Florida State Senator Seeks Prohibition on Checking Job Applicants’ Criminal Records

           If it is approved in the next Florida legislative session, a proposed new state law would prohibit private employers from inquiring into, or considering, a job applicant’s criminal history on an initial employment application.

 

            Such screenings would only be allowed after the employer has determined that a job applicant meets the minimum requirements to qualify for a job offer.

 

            Bill SB-214, introduced in Tallahassee on December 23, 2014, by State Senator Jeff Clemens (D-Lake Worth), is entitled “An act relating to discrimination in employment screening.” It seeks to address what Clemens describes as a statewide need to reduce barriers to employment for people who have a criminal history, with the goal of lowering unemployment rates in communities that have concentrated numbers of people who have a criminal history.

 

            According to the preface to the proposed new law, “Restricting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application increases employment opportunities for those who have a criminal history, thereby reducing the rate of recidivism and improving economic stability.”

 

            The new statute, to become effective on July 1, 2015, provides as follows:

 

   Unlawful employment screening.—Unless otherwise

   required by law, an employer may not inquire into or consider an

   applicant’s criminal history on an initial employment

   application. An employer may inquire into or consider an

   applicant’s criminal history only after the applicant’s

   qualifications have been screened and the employer has

   determined that the applicant meets the minimum employment

   requirements specified for a given position.

 

Clemens’ proposal tracks the position on job applicants’ criminal histories adopted by the United States Equal Employment Opportunity Commission (EEOC), the Washington-based agency that enforces federal laws against employment discrimination.

 

The EEOC believes that an employer's use of an individual's criminal history – especially if focusing on arrests rather than convictions -- in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.

 

A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin, so that disparate treatment results. According to the federal agency, national data supports a finding that criminal record exclusions have a disparate impact on job seekers based on race and national origin.

 

 

Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.

 

Furthermore, African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) was expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites.

 

Thus, according to the EEOC, an employer's neutral policy (e.g., excluding job applicants right away 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.

 

Therefore, the EEOC recommends that employers develop a targeted initial criminal history screen for job applicants that considers the nature of the crime(s), the time elapsed since the offense(s), and the nature of the job.  The employer's policy should then provide 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. Applicants with a criminal history should be provided an opportunity to explain their circumstances and personal history before a final employment decision is made.

FLORIDA MINIMUM WAGE GOES UP IN 2015

          Florida's state minimum wage is going up to $8.05 an hour -- a 12 cent increase --‎ on January 1, 2015. Employers need to pay their employees at least the state minimum, while the federal minimum wage remains at $7.25 for the new year. 

SUPREME COURT DECIDES THAT END-OF-SHIFT ANTI-THEFT EMPLOYEE SCREENINGS ARE NOT COMPENSATABLE WORK TIME UNDER THE FLSA

            The U.S. Supreme Court has held unanimously that hourly-paid employees don't have to be paid for the time that they spend passing through after-work security screenings, reversing a Ninth Circuit ruling in favor of former employees of an Amazon.com warehouse against a staffing agency.

 

            The Court handed a victory to employers over employee pay, ruling that companies do not have to pay employees for the time they spend undergoing security checks at the end of their shifts.

 

            On a 9-0 vote, the Court decided on December 9 that employees of Integrity Staffing Solutions, Inc. facilities in Nevada, where merchandise is processed and shipped for Amazon.com, the internet retail giant, cannot claim compensation for the approximately 25 minutes that they spend each day waiting for and undergoing security screening at the end of their shift, aimed at protecting against employee theft. Integrity Staffing Solutions provides warehouse staffing to Amazon.com throughout the United States. During the screenings, employees have to remove items such as wallets, keys, and belts from their persons and pass through metal detectors.

 

            Justice Clarence Thomas wrote on behalf of the Court that the screening process is not a "principal activity" of the employees' jobs, or an “intrinsic element” of retrieving products from warehouse shelves or packaging them for shipment under the Fair Labor Standards Act of 1938 (FLSA) and therefore is not subject to compensation.

 

 

            For employees to be paid, the activity in question must be “an intrinsic element” of the job and “one with which the employee cannot dispense if he is to perform his principal activities,” Justice Thomas wrote.

 

            Justice Thomas noted that prior Supreme Court decisions had identified several activities that satisfy this test. For example, the time that battery-plant employees spend showering and changing clothes because the chemicals in the plant are “toxic to human beings” and the employer conceded that “the clothes-changing and showering activities of the employees [were] indispensable to the performance of their productive work and integrally related thereto,” was found to be compensable. Similarly, the time that meatpacker employees spend sharpening their knives because dull knives would “slow down production” on the assembly line, “affect the appearance of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents,” also was held to be compensable. In contrast, the Court has found to be non-compensable the time that poultry-plant employees spend waiting to don protective gear because such waiting is “two steps removed from the productive activity on the assembly line.”

 

            “We hold,” wrote Justice Thomas, “that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

 

            Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a brief concurring opinion to stress that the Court's opinion was consistent with U.S. Labor Department regulations, stating that “undergoing security screenings [is] not itself work of consequence that the employees performed for their employer.”

 

            The Supreme Court reversed an April 2013 ruling by the 9th U.S. Circuit Court of Appeals, based in San Francisco, which had found that the screenings were an integral part of the warehousing job done for the benefit of the employer and should be compensated. Former employees had sued Integrity Staffing Solutions for back wages and overtime pay, arguing that they should have been paid for the time spent going through the security screenings at the end of their shifts.

 

            Amazon, the world's largest online retailer, is not directly involved in the case. But a business group called the Retail Litigation Center, in a brief supporting the warehousing company, said the industry in general loses $16 billion annually in thefts.

 

            The decision is likely to benefit other companies facing similar lawsuits, including Amazon, CVS Health Corp., and Apple, Inc., according to Integrity's lawyers.

 

            President Barack Obama's administration had backed the warehousing company's position. Both the company and the government said the security checks are not central to warehouse work and instead are more like waiting in line to punch a time clock, an activity some courts have found does not require compensation. The FLSA itself does not define what “work” consists of.

 

            In its legal brief asking the Supreme Court to overturn the Ninth Circuit’s decision, Integrity’s lawyers had argued that the security screenings “are indistinguishable from many other tasks that have been found non-compensable under the FLSA, such as waiting to punch in and out on the time clock, walking from the parking lot to the workplace, waiting to pick up a paycheck, or waiting to pick up protective gear before donning it for a work shift."

 

            However, in its Integrity decision the Supreme Court did not directly address the issue of employees’ wait time for punching in and out, and that issue, and whether employees must be paid for such wait time remains somewhat unclear.

 

            In 1947 Congress passed the Portal-to-Portal Act to limit the FLSA liability of employers to pay for certain employee activities, such as (1) walking, riding and traveling to and from the actual place of work; (2) clothes changing in certain circumstances; and (3) other activities that are “preliminary to or postliminary” to principal work activities.

 

            In a 2005 decision, IBP, Inc. v. Alvarez, cited by Justice Thomas in the Integrity decision, the Supreme Court recognized in passing that the time that employees must spend waiting to check in or out is generally a "preliminary" or “postliminary” activity that occurs outside of the continuous workday and therefore does not count as compensable work time under the Court’s “de minimis” (too little to matter) doctrine. However, that decision dealt with the time that employees had to spend “donning and doffing” (putting on and taking off) protective clothing and equipment at a poultry processing plant in Portland, Maine, and it did not directly address the legal issue of whether merely waiting to punch in or out is compensable work time.



            For purposes of computing employee work time recorded by a time clock or similar device, the U.S. Department of Labor has adopted a regulation that generally allows time rounding practices. 29 CFR § 785.48(b) provides:

It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.

 

The text of the Court’s Integrity opinion is available online here:

http://www.supremecourt.gov/opinions/14pdf/13-433_5h26.pdf

OBAMA ADMINISTRATION ADDS TRANSGENDER PROTECTIONS NOT ENACTED BY CONGRESS

           Acting unilaterally to expand federal civil rights laws to protect transgenders in the workplace – although Congress has failed to do so – the Obama Administration has announced that it will push forward with its own interpretation of Title VII of the 1964 Civil Rights Act.

 

            Reversing the prior position of the U.S. Justice Department, outgoing Attorney General Eric Holder has announced that his new interpretation of Title VII has led him to believe that the federal statute prohibiting employment discrimination on the basis of sex also applies to transgender people. Going forward, Holder announced, the Civil Rights Division of the Justice Department will be able to file Title VII claims against state and local public employers on behalf of transgender individuals claiming discrimination. The Justice Department does not have authority to sue private employers, and the new interpretation does not affect that.

 

            Title VII provides that it is unlawful for an for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII applies to private employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

 

            “This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status,” Holder said in a statement on December 18. “This will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

 

            “The most straightforward reading of Title VII,” according to Holder, is that discrimination "because of . . . sex" includes discrimination “because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.” He acknowledged that “Congress may not have had such claims in mind when it enacted Title VII.”

 

            On July 21 President Obama had issued an executive order providing that discrimination based on gender identity was prohibited for purposes of federal employment and government contracting.

 

            The federal government’s Office of Personnel Management defines transgender individuals as “people with a gender identity that is different from the sex assigned to them at birth," and defines "gender identity" as an individual's "internal sense of being male or female." Among other things, its policies state that once a transgender employee has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.  

 

            Congress has considered this issue in the past but has never amended Title VII to include coverage for transgenders.  In contrast, Congress amended Title VII in 1978 to make it clear that sex discrimination covers discrimination on the basis of pregnancy, childbirth, or related medical conditions.

 

            The U.S. Equal Employment Opportunity Commission and a number of courts have concluded that protection for transgenders is included in the Title VII prohibition of discrimination on the basis of sex, but the issue has not yet reached the U.S. Supreme Court. Many courts have recognized that gender identity discrimination claims may be established under a "sex-stereotyping" theory. In 1989, in the case of Price Waterhouse v. Hopkins, the Supreme Court interpreted Title VII's prohibition of discrimination because of "sex" as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females. But it did not rule that transgenders were covered by Title VII.

 

            Eighteen states (not including Florida) and the District of Columbia have state employment non-discrimination laws that cover transgenders with protections based on sexual orientation and gender identity. Many municipalities across the nation also protect transgenders against discrimination, including Miami-Dade County.

 

            "The decision by Attorney General Holder will go a long way toward advancing equality for the transgender community," said Sarah Warbelow, legal director for the Human Rights Campaign of Washington, D.C., which promotes civil rights for lesbian, gay, bisexual, and transgender Americans. "Transgender people continue to face some of the highest levels of discrimination in the workplace. We are thrilled to see the Department of Justice take this important step."

 

            In contrast, Peter Sprigg, senior director for policy studies of the conservative Family Research Council in Washington, D.C., criticized Holder, saying that the original intent of the 1964 Civil Rights Act most certainly did not cover transgendered people. “Probably not one person thought they were passing a bill to protect men who wanted to become women or women who wanted to become men,” Sprigg said. “This is another example of the Obama administration circumventing the role of Congress in imposing its own radical re-interpretation of the law.”

 

            In a two-page internal Justice Department memorandum outlining his new interpretation of Title VII, dated December 15, Holder acknowledged that a number of courts have reached varying conclusions about whether discrimination based on gender identity in and of itself—including transgender status—constitutes discrimination based on sex. The memorandum is available online at:

http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/12/18/title_vii_memo.pdf

FAVORING UNIONS, NLRB GRANTS EMPLOYEES THE RIGHT TO ORGANIZE USING THEIR EMPLOYERS’ EMAIL SYSTEMS DURING NONWORKING TIME

           The National Labor Relations Board has decided, 3-2, that employees have a right to use their employers' e-mail systems for communicating about union organizing during breaks and other nonworking time.

 

            The 76-page decision, which favors labor unions, overruled a seven-year-old board ruling which had found the opposite. In doing so, the Board gave preference to employees’ communication rights over employer property rights. It invalidated a company policy prohibiting employee use of employer-provided email system for non-work-related messages.

 

            It applies only to employees who have already been granted access to their employer's email system in the course of their work, and does not require employers who have not done so to now provide such access.

 

            The ruling could be appealed in the federal courts.

 

            The three Democrats on the five-member board voted in favor of the decision, while the two Republicans voted against it. All five were appointed by President Obama.

 

            The Board, based in Washington, D.C., is an independent federal government agency that enforces the National Labor Relations Act (NLRA), a 1935 federal statute that seeks to protect employee rights to act together in “protected group activity” to try to improve their pay and working conditions. One of the principal activities protected by Section 7 of the federal law is employees’ efforts to organize a union in their workplace.

 

            The NLRB’s email rights ruling, issued on December 11, stemmed from a case that the Communications Workers of America, AFL-CIO (CWA) union filed two years ago after it failed in its attempt to organize employees of Purple Communications, Inc., in Rocklin, Calif., a company that provides interpreting services for the deaf and hard of hearing.

 

            The union argued that prohibiting Purple Communications’ employees from using the company’s email system for non-business purposes, and on behalf of organizations not associated with the company, interfered with the CWA’s organizing efforts and the employees’ protected speech under the federal law.

 

            The company maintained that its email restrictions were aimed at cutting down on workplace distractions. Businesses argued that reversing the 2007 ruling known as Register Guard could violate employers’ property rights, congest email servers, diminish employee productivity, and infringe on companies’ First Amendment rights not to communicate the unwanted messages of others. They also said that employees have personal email accounts that they could use on their own devices for non-job related purposes.

 

            Register Guard was also decided by a 3-2 vote during the Bush II administration, on December 16, 2007, with the three Republican board members voting in favor and the two Democrats voting against the decision. In that case the NLRB had ruled that employers could prohibit employees from using company email for union purposes even if they allowed employees to use the email for other personal, non-commercial purposes. 

 

            The CWA argued to the NLRB that if an employer grants its employees access to the company’s email system, employees should be able to use it to discuss workplace issues, including those related to unionization.

 

            “Employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” the majority opinion said. “Employees' exercise of their Section 7 rights necessarily encom­passes the right effectively to communicate with one another regarding self-organization at the jobsite."

 

            The NLRB set two limitations to this new employee email right under Section 7 of the NLRA:

 

(1)        Companies are not required to provide email access to employees at all. Rather, the right attaches once the employer has granted that access; and

 

(2)       An employer may justify a comprehensive prohibition of non-work-related emails by demonstrating that special circumstances make the ban necessary to maintain production or discipline.

 

            One of the Republican dissenters, Board Member Philip A. Miscimarra, wrote a separate opinion stating: “Even if one could identify a colorable need for employees to use an employer's business email system to engage in union organizing and other concerted activi­ties, I believe the majority's creation of such an employ­ee right impermissibly fails to accommodate the substantial employer property rights associated with its computer resources, which typically involve substantial acquisition and maintenance costs.”

 

            The other Republican dissenter, Board Member Harry I. Johnson, III, wrote in his own opinion, that “in light of the vast growth of personal devices and social media accounts, not to mention face-to-face and other traditional methods of communications, em­ployees have numerous options available to them in or­der to communicate with one another about their wages, hours, and working conditions. Given the availability of all of these fora, employees do not need to use their em­ployer's email system to communicate with one another on these issues.

 

            “It is easy for an employee during his or her nonwork time to send a text message, or make a phone call, or access the internet via smartphone in order to send a message through a social media site and communicate with colleagues, or even to send an email on a personal email service,” Johnson added.

 

            Unless reversed on appeal, the Purple Communications ruling by the NLRB will require employers to review their personnel policies and modify any email-use policies that universally prohibit non-work-related messaging through employer-provided email systems.

 

The NLRB’s Purple Communications decision, Case No. 21-CA-095151, can be accessed online at: http://www.nlrb.gov/cases-decisions/board-decisions

Miami-Dade County Enacts Ordinance Prohibiting Discrimination Against Transgender People

           Invoking its power to legislate for the public safety, health, and general welfare of the county’s residents, the Miami-Dade County Commission has approved, by an 8-3 vote, an ordinance that bans discrimination against transgender and gender non-conforming people.

 

            The commission voted on December 2, 2014, for the measure, which expands the county's law that prohibits discrimination in housing, employment, and public accommodations to also include transgendered people and discrimination based on gender identity or gender expression. The law already bans discrimination based on other categories, such as gender, religion, race, ethnicity, and sexual orientation.

 

            "Transgender people need that protection because there is such gross misinformation out there," said Commissioner Sally Heyman, who supported the ordinance.

