Minnesota Employment Law Report

EEOC Issues New Enforcement Guidance on the Use of Arrest and Conviction Records

Grant T. Collins — Thu, 10 May 2012 11:26:35 -0600

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance on using arrest and conviction records when making employment decisions. The EEOC is aggressively pursuing this issue, as reflected by EEOC Commissioner Ishimaru’s remark at a recent public meeting that the EEOC is currently investigating hundreds of cases where employers unlawfully used criminal history in employment decisions.

What an Employer Can Ask?

The Guidance recommends that employers not ask about convictions on applications. When such questions are asked during other parts of the pre-employment process, they should be job-related.

The Guidance states in no uncertain terms that use of arrest records is not job related. However, when an applicant or current employee is arrested, the underlying conduct that led to the arrest can be considered if it renders the individual unfit for a position and only if the conduct is verifiable and not based solely on the fact of an arrest.

What Factors Should Employers Consider?

The EEOC has long declared that decisions based on a criminal conviction must consider these factors: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought. The new Enforcement Guidance, adds substance to these declarations.

Considering the nature and gravity of the offense(s) requires evaluating the harm caused, the legal elements of the crime, and the classification (i.e, misdemeanor or felony). As to the amount of time that has passed, employers should evaluate each case individually and consider studies of the risk of recidivism. As to the nature of the job, the EEOC says to look beyond the mere job title to analyze the duties, essential functions, and work environment.

Is an Individual Assessment Required?

While stopping short of saying that an individualized assessment is needed, the EEOC makes clear that “the use of a screen that does not include individualized assessment is more likely to violate Title VII.” An individualized assessment generally means that an employer (a) informs the individual that he may be excluded because of past criminal conduct, (b) provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him, and (c) considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

Employer Best Practices

The Guidance suggests several “Best Practices” for employers who are considering criminal record information when making employment decisions.

Eliminate policies or practices that exclude people from employment based on any criminal record;

Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;

Develop a narrowly tailored written policy and procedures for screening for criminal records;

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;

Identify the criminal offenses based on all available evidence;

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 decision-makers 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 the criminal records of applicants and employees confidential.

Bottom Line

The use of criminal records in hiring or employment decision making is not illegal, but the EEOC has made it very clear that employers using them must demonstrate that such use is “job related and consistent with business necessity.” The practices outlined above would be a good start in meeting that standard.

EEOC Finds Transgender Individuals Protected Under Title VII

Randi J. Winter — Wed, 02 May 2012 12:27:49 -0600

Posted by Randi J. Winter

On April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) held that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is a cognizable claim of sex discrimination under Title VII (Macy v. Holder, EEOC, Appeal No. 0120120821). The EEOC’s decision is in line with several Federal Circuit and District Court opinions in recent years finding transgendered individuals protected by Title VII.

Macy, a police detective with the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency (ATF), sought a transfer from Arizona to California. In January 2011, while still identifying herself as a man, Macy spoke with the Director of a California ATF crime lab about an open position at the lab. The Director allegedly indicated to Macy the job was hers, subject to a background check.

Before her background check cleared, Macy notified the Director that she was in the process of transitioning from male to female. Within a few days of providing this notice, Macy was told that the position was no longer available due to budget reductions. When Macy pursued the issue with an ATF counselor, she learned that the position had actually been filled by another candidate.

Macy then filed a complaint of sex discrimination with the agency. Her complaint was initially dismissed on the basis that Title VII did not cover claims of “gender identity” and “sex stereotyping.” On appeal, the EEOC disagreed, reasoning that Macy’s complaints fit within the category of “sex discrimination.” According to the EEOC, sex discrimination “occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”

The EEOC went on to note, however, that it did not intend to create a new “protected class” for transgendered people by virtue of its holding. Rather, the agency explained that discrimination against an individual because he or she is transgender “is, by definition, discrimination based on sex” since Title VII “encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

Bottom Line

Employers should be mindful that civil rights laws prohibit them from treating applicants and employees differently not just based on biological gender, but also the characteristics and social norms associated with gender.

