Humphrey v. Memorial Hosps. Ass’n., in which the court stated, “regular and predictable attendance is not per se an essential function of all jobs.”
The Samper court does not, however, grant employers carte blanche to refuse similar accommodations in all situations, making clear that the inquiry remains highly fact-specific. Employers should note the court’s favorable discussion of Providence’s long history of accommodations and interactive processes with the plaintiff prior to her termination.
ICE, the U.S. Immigration and Customs Enforcement, was formed in 2003 “as part of the federal government’s response to the 9/11 attacks and its mission is to protect the security of the American people and homeland by vigilantly enforcing the nation’s immigration and customs laws.” With an annual budget of more than $5 billion and more than 19,000 employees in over 400 offices in the U.S. and around the world, ICE is the largest investigative agency in the United States Department of Homeland Security. ICE may conduct raids or sweeps at a particular place of business. ICE can also send Notices of Inspections to employers to alert them that it will be inspecting their I-9s and hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. ICE’s increased focus is on holding employers accountable for their hiring practices and their efforts to ensure a legal workforce. ICE also seeks to ensure that employers are compliant with I-9 forms and hiring records.
In the event of audits or raids, employers’ non-compliance may result in civil penalties and lay the groundwork for criminal prosecution of employers who have knowingly violated the law. According to ICE’s Assistant Secretary John Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.” He added that ICE is “increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”
While the presence of illegal aliens at a business does not necessarily mean the employer is responsible, consulting with legal counsel is paramount to limiting your potential exposure in your hiring practices.