 

            “Gender identity” is defined in the new law as “a person's innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth (e.g., the sex listed on their birth certificate).” 

            “Gender expression” is defined as “all of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, mannerisms, speech patterns and social interactions. Social or cultural norms can vary widely and some characteristics that may be accepted as masculine, feminine or neutral in one culture may not be assessed similarly in another.”

 

            The new ordinance provides limited exemptions from the reach of some of its prohibition against unlawful housing practices in sales or rentals to religious organizations, housing for older persons, and lodgings operated by private clubs not in fact open to the public.

 

            A 2011 study by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that the combination of anti-transgender bias and persistent structural racism throughout the United States was especially devastating for transgender people of color

 

            Miami-Dade is one of more than 20 Florida municipalities – including the cities of Gainesville, Tampa, Miami Beach, and Key West -- to enact such a measure. The Miami-Dade HIV/AIDS Partnership estimates that there are between 5,020 and 20,080 transgender people living in Miami-Dade County.

 

            The new ordinance will be enforced by the Miami-Dade Commission on Human Rights (“Human Rights Commission”), which already has jurisdiction to hear complaints of discrimination in employment, family leave, public accommodations, credit and financing practices, and housing accommodations because of race, color, religion, ancestry, national origin, sex, pregnancy, age, disability, marital status, familial status, sexual orientation, and source of income.

 

            Neither the federal nor the State of Florida’s civil rights laws extend similar protections based on gender identity or gender expression in the areas of employment, housing, or public accommodations.

 

            Opponents of the new law argued that the expanded law would erase the privacy barriers between men and women in bathrooms, dressing rooms, and locker rooms.

 

            The newly enacted ordinance does not contain any specific language regarding which bathroom – men’s or women’s – transgender people should be allowed to use.

 

            After the vote, Tony Lima, executive director of the LGBT (lesbian, gay, bisexual, and transgender) rights group SAVE, said he thinks there’s a “good chance” that opponents will try to challenge the ordinance with a ballot measure at a future county-wide election.

 

The text of the ordinance is available online here:

http://www.miamidade.gov/govaction/matter.asp?matter=141932&file=true&yearFolder=Y2014

EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination

          The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance, and a Fact Sheet for Small Businesses.  

 

          They are all available free online at eeoc.gov. (See URLs below).

 

          This is the first comprehensive update of the Commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject.  This guidance supersedes that document and incorporates significant developments in the law during the past 30 years. Private sector employers should be well informed about these issues in order to avoid unnecessary claims and litigation.

 

          Pregnancy discrimination in employment is a kind of sex based workplace discrimination prohibited by the 1978 amendments to the 1964 Civil Rights Act. In the state of Florida, the 1992 Civil Rights Act prohibits sex discrimination but does not specifically mention pregnancy.  Nonetheless, the Florida Supreme Court, in Delva v. The Continental Group, Inc., interpreted the Florida statutes in April to cover discrimination on the basis of pregnancy as a kind of sex-based discrimination.

 

          In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance also discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

 

          "Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work," said EEOC Chair Jacqueline A. Berrien. 

 

          The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work.  The guidance also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.

 

          Among other issues, the guidance discusses:

 

• The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
• Lactation as a covered pregnancy-related medical condition;
• The circumstances under which employers may have to provide light duty for pregnant workers;
• Issues related to leave for pregnancy and for medical conditions related to pregnancy;
• The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
• The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
• When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
• Best practices for employers to avoid unlawful discrimination against pregnant workers.

 

          Besides the PDA, pregnant employees also have rights under another federal law, The Family and Medical Leave Act (FMLA), which allows eligible employees of employers with 50 or more employees to take up to 12 workweeks of unpaid leave for, among other things, the birth and care of the employee's newborn child and for the employee's own serious health condition. The Department of Labor enforces the FMLA.

 

          Also, Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide "reasonable break time" for hourly employees to express breast milk until the child's first birthday. Employers are required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." Employers with fewer than 50 employees are not subject to this requirement if it "would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer's business."

