Trivia Game Winner

Readers: 1912 was a pretty good year. A number of iconic American corporations were founded that year, including Lockheed Corporation, L.L. Bean, and Paramount Pictures Corporation, among others. For the sports fans among you, 1912 also saw the opening of one of America’s classic baseball venues, Fenway Park, with a game between the Red Sox and Harvard. (And, for the Red Sox fans among you, in 1912, the New York Yankees finished the season with a record of 50-102.)

1912 saw some other landmarks. The Republic of China was formed. The first NHL game was played (a key development for those of us here in Minnesota). Robert Scott arrived at the South Pole, only to discover that Roald Amundsen had gotten there one month before. Arizona was admitted to the Union as the 48th state. The Titanic had its first (and last) voyage. The first Japanese cherry blossom trees were planted in Washington, D.C.

And, not to be overlooked, early in 1912, Hennepin County District Court Judge William Lancaster and Minnesota Supreme Court Justice David Simpson started a law firm at the request of First National Bank of Minneapolis (now known as US Bank). James E. Dorsey, fresh out of Harvard Law School, became the firm’s first associate in 1913. By 1919, “Dorsey” was part of the law firm’s name. When both Lancaster and Simpson died prematurely in 1924 and 1925, one from illness and one in a car accident, the law firm’s name was changed to “Junell, Dorsey, Oakley and Driscoll.” The firm has had 14 name changes since that time, becoming “Dorsey & Whitney” in 1982.

Thus, as Asmaa Butt, a researcher with Lexology in the United Kingdom, correctly noted in response to the last Trivia Game question, like Fenway, Paramount, LL Bean, and other companies, Dorsey & Whitney celebrated its 100th anniversary this year. Congratulations to Asmaa, our third international Trivia Game Winner. She wins one of our fabulous prizes.

The next Trivia Game question will go up later this afternoon. Good luck.  Regards, Roy

Announcement: Employment Law Institute Next Week, and Seminar Opportunities

Readers: Next Monday and Tuesday, May 21 and 22, Minnesota CLE will be conducting its annual Upper Midwest Employment Law Institute in St. Paul, MN. Over the last 20 years-plus, the Institute has grown into the largest employment law CLE in the country.

Many of my colleagues and I will be presenting at the Institute next week. For those who might be interested in attending our sessions, they are listed below:

May 21

Salespeople – Can’t Live With Them, Can’t Live Without Them: Managing, Disciplining and Firing the Salesperson (Melissa Raphan) (10:20 a.m. – 11:15 a.m.)

The Contingent Workforce and Alternate Staffing Models – In-House Counsel Perspectives (panel discussion, moderated by Ryan Mick) (1:30 p.m. – 2:30 p.m.)

FLSA “Off the Clock” Litigation – The Hottest Issues in the Hottest Cases (panel discussion, moderated by our now-retired partner, Robert Reinhart, Jr.) (1:30 p.m. – 2:30 p.m.)

How to Discipline and Discharge (Melissa Raphan, and others) (2:45 p.m. – 3:45 p.m.)

Are They Really Independent Contractors? Enforcement Trends and Best Practices to Avoid Misclassification (Courtney DaCosta and Ryan Mick) (4:00 p.m. – 5:00 p.m.)

May 22

Out of the Frying Pan and Into the Fire: Managing the Leave Process After FMLA Leave is Granted (Marilyn Clark) (10:20 a.m. – 11:15 a.m.)

Employees Gone Wild! Managing the Crises They Create (panel discussion, moderated by me) (11:25 a.m. – 12:20 p.m.)

The 15 Most Important Non-Compete Cases—What Every Employment Lawyer Should Know (Joe Hammell) (11:25 a.m. – 12:20 p.m.)

Improving Your Mediation Advocacy Skills in Employment Law Cases (panel discussion, moderated by our now-retired partner, Robert Reinhart, Jr.) (1:30 p.m. – 2:30 p.m.)

Employees Gone Wild! (repeat session) (2:45 p.m. – 3:45 p.m.)

As this conference illustrates, my colleagues and I will be speaking on a wide variety of employment topics next week. If you plan to attend the conference, please be sure to track us down and say hello.

More generally, I want to remind you that our Labor & Employment Group offers a number of training opportunities, which we tailor to our clients’ (or non-clients’) needs and desires. This includes basic training on fundamental topics such as discrimination law, sexual harassment, post-employment restrictive covenants, discipline and discharge, etc. The programs also include my “HR and Management Mistakes” seminar and the crisis management seminar “Employees Gone Wild!”, which I will be presenting next week.  With all of our seminars, we strive to make them interactive (using quizzes, discussion groups, etc.), and entertaining (using television and movie clips, “Jeopardy” games, etc.), as well as informative.

If you would be interested in a single seminar or a series of training seminars at your company, please do not hesitate to contact me. Best regards, Roy

Matt’s Analysis of Quirky Question # 193: Pregnancy Complications and the FMLA, PDA and ADA

[Readers:  Quirky Question # 193 was posed to my colleague, Matthew Kipp.  His analysis is set forth below.

By way of background, Matt spent many years working in our Fargo office.  He recently made the move to Minneapolis and we are very pleased he did.  If you have any questions about the analysis below, don't hesitate to contact Matt directly.  His email is:  kipp.matthew@dorsey.com; his phone number is: 612.492.6162.  Additional information about Matt is available at: http://www.dorsey.com/kipp_matthew/.

I hope you find Matt's analysis helpful.  Regards, Roy]  

Quirky Question # 193: 

An employee experienced complications with her pregnancy toward the end of her second trimester.  As a result of these complications, her physician placed her on bed rest for the remainder of the pregnancy.  If she carries the baby to term, this employee will exhaust her Family and Medical Leave Act leave by the time of the birth.  Are we required to give the employee additional leave after the baby is born?

Matt’s Analysis:

The answer to this question is complex because there are two different leave considerations at issue – (1) the leave while the employee is on bed rest and (2) any leave the employee may be entitled to after the baby is born – and it implicates the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), and, potentially, the Americans with Disabilities Act (ADA), in addition to whatever state laws may apply in your jurisdiction. Furthermore, employers are advised to tread very carefully in this situation, and those like it, because the Equal Employment Opportunity Commission (EEOC) recently brought renewed focus on the issues of discrimination against pregnant women and caregivers. See Press Release, EEOC, Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC (Feb. 15, 2012) (http://www.eeoc.gov/eeoc/newsroom/release/2-15-12.cfm).

As you likely know, the FMLA provides the employee with certain leave rights. Unlike the PDA or the ADA, the FMLA applies in this situation to both the pre- and post-birth leave. The FMLA requires covered employers to grant leave to employees for reasons including: (1) “a serious health condition that makes the employee unable to perform the functions of the position of such employee” and (2) “the birth of a son or daughter of the employee and in order to care for the son or daughter.” 29 U.S.C. § 2612(a).

The PDA prohibits discrimination against pregnant women. This Act applies only to the determination of the leave issue while the employee is on bed rest. The PDA requires an employer to treat the pregnant employee the same as if she were not pregnant. In the case of a request for additional leave beyond that permitted under the FMLA, an employer must treat the pregnant employee the same as it would any other employee with a medical condition that prevented the employee from working for a set period of time. If your company has a policy providing for additional leave, that leave must be offered to the pregnant employee under the same circumstances as it would be offered to any other employee with a health condition requiring leave.

Depending on the types of complications caused by the pregnancy and the extent of the bed rest restriction, an employee may also be disabled under the ADA. She will qualify as disabled if the unusual physical impairments caused by her pregnancy affect a major life activity and that major life activity is substantially limited by the impairment. Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), there were court decisions ruling both ways on the issue of whether pregnancy complications constituted a disability. Some of these cases relied on the specific nature of the limitation caused by the pregnancy complications, but other cases relied on regulations that indicated short-term impairments were not “substantially limiting.” Because pregnancy is inherently short-term, some courts found that the pregnant employee was not disabled.

Following the passage of the ADAAA, the U.S. Department of Labor (DOL) revised its regulations to be in harmony with and implement the new law. As part of these revisions, the DOL eliminated the regulations that included duration of the impairment as part of the “substantially limits” consideration. The regulations also now specifically state: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ix). In conformity with the ADAAA, the regulations also lower the standard required to meet the “substantially limits” definition. Thus it is much more likely that a pregnant employee who experiences unusual complications from her pregnancy, which limit her activities, will be “disabled” under the ADA.

In this situation, the employee’s physician has restricted her to bed rest with only short periods away from the bed to use the bathroom or to prepare a meal. This sedentary life style for, potentially, three months is sufficient to establish that she is limited in at least one major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Therefore, this employee would be considered disabled under the ADA for the duration of her bed rest.

Once it is determined that this employee is disabled, and she has asked for an accommodation, then it is the employer’s obligation to engage in the interactive process with the employee to determine whether there is a reasonable accommodation available. The EEOC has issued guidance finding that a reasonable accommodation includes permitting an employee to take unpaid leave. In this situation, given the extent of the employee’s restriction and the nature of her work, the only accommodation that is being requested is additional leave beyond that permitted by the FMLA. (For other employers, depending on the nature of the employee’s work, it may be possible to make arrangements that would permit the employee to work while she is lying in bed at home.)

When an employee may be entitled to leave under both the FMLA and the ADA, an employer should determine the employee’s leave rights under each law separately and then consider where the two laws may overlap. The first step in this situation would be to ask the employee how much leave she intended to use after the birth of her child. The typical leave is six to eight weeks. Assume for the sake of this discussion that the employee tells you that she already knows the birth will be by Caesarean section, so she will take eight weeks of leave following the birth. Thus, the total amount of leave she will take is approximately twenty weeks.

Twelve of those weeks are guaranteed under the FMLA. Part of the FMLA leave will cover the time after the birth and part of the FMLA leave will cover the time she is on bed rest. The remaining eight weeks of leave, which would be applied to the time she is restricted to bed rest, would be governed by the ADA. As the employer, you must determine whether this eight weeks of leave is a reasonable accommodation. If providing her with eight weeks of leave to accommodate her disability is going to place an undue hardship on you, then it is not a reasonable accommodation. There are a number of considerations that factor into whether an accommodation constitutes an undue hardship, so it is advisable to consult with an attorney before rejecting a requested accommodation on the basis of undue hardship.

As the foregoing illustrates, whenever the FMLA and ADA interact, there are a number of potential pitfalls for the employer. To avoid them, make sure you engage in proper communication with your employee, provide the employee with his or her full rights under the applicable laws, and, of course, consult with your attorney whenever you are uncertain about how to proceed at any particular stage in the process.

EEOC Guidance On Use of Criminal History in Employment Decisions

[Readers:  As you may have seen, the EEOC recently issued its policy guidance on the use of criminal history in employment decisions, particularly (though not exclusively) when used in the hiring process.  Set forth below is an article by my colleagues Doug Christensen and Courtney DaCosta addressing this recent development.  If you have questions about their analysis, don't hesitate to contact either of them (Doug: christensen.doug@dorsey.com, or 612.340.8875; Courtney: dacosta.courtney@dorsey.com, or 612.492.6017).

I hope you find the analysis below helpful.  Regards, Roy]

When Is a Proscription on Convictions an Impermissible Predilection?  EEOC Issues New Guidance on the Use of Criminal History in Employment

By:  Douglas R. Christensen and Courtney J. DaCosta 

Earlier this week, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance (“Guidance”) regarding the circumstances under which employers permissibly may, under Title VII of the Civil Rights Act of 1964 (“Title VII”), rely on arrest and conviction records in employment decisionmaking. See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (April 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The Guidance, while clarifying the agency’s position on this issue, also portends additional burdens for employers who need or want to consider applicants’ and employees’ criminal records.

The EEOC issued its Guidance in the midst of its ongoing Eradicating Racism and Colorism from Employment (“E-RACE”) initiative and on the heels of prominent enforcement actions involving allegations of race discrimination relating to the use of criminal history information. The most recent of those actions was venued in Minnesota and resulted in a $3.13 million settlement between the EEOC and Pepsi Beverages. See EEOC, Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans (Jan. 11, 2012), http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm. The Guidance is the EEOC’s first on this issue in more than 20 years.

Use of Criminal History Information in Employment Carries Pros and Cons

According to one recent survey, more than nine out of ten employers require at least certain applicants to submit to a criminal background check. See Soc’y of Human Res. Mgmt., Background Checking: Conducting Criminal Background Checks (Jan. 22, 2010), http://www.shrm.org/research/surveyfindings/articles/pages/backgroundcheckcriminalchecks.aspx.

This practice may be advisable for a number of reasons, including promotion of workplace safety; prevention of meritorious negligent hiring claims; and compliance with requirements imposed by federal, state, or local law. However, the use of criminal history information in employment can be frought with legal risks, chief among them potential liability for discrimination under Title VII, the federal statute that prohibits workplace discrimination on the basis of race (as well as color, national origin, sex, and religion).

Disparate Impact Concerns Dominate EEOC’s Guidance

The EEOC’s Guidance focuses principally on circumstances under which an employer’s consideration of criminal history information will have a prohibited disparate impact on applicants and employees on the basis of race. African American and Hispanic men, the EEOC observes, are arrested and convicted at rates disproportionate to their prevalence in the U.S. population. For this reason, an employer’s facially neutral practice of disqualifying for employment all or certain applicants who have a criminal record, or a certain type of criminal record, may have the effect of discriminating against African American and Hispanic individuals.

EEOC Frowns on Reliance on Arrest Information

As a preliminary matter, the EEOC’s Guidance strongly cautions against the use of arrest records in employment decisions under almost all circumstances. According to the EEOC, the fact that an applicant has been arrested in the past is insufficient evidence to support a conclusion that he in fact engaged in the conduct for which he was arrested. However, according to the EEOC, an employer may make an employment decision based on the conduct that led to the arrest “if the conduct makes the individual unfit for the position in question.” For example, a pharmaceutical company theoretically could deny employment in a sales representative position to an applicant whose criminal background check revealed that she had been arrested for dealing in prescription drugs.

Unfortunately, the EEOC’s Guidance does not indicate what steps, if any, the employer must take to determine whether the individual in question actually engaged in the conduct underlying his or her arrest. Particularly in the case of new job applicants, employers generally will have very limited ability to assess the validity of the arrest and the applicant’s culpability for the alleged conduct. For this reason, and given the EEOC’s obvious skepticism of the use of arrest records in hiring and employment, most employers would be wise to forgo this practice altogether.

Reliance on Conviction Records Can Be Permissible if Circumscribed

Employers have much greater leeway under the EEOC’s Guidance to consider conviction records in hiring and employment decisions. According to the EEOC, “a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.” The EEOC’s Guidance recommends that employers not, however, ask about criminal conviction history on job applications; instead, that inquiry should be reserved for a later stage of the hiring process. (It is worth noting that some states—but not Minnesota, in the case of private employers—separately prohibit inquiries regarding criminal history early on in the selection process).

If an employer’s selection criterion relating to conviction history has a statistically significant disparate impact on individuals of a certain race, the criterion will be deemed to violate Title VII unless it is “job related and consistent with business necessity.” In its recent Guidance, the EEOC opines that an employer may be able to justify a criminal-history-based selection criterion that has a disparate impact in one of two ways:

• First, the employer may validate the criterion in accordance with the Uniform Guidelines on Employee Selection Procedures, guidelines jointly promulgated in 1978 by the EEOC, the Civil Service Commission, the Department of Labor, and the Department of Justice. See 29 C.F.R. § 1607.1, et seq.
• Second, the employer may develop a “targeted screen” based on three factors articulated in a 1975 Eighth Circuit decision, Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975): (1) the nature of the crime, (2) the time elapsed since the crime, and (3) the nature of the position sought. In most cases, according to the EEOC, the employer also should engage in an “individualized assessment” with respect to any individual disqualified by the targeted screen.

Unfortunately, both options have the potential to entail substantial burden and expense for employers. The process of having a selection criterion validated pursuant to the Uniform Guidelines on Employee Selection Procedures can be cumbersome and time-consuming, and it can have the inertial effect of locking employers into validated procedures that may not accommodate changing business needs.

Use of the Green factors in employment decisionmaking is unlikely to be problematic in and of itself and, in fact, many employers already do consider factors such as these, whether purposefully or simply as a matter of common sense. Potentially more troublesome is the EEOC’s suggestion that employers undertake an “individualized assessment” for any candidate whom the Green factors exclude. According to the EEOC, such an assessment could include, but need not necessarily include all of, the following evidence:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts such as education and training;
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

Obviously, compilation and review of all of these data points is likely to be time-consuming, if not impossible, in the run of cases. The EEOC does note in its Guidance that “an employer may be able to justify a targeted criminal records screen solely under the Green factors” and that “Title VII thus does not necessarily require individualized assessment in all circumstances.” Given this Guidance, employers who elect not to engage in individualized assessments of candidates who are excluded by a selection criterion relating to conviction history, or who engage in only limited individualized assessments, should ensure that the selection criterion is narrowly tailored to the specific requirements of the position at issue.

