On July 14, 2016, the Equal Employment Opportunity Commission (EEOC) published a revised proposal to collect data on employees’ compensation and hours worked through the EEO-1 reports that larger employers are required to submit annually. Notwithstanding numerous public comments stressing the burdens that this reporting requirement would impose on employers and the limited statistical utility that the information may offer, the EEOC is pressing forward with only modest revisions to its original proposal.

The revised rule will apply to employers subject to Title VII of the Civil Rights Act with 100 or more employees.  The EEOC rejected comments urging a higher workforce threshold, stating, “exempting employers with fewer than 500 employees, or even fewer than 250…would result in losing data for a large number of employers who employ millions of workers, and thus would significantly reduce the utility of the pay data collection.”

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In an important “win” for employers that has potentially widespread implications, the Sixth Circuit Court of Appeals, sitting en banc, reinstated summary judgment dismissing claims asserted by the Equal Employment Opportunity Commission (EEOC) that Ford Motor Company failed to accommodate a former employee’s request under the Americans with Disabilities Act (ADA) to telecommute up to four days per week. The Court reaffirmed the “general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” Notably, the Court observed: “The [ADA] requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job – or job schedule – of their choosing.”

The plaintiff in EEOC v. Ford Motor Company, Jane Harris, worked as a resale steel buyer, a position which “required teamwork, meetings with suppliers and stampers, and on site ‘availability to participate in face-to-face interactions,’ [which] necessitate[d]… regular and predictable attendance.” The Court stressed the position was “highly interactive” and required “good, old-fashioned interpersonal skills.”

Continue Reading Sixth Circuit Rejects Telecommuting Demand from Employee

Written by Dorothé Smits and Johan Nijmeijer.

According to Eurostat, during the last decade, the population that is overweight in the European Union (EU) Member States has increased significantly, which has resulted in more than half of the EU population being overweight or obese. Last year the European Court of Justice (ECJ) was asked in a preliminary ruling in a Danish case – for the first time – which provisions of EU law, if any, apply to discrimination based on obesity. The Advocate General has recently delivered his opinion and the ECJ is now expected to render a ruling any time soon. In this Alert, the authors highlight the most relevant aspects of the Danish case and related EU case-law as it currently stands. It is likely that some of the issues will seem surprising to readers in the United States, inasmuch as, since the 2008 amendments to the Americans with Disabilities Act, the Equal Employment Opportunity Commission and the courts have already begun to rule that severe or morbid obesity is a disability regardless of the cause.

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On May 15, 2013, the Equal Employment Opportunity Commission (“EEOC”) issued revised guidance for employers with respect to employees with epilepsy, cancer, diabetes, and intellectual disabilities. The guidance is contained in the EEOC publication “Disability Discrimination: The Questions and Answers Series,” and is posted on the EEOC’s website,  http://www.eeoc.gov/laws/types/disability.cfm. The recommendations address the expanded definitions of disability under the ADA Amendments Act, that “make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA.”

Among other things, the Q&A document offers examples of accommodations that may be appropriate for these conditions. For example:

  • An employee with cancer may need to leave work for doctors’ appointments or treatment and recovery; to take periodic breaks or a private area to rest or take medication; to modify office temperature; or to use their work telephone to call medical professionals.
  • An employee with diabetes may need a private area to test blood sugar or administer insulin injections; a place to rest to normalize blood sugar; breaks to eat, drink, take medication or test blood sugar; and to take leave for treatment, recuperation, or training on managing diabetes.
  • An employee with epilepsy may include breaks to take medication; a private area to rest after a seizure; a rubber mat or carpet to cushion a fall; and/or to rely on other workers for rides to meetings and other work related events.
  • An employee with an intellectual disability may need assistance during the application process, such as having someone read or interpret application materials; training or detailed instructions to do the job; the ability to listen to tape recorded instructions or use detailed schedules for competing tasks; and use of a job coach.

As with other disabilities, all the above disabilities also may require accommodations such as permission to work from home; modified work schedules; reallocation of marginal tasks to another employee; or possible reassignment to a vacant position if the employee is no longer able to perform her current job due to the disability.

Chair of the EEOC, Jacqueline A. Barren, explained that the new guidelines are meant to assist employers in understanding the ADA’s application to cancer, diabetes, epilepsy, and intellectual disabilities, because “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability,” and many of those individuals are seeking employment or are already in the workplace. Employers should be aware of this guidance, and prepared to treat employees with these conditions as they treat other individuals protected by the ADA.

 

Most companies require background checks of their applicants and employees.  These background checks are designed to ensure the accuracy of the information that the applicant or employee supplies the employer.  As part of their background checks, employers often conduct credit checks by obtaining consumer reports from outside credit reporting agencies.  Employers legitimately obtain and utilize such information to reduce or prevent theft or liability for negligent hiring.  Employers conducting such background checks should be mindful that federal agencies, including the Equal Employment Opportunity Commission and the Federal Trade Commission (“FTC”) are taking a heightened approach to screening employers’ screening processes.  See EEOC’s E-Race Initiative, http://www.eeoc.gov/eeoc/initiatives/e-race/goals.cfm; see also Employment Background Screening Company to Pay $2.6 Million Penalty for Multiple Violations of the Fair Credit Reporting Act, http://www.ftc.gov/opa/2012/08/hireright.shtm.

 

 Employers obtaining and utilizing such information must be alert to the requirements of the Fair Credit Reporting Act (“FCRA”).  Section 604(b) of the FCRA requires an employer who intends to obtain a consumer report for employment purposes to disclose this to the applicant or employee and to obtain the applicant’s or employee’s written permission.  The FTC, charged with enforcing the FCRA, allows employers to combine a disclosure and authorization.  In its authorization for a credit check, an employer may include language that the applicant or employee gives the company the right to conduct a background investigation and that such individual releases from “all liability all persons, companies, schools and corporations supplying such information.”

 

 An employer may not, however, ask the applicant or employee to waive his or her FCRA rights.  Inclusion of such a waiver is in and of itself a violation of the FCRA.  So, if an employer uses an application with an authorization and also includes a waiver of any rights or claims the applicant may have for releasing background information, the entire authorization is invalid under the FCRA.

 

 If you have any concerns as to whether your background check authorization complies with the FCRA, please contact one of our Greenberg Traurig Labor & Employment attorneys.  We will continue to monitor and report any developments.

Yesterday, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued ”Updated Enforcement Guidance,” reminding employers that screen applicants’ criminal backgrounds that they must prove that any use of information acquired through such screens is job-related to avoid potential discrimination suits.  

The Enforcement Guidance states that an employer accused of violating Title VII will have to carry the burden of proving it followed the standards and did not discriminate against minorities or employees with criminal records who could adequately perform the necessary job tasks. 

The EEOC maintains that the updated guidelines do not reflect a change in the Commission’s policies, but rather that additional legal analysis and factual background was needed to support the Commission’s stance, particularly after the Third Circuit Court of Appeal’s ruling in 2007 in El v. Southeastern Pennsylvania Transportation Authority, which called for the Commission to provide more legal analysis and updated research on the issue.

Commenting on the new Guidance, EEOC Chairwoman Jacqueline A. Berrien stated that it “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

Commissioner Constance S. Barker, however, who cast the lone dissenting vote against issuing the Guidance, voiced concern that the Guidance goes beyond the jurisdiction of the EEOC, will negatively affect business owners, and did not receive sufficient public comment.

Notably, Section VIII of the Guidance offers examples of best practices for employers considering criminal record information when making employment decisions.  Employers who screen applicants’ criminal backgrounds should take note of the new Guidance and consider some of the best practices suggested therein.

Employee handbooks can be a great resource for both employees and employers. A handbook is essentially a compilation of workplace rules and is an excellent way to communicate work polices to employees. Handbooks come in all shapes and sizes, but on the whole contain certain common elements such as information about the company, general workplace polices, and certain policies prohibiting unlawful discrimination in the workplace. Other common components are sections prohibiting disclosure of confidential information and how and when an employee can take a leave of absence. There really is no limit to the number of policies in a handbook and larger employers often have handbooks that are extremely comprehensive.

Employees benefit from handbooks because they learn company policies, what is expected of them and what they can expect from their employer, unique aspects of the employer that separate it from others in the industry, and depending on the company, its history.

Employers are also well-served by handbooks. Employers are able to communicate information directly to employees and announce and communicate workplace policies. Employers are also able to set forth equal opportunity employment and anti-discrimination policies, and aside from conveying this information, if an employee files a complaint with an agency such as the EEOC, the first question the agency will ask is whether the company has the appropriate policies.

Should all employers have a handbook? For a new or small business that is carefully managing its resources, it can sometimes feel like an added cost, but if the business is growing quickly or the number of employees is above ten, then it is likely that the benefits of even a simple handbook will outweigh the costs.

In recent months, the NLRB has been addressing employment policies such as social media polices, and many employers have been frustrated by these often critical rulings. Despite these pronouncements, employers should not become frustrated. Handbooks are an opportunity for employers to pass on valuable information to employees and can help shield a business from charges of discrimination or unfair treatment. Even if workplace policies are coming under greater scrutiny in certain quarters, the benefits of a handbook still overcome any hesitancy.