Federal Court Issues Injunction and the Board Backs Down: Employers Do Not Need to Post the NLRB Notice on April 30

Jessica M. Marsh — Tue, 17 Apr 2012 13:28:18 -0600

Posted by Jessica M. Marsh

As we reported earlier, on April 13, 2012, a federal judge in South Carolina ruled that the National Labor Relations Board (“the Board”) had no authority to require private-sector employers to post an Employee Rights Notice, disagreeing with another federal judge in the District of Columbia, who held on March 2 that the Board could require the posting.

Earlier today, the D.C. Circuit granted the National Association of Manufacturer’s emergency motion for an injunction pending appeal because of the split of opinion between the district courts. Nat’l Assoc. of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. April 17, 2012). The Circuit reasoned: “The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.” The Circuit will handle this appeal in an “expedited” manner, and the court will hear oral arguments in September.

This afternoon the Board issued a press release, which stated: “In view of the D.C. Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”

Bottom Line

While the injunction remains in force, employers do not need to post this notice. We will be closely following this issue and stay tuned for further developments.

Stop the Presses! Federal Judge Rules NLRB Lacks Authority to Order Notice Posting

Charles E. Feuss — Sun, 15 Apr 2012 10:42:05 -0600

Posted by Charles E. Feuss

On Friday, April 13, 2012, Judge David Norton of the U.S. District Court of South Carolina ruled that the NLRB (“the Board”) lacked the authority to promulgate a rule requiring private sector employers to post an Employee Rights Notice intended to inform employees of their rights under the National Labor Relations Act (NLRA). U.S. Chamber of Commerce et al. v. NLRB, Case No. 11-cv-02516 (D.S.C. April 13, 2012).

Subsequently, the District of Columbia Circuit Court of Appeals issued an injunction that temporarily prohibits the Board from enforcing the posting requirment.

This means that for now, the notice does not need to be posted by April 30.

As we previously reported, another federal district court reached a contrary result, holding that the Board could require the posting but lacked the authority to impose the penalty aspects of the Board's rule. Nat'l. Assn. of Manufacturers v. NLRB, Case No. 11-1629 (D.D.C. Mar. 2, 2012). The DC Circuit pointed to this case and barred the Board from enforcing the posting rule while the appeal from that decision is pending.

In the South Carolina case, Judge Norton sided with the Chamber of Commerce, ruling that the Board lacked the authority under the Administrative Procedure Act to promulgate a notice requirement. The NLRB argued that the posting requirement furthered their statutory mission of promoting collective bargaining and safeguarding employee rights under the Act. They claimed that since Congress failed to specifically include notice posting in its grant of authority to the Board, the agency should be allowed to "fill the gap" left by Congress. Judge Norton disagreed, finding that agencies may only promulgate rules where doing so is "necessary to carry out" a provision of the grant of authority from Congress. Requiring employers to post a notice of employee rights is not "necessary" to accomplish the Board's mission under the Act.

The Board has repeatedly contended in court and in statements to the general public that they should be allowed to require the notices because other federal agencies charged with enforcing other workplace laws require notices to be posted. Judge Norton observed, however, several other workplace laws, such as Title VII and the Fair Labor Standards Act, have a specific grant of authority to require such posting. Judge Norton felt that because the NLRA does not, the Board’s argument was unpersuasive.

Bottom Line

This is just the latest in the back and forth activity relating to the NLRB’s notice-posting rule. Until the DC Court appeal is resolved (or until some other development emerges), employers need not post the notice and may safely keep that space on their company bulletin boards empty.

Employers Should Think Twice before Logging In to an Applicant's Facebook Account

Grant T. Collins — Fri, 30 Mar 2012 16:40:29 -0600

Posted by Grant T. Collins

All of a sudden, the prospect of employers demanding Facebook passwords as part of the hiring process has burst onto the scene. Cries of outrage have ensued - Facebook hinted at legal action, the ACLU is talking privacy-related lawsuits, state legislators (including one in Minnesota) are drafting bills in prohibiting the practice, and two U.S. Senators are calling for investigations by the Department of Justice and the Equal Employment Opportunity Commission.

Employers’ use of social networking sites (“SNS”) like Facebook or LinkedIn to screen applicants is nothing new. One 2011 Reppler study even found that 91% of employers were doing it and that 69% of those eliminated at least one candidate based on information uncovered.

Just what are the risks of using SNS’s in the pre-employment arena?

Risks of Reviewing SNS Information

In general, anti-discrimination laws prevent employers from asking applicants about their marital status, pregnancy, future child bearing plans, religion, disability and other questions related to characteristics or traits protected by these laws. Perusing an applicant’s Facebook page or Twitter site may allow the employer to obtain this prohibited information, and may give the rejected applicant reason to believe that it was this information that caused them to lose the job, not their lack of qualifications or poor interviewing skills.

Risks of Asking for Applicants’ Passwords

In particular, requesting an applicant’s SNS password may also violate the federal Stored Communication Act (“SCA”) or the Computer Fraud and Abuse Act (“CFAA”). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information.

Of course, neither of these statutes applies where the individual has consented to the access. Thus, the question becomes whether any such consent is truly voluntary or whether it was coerced by the threat of not getting the job if the consent is withheld.

In the case of Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009), for example, employees created an online chat group for venting frustrations about the employer and their managers. When the company learned of the site, one participating employee provided her log-in information under the belief that she was would have been penalized if she did not do so. This was enough for the jury to find that the access was not authorized and that it violated the SCA.

Bottom Line

While Pietrylo involved a current employee, the analysis seems just as compelling in the pre-hire context. For this reason, until we have more certainty about the legalities of this practice, employers should be wary of requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites.

This does not mean that SNS’s are not valuable tools in an overall pre-employment procedure. It just means that employers should be cautious about whether they wish to enter this legal gray area by requiring access to what is otherwise considered a private domain.

Court Clarifies Timing Calculation for FMLA Retaliation Claims

Dennis J. Merley — Tue, 20 Mar 2012 23:11:35 -0600

Posted by Dennis J. Merley

The Latin expression “post hoc, ergo propter hoc” (“after this, therefore because of this”) is often cited as justification for claiming retaliation when an employee is fired within a month or two of filing a workers compensation claim, returning from a FMLA leave, or reporting allegedly illegal activity.

Recently, however, the Eighth Circuit Court of Appeals (which hears cases arising in Minnesota) ruled that where two months separate the protected activity and the termination, the employee needs more than the mere sequence of events to establish a connection between the two events.

This Will Be the Last Time

Mary Ellen Sisk, a Studio Manager at a Picture People retail store, took a 10-day leave under the Family and Medical Leave Act (FMLA) on June 3rd due to hip pain. During the leave, her condition worsened and she ended up having surgery on both hips, requiring that she remain off work for an additional 8 weeks.

Sisk returned to work with no restrictions but apparently struggled enough that co-workers immediately expressed concerns to management. On her third day back, company managers expressed concerns about Sisk’s health, asked her to return to her doctor and suggested that she should think about quitting and then reapplying when she was truly healthy enough. Sisk got up, tore up her name tag and walked out, believing she had just been fired. She sued the company in federal court for FMLA retaliation and appealed to the Eighth Circuit after her case was dismissed before trial.

The key to a retaliation claim is proof of a connection between the protected conduct and the adverse action (i.e., the “causal connection”). Sisk confidently asserted that the timing of the constructive termination -- just three days after her return from leave -- was sufficiently suspicious to allow the connection to be made. The appeals court disagreed, explaining that where timing is the only factor connecting the protected activity and the adverse action, the law must evaluate the employer’s actions when they first learn of the protected activity, not when that activity actually takes place or concludes. Therefore, the question to be addressed was whether a constructive termination occurring more than two full months after the employee begins an FMLA leave could establish a causal link between the two.

The Court noted that in previous cases of this type, they had ruled that a two-week separation might be “barely enough” to establish a connection, and that one month was too long. As such, the separation of two months in this matter was clearly too great to establish a causal connection between the two events and the dismissal of the case affirmed accordingly. Sisk v. Picture People, Inc., Case No. 10-3398 (8th Cir. Feb. 28, 2012).

Bottom Line

Employers should always give careful consideration to how it will look when they terminate an employee soon after he or she engages in protected activity. This case tells us, however, that as long as there is nothing to support the retaliation claim other than the Latin phrase quoted earlier, the employer will have a very respectable case and should end up happy.

Federal Court Upholds NLRB Posting Requirement, Strikes Down Some Mandatory Penalties for Noncompliance

Grant T. Collins — Thu, 08 Mar 2012 16:22:14 -0600

Posted by Grant T. Collins

On Friday, March 2, 2012, a federal judge in Washington, D.C. upheld the National Labor Relations Board requirement that nearly all employers must post a notice of employee rