Wednesday, December 31, 2014

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.

Tuesday, December 30, 2014


          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. 

Monday, December 22, 2014


            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:

Friday, December 19, 2014


           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:

Friday, December 12, 2014


           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

Monday, December 8, 2014

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: