Here’s a good article on the latest EEOC litigation on criminal background checks (http://bit.ly/11nFInW). It underscores the fact that criminal background checks have limited validity for predicting job success, by acknowledging that the workers fired from the BMW contract positions had been successfully performing the job prior to being let go. Employers are advised to review their policies regarding criminal history records check policies very carefully. To summarize the EEOC’s guidance, employers should:
1) narrowly tailor written policy and procedure for screening applicants and employees for criminal conduct;
2) identify essential job requirements and actual circumstances under which jobs are performed;
3) determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions;
4) limit inquiries to records to exclusions that would be job related for the position in question and consistent with business necessity;
5) train decision makers on how to carry out the policy in accordance with Title VII.
Although Colorado recently legalized the recreational use of marijuana, the recent Colorado Court of Appeals decision in Coats v. Dish Network has upheld that employers may lawfully terminate employees who test positive for the drug. The court decision reasons that because marijuana use remains illegal under federal law, employers may defer to that standard in prohibiting employee use of the drug, even off the job.
Brandon Coats is a medical marijuana patient who was terminated by Dish Network after testing positive for TCH during a random drug test. Coats filed suit claiming his medical marijuana use was constitutionally protected. He plans to appeal the decision to the Colorado Supreme Court.
Following the EEOC’s lead on the use of criminal history records in making hiring decisions, the OFFCP has issued a directive cautioning government contractors on excluding applicants from employment based on criminal history. The OFCCP cautions that federal contractors should not categorically exclude applicants with criminal history records. Such exclusions are likely to lead to disparate impact liability because of the racial and ethnic disparities in arrest and incarceration rates. Rather, contractors should follow EEOC’s guidance and engage in individualized assessments if they have screening policies that consider criminal conduct. Federal contractors may still utilize a criminal record exclusion if they can show that it is job related and consistent with business necessity by considering:
— the nature and gravity of the individual offense or conduct;
— the elapsed time between the criminal conduct and the employment application;
— the nature and duties of the essential functions of the job sought.
To view the OFCCP directive: http://bit.ly/VSwAVz
Dillard’s has agreed to pay $2M to settle claims that it violated the terms of the Americans With Disabilities Act (ADA) by requiring employees to disclose the exact nature of requests for sick time. Under the ADA, employers may required a doctor’s note stating the requested time off is medically necessary, but employers may not make inquiries that would disclose information about a disability or require specific health-related information. Dillard’s was also cited for having a one-size-fits-all policy of terminating employees for taking sick leave beyond that allowed by company policy, without considering whether medical leave may be considered a reasonable accommodation under the ADA. For more, see: http://bit.ly/12w65p3
Yesterday, the Huffington Post ran an article about how some small businesses are finding great employees in those with criminal histories. This underscores the recent EEOC guidance aimed at ensuring that inquiries into credit and criminal history background be job related for the position in question and consistent with business necessity. Find the article at: http://huff.to/YwR6cu