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For Labor Day: A Trio of Recent Employment Law Changes

Labor Day became a national holiday in 1894. In the 120 years since then, the landscape of American labor has changed dramatically. The types of jobs performed to the manner in which they are performed would leave a worker from the turn of the century before last speechless with astonishment.  And the pace of change continues unabated.  As we head into the long Labor Day holiday weekend, it seems fitting to highlight three recent trends that are shaping labor relations today.

Ban the Box Continues to Gain Traction

Private employers may find themselves on the wrong side of the law if they inquire about a job applicant’s criminal record on the job application form or early in the hiring process. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island, and Washington, DC, have adopted “ban-the-box” legislation that applies to private sector employers. The “ban the box” moniker refers to the extremely common practice of including yes/no questions regarding an applicant’s criminal record on the job application form.

Even if your state is not one that has banned the box, you must not be off the hook because more than 50 cities across America have similar prohibitions. Cities with that forbid asking “Have you ever been convicted of a crime?” include Atlanta, Austin, Baltimore, Detroit, New York City, Philadelphia, San Francisco, and Seattle.  More jurisdictions are being added to the list every month.

Does this mean an employer is barred from uncovering a potential employee’s criminal past? No, it simply prohibits this question at the initial stage of the application process.  And, as is usual when state law is involved, when the inquiry can be made varies from jurisdiction to jurisdiction. At one end of the spectrum, Hawaii, Newark and Baltimore don’t allow asking about the jobseeker’s criminal record until there is a conditional offer of employment. Illinois and San Francisco require that the employer hold their questions until after the first live interview or following a conditional offer of employment if there is not interview. Other jurisdictions, such as Minnesota and Rhode Island, allow the question after the first interview and some, such as Massachusetts, permit questioning after the initial application has been completed. 

While most employers will need to comply with the ban the box rules, there are some exceptions. Employers who must exclude applicants with certain criminal convictions from employment because of a specific federal or state law and employers whose employees must have fidelity bonds and the offense would disqualify the applicant are frequently excluded from the rules.  However, it is important to know the laws in each hiring jurisdiction and to review your application process accordingly.

NLRB Takes Position that Franchisors May Be “Joint Employers” with Franchisees

In an abrupt and disconcerting change of long-standing policy the National Labor Relations Board’s (NLRB) General Counsel announced that it intended to treat McDonald’s USA, LLC as a joint employer of its franchisees’ employees in numerous administrative complaints that allege labor violations in individual restaurants.  Traditionally, separate companies are only considered joint employers when they each actually have control over the employees’ wages, the hours worked and working conditions.

The NLRB appears to be moving from an “actual control over working conditions” test to one that looks at the totality of the interconnections between two companies, regardless of whether actual control over the employees is exerted.  In addition to stepping away from an actual control standard, the NLRB expands its analysis to include monitoring inventory costs, tracking data on sales, measuring the length of time employees take to fill customer orders, and using a central employment application system.

It must be remembered that the ruling is not legally binding—it merely states the litigation stance of the NLRB. However, this development is not only important in its own right but because it confirms the NLRB’s interest in redefining and expanding the reach of the “joint employer” doctrine.

EEOC Issues First New Pregnancy Discrimination Guidance in 30 Years

Ronald Reagan was President and the Indianapolis Colts were still in Baltimore the last time the Equal Employment Opportunity Commission (EEOC) addressed the issue of pregnancy discrimination. Now, after 30 years, the EEOC has broken the silence and released new guidance to clarify the types of protection provided to women in the workplace.  Most of the new guidance, which applies to employers with 15 or more employees, is unlikely to create much of a stir.  However, there are a few new wrinkles that may trigger a need to change existing policies.

The essential concept that underpins the new guidance is “parity.” For example, if an employer provides “light duty” assignments to workers any reason, the employer must do so for a pregnant woman who cannot perform her full duties.  Similarly, a pregnant woman cannot be required to use sick leave before taking another form of leave, unless all employers are required to first use sick leave.  The new rules require employers to provide reasonable accommodations if the pregnancy prevents the woman from performing her normal duties. For example, the employer might have the duty to provide stool to a woman working a cash register. The guidance also addresses the needs of nursing mothers, parental leave for fathers and working conditions for females who are in child-bearing years.

Although this guidance is not equivalent to a law or a regulation, the EEOC will use these standards when it investigates complaints and decides whether charges against an employer are justified. Moreover, courts often grant government rules considerable weight when interpreting laws.  The amount of creditability these particular rules will have will depend upon the U.S. Supreme Court’s decision in Young v. United Parcel Service, which is slated for decision in the 2014 fall term.  However, a prudent employer will review existing pregnancy-related policies and, to the extent that it is reasonable, move toward conforming to the new standards.

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