 

The new EEOC Enforcement Guidance is available free online at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

 

A Q&A on the Guidance may be viewed at:

http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm

 

A Fact Sheet for Small Businesses Regarding Pregnancy Discrimination is available at:

http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm

HOW TO CONDUCT BACKGROUND CHECKS FOR EMPLOYEES AND JOB APPLICANTS AND COMPLY WITH FEDERAL LAWS

          In a joint publication with the Federal Trade Commission (FTC), the Equal Employment Opportunity Commission (EEOC) has published a booklet regarding the use by private sector employers of background checks on existing employees and job applicants.

          Any time an employer uses a job applicant’s or employee’s background information – including criminal histories -- to make an employment decision, regardless of how the information was obtained, the employer must comply with federal laws that protect applicants and employees from discrimination.

          That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the EEOC.

          In addition, when an employer runs a background check through a company in the business of compiling background  information, it must comply with the Fair Credit Reporting Act (FCRA). The FTC enforces the FCRA.

 

The 10-page booklet may be obtained online free of charge at:

 

http://www.eeoc.gov/eeoc/publications/upload/eeoc_ftc_background_checks_employers.pdf

Half a Million U.S. Employers Now Using E-Verify to Check Job Applicants’ Status

            More than 500,000 employers now use E-Verify in about 1.5-million workplaces, the federal government’s free online service that allows United States employers to confirm their new employees’ eligibility to work in this country.

            U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens or foreign citizens who have the necessary authorization.

            Operating since1996, E-Verify is a free Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Employers who use E-Verify receive a response on an employee’s work authorization status within seconds -- 98.8 percent of work-authorized employees are automatically confirmed instantly or within 24 hours, requiring no further employee or employer action.

            "Participation in E-Verify is largely voluntary, so the fact that half a million companies have signed up demonstrates significant confidence in the program,” said Lori Scialabba, Acting Director of U.S. Citizenship and Immigration Services (USCIS). “Employers using E-Verify find it helps them maintain a legal workforce in a quick, secure and accurate way."

            During the program’s first 16 years annual enrollments have increased tenfold, from 11,474 in 1996 to 111,671 in 2012. Last year employers used E-Verify more than 25 million times, according to USCIS.

Recent system enhancements include:

• The introduction of “Self Check”, which allows individuals to look up their employment eligibility status and correct their records before they seek work;
• The capability to combat identity fraud by locking Social Security numbers suspected of being misused for employment eligibility verification; and
• A redesigned website to include “more plain-language content and easy-to-follow graphics.”

            The U.S. Senate and the House both have pending immigration reform proposals mandating the use of E-Verify by private employers nationwide. Both bills would phase in employers’ obligation to use an E-Verify program over a period of years, depending on an organization’s size.

            The Society for Human Resource Management (SHRM) and the Council for Global Immigration are advocating for a single “reliable and secure” verification system that pre-empts state laws and uses identity-authentication tools, such as knowledge-based authentication, to protect against identity theft so that businesses can confidently hire work-authorized employees.

            “The current E-Verify program can be defeated by identity theft,” said Mike Aitken, SHRM vice president for government affairs. “While E-Verify can confirm that the documents presented by a job applicant are real, it cannot confirm that the prospective employee is the person who owns that identity. This leaves the door open for unauthorized individuals to use impostor identities to gain verification of work authorization.”

            Employers and other interested persons may visit www.uscis.gov/E-Verify online for more information about the program, both in English and Spanish. USCIS has recently released “E-Verify for Business Leaders,” a new four-minute video that introduces the program’s benefits to prospective users. It is accessible online at: http://www.uscis.gov/videos/video-e-verify-business-leaders.

Miami Chiropractic Office Pays $170,000 To Settle Religious Discrimination Lawsuit

 

            Dynamic Medical Services, Inc. (DMS), a Miami company owned by Dr.  Dennis Nobbe which provides medical and chiropractic services, has agreed to settle a religious discrimin­ation lawsuit filed against it in the federal district court in Miami by the U.S. Equal Employment Opportunity Commission (EEOC).

            According to the EEOC, DMS had required its employees to participate in Scientology religious training and practices, and fired two of them for refusing to do so.

            Dynamic has two clinical locations, one at 8303 S.W. 40th Street (Bird Road) in Miami, and the other at 1685 West 49th Street, Suite #1104, in Hialeah, at the Westland Mall.