Compliance with State or Local Law Is Not an Absolute Defense

As we noted above, federal, state, or local law may require the use of criminal history screening or make a clean criminal record a minimum requirement for certain positions, typically those that implicate safety or public health interests. Minnesota law, for one, includes many provisions of this nature. See Minn. House Research Dep’t, Criminal Background Check Statues: An Overview (Jan. 2010), http://www.house.leg.state.mn.us/hrd/pubs/bkgdchck.pdf.

The EEOC’s Guidance clarifies that, while adherence to a federal requirement of this nature will not violate Title VII, adherence to a similar state or local law may lead to Title VII liability due to the supremacy of federal law over state or local law. Employers who find themselves stuck between the rock of a state or local law prohibiting employment of individuals with certain criminal records and the hard place of potential disparate-impact liability should be sure to document thoroughly the reasons for their hiring and employment decisions based on criminal history and, if necessary, raise the conflict with appropriate state or local authorities.

EEOC and Dorsey Offer Suggested Best Practices

The EEOC’s Guidance sets forth a list of best practices for employers regarding the use of criminal arrest and conviction information:

• Eliminate policies or practices that exclude people from employment based on any criminal record;
• Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination;
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
• Identify essential job requirements and the actual circumstances under which the jobs are performed;
• Determine the specific offenses that may demonstrate unfitness for performing such jobs;
• Determine the duration of exclusions for criminal conduct based on all available evidence;
• Record the justification for the policy and procedures;
• Note and keep a record of consultations and research considered in crafting the policy and procedures;
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII;
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

We offer the following additional best practices to supplement the EEOC’s list:
• Consider, on a position-by-position basis, whether the benefits of criminal history screening are likely to outweigh the legal risks;
• Work with any third-party providers of criminal background reports to ensure that criminal history information not relevant to the position at issue is not communicated to decisionmakers in the first instance;
• Conduct individualized assessments of excluded candidates to the fullest extent possible under the circumstances;
• Document thoroughly the reasons for not selecting certain candidates based on screening factors or individualized assessments;
• Track applicant flow and selection data to assess on an ongoing basis whether a criminal history screen is having a disparate impact; and
• Remember that, while the issue of criminal history screening may come up most often in the hiring context, the EEOC’s Guidance is equally applicable to current employees.

Finally, it is worth noting that the EEOC’s Guidance does not carry the force of law and, therefore, will not automatically control in civil litigation under Title VII or similar state or local laws that prohibit employment discrimination. That said, the EEOC’s opinion on these matters is likely to be highly influential in the courts, and it will be the final word with respect to charges of discrimination filed under Title VII. While only time will tell the degree of influence the EEOC’s Guidance will have in the courts and at the state level, the prudent employer will take it to heart at this time.

The EEOC’s Q&A document regarding the Guidance is available here:

ttp://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

The EEOC’s press release relating to the Guidance is available here:

http://www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm.

Employment Trivia Game

Readers: We finally have a winner to the current Employment Trivia Question. The questions I posed were:

“Making your living in this way is bruising. Paul Simon sung about it. Bob Dylan sung about it. Name the Paul Simon song that referenced this profession. Name the two Dylan songs that focused on this activity. Who were the individuals about whom Dylan wrote?”

As Mark Tobin of Grand Forks, North Dakota, correctly observed, the questions related to boxing. Paul Simon’s song, “The Boxer,” is one of my personal favorites. For those of you unfamiliar with it, I’ve included a You Tube link: http://www.youtube.com/watch?v=y-YgA4WSWUA.

Bob Dylan has written two songs about boxing: “Who Killed Davey Moore?” and “Hurricane.” Davey Moore was a professional boxer who died in 1963 as a result of head injuries sustained during a nationally-televised boxing match. Rubin “Hurricane” Carter was a boxer who was convicted of murder on the basis of extremely thin (and dubious) evidence. His two convictions were both overturned and Carter is now a free man.

For providing the correct answers to these questions, Mark is (again) the latest winner of our Employment Trivia contest. He continues to acquire nearly every prize available in my prize box. Kudos to Mark!

The next question goes up now. Good luck. Roy