            The EEOC’s investigation disclosed that DMS required its employees to spend at least half their work days in courses that involved  Scientology religious practices, such as screaming at ashtrays or staring at  someone for eight hours without moving.  The company also instructed employees to attend courses at a Church of Scientology.  Additionally, the company required one employee to undergo an "audit" by connect­ing herself to an Electropsychometer or "E-meter," which Scientologists believe is a religious artifact, and required her to undergo "purification" treatment at the Church of Scientology. 

            According to the EEOC's suit, employees repeatedly asked not to attend the religious courses, but were told that it was a requirement of their jobs.  When two of them – one a Jehovah’s Witness -- refused to participate in Scientology religious practices and objected to conforming to Scientology religious beliefs, they were terminated from their jobs by Nobbe as retaliation.

            In its court complaint, the EEOC alleged that Nobbe’s employees “were subjected to a hostile work environment based on religion by Dynamic’s unwelcome imposition upon them of Scientology religious views and practices”.

            Such practices violate Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination on the basis of religion, including forcing employees to conform to a particular  religion. 

            According to the terms of the settlement agreement, which was approved on December 18, 2013, by U.S. District Judge Kathleen M. Williams through an order called a Consent Decree, DMS agreed to pay $170,000.00 to settle the lawsuit.  Payments were to be made to eight affected employees and former employees in amounts ranging from $500.00 to $54,400.00. DMS did not admit to any wrongdoing in the settlement.

            The settlement agreement also requires DMS to accommodate  employees who complain about attending and/or participating in religious  courses or other religious work-related activities for religious reasons; to  notify the EEOC if any employees request a religious accommodation; to adopt an  anti-discrimination policy that explains to employees their rights under Title  VII with respect to religious discrimination; and to conduct training for DMS  employees covering Title VII, and specifically focusing on religious  discrimination.   

            "The law is clear: An  employer cannot force his or her religion on staff by mandating that employees  practice or espouse a certain religion, and cannot refuse to accommodate employees  after they object to such discriminatory employment practices,” said Robert Weisberg, regional attorney for the EEOC's  Miami District.

            When the lawsuit was filed last year, DMS denied the EEOC’s allegations, stating that “Dynamic Medical Services prides itself on the diversity of its staff and denies that it engaged in any improper or unlawful actions with regards to its employees.”

            In the settlement agreement DMS asserted that “it neither terminated nor caused the termination of any employee for religious or any other prohibited reasons”; denied that any religious practice, procedure, or requirement was present in its workplaces; and also denied that it engaged in any other wrong-doing asserted in the EEOC’s complaint.

             Scientology is a religion developed by the late L. Ron Hubbard, its founder, who died in 1986. His religious writings include “The Way To Happiness,” “Dianetics,” and “Original Thesis.”

UNION MEMBERSHIP HELD STEADY IN U.S. IN 2013

 

            Union membership held steady in the United States in 2013, but is down by 3.2-million since such membership began to be counted by the federal government 30 years ago.

            According to the U.S. Bureau of Labor Statistics, in 2013 the union membership rate -- the percent of wage and salary workers who were members of unions -- was 11.3 percent, the same as in 2012. The number of wage and salary workers belonging to unions last year, 14.5 million, was little different from 2012.

            In 1983, the first year for which comparable union membership data are available, the union membership rate was 20.1 percent, and there were 17.7 million union workers.

            Public-sector workers had a union membership rate (35.3 percent) more than five times higher than that of private-sector workers (6.7 percent). In 2013, 7.2 million employees in the public sector belonged to a union, compared with 7.3 million workers in the private sector

            Among major race and ethnicity groups, African-American workers had a higher union membership rate in 2013 (13.6 percent) than workers who were white (11.0 percent), Asian

(9.4 percent), or Hispanic (9.4 percent).

            Among the states, New York continued to have the highest union membership rate

(24.4 percent), followed by Alaska (23.1 percent) and Hawaii (22.1 percent). North Carolina had the lowest rate (3.0 percent), while the union membership rate in Florida was 5.4%. With a total of 7,655,000 persons employed in Florida, 414,000 were union members in 2013. The U.S. average by state was 11.3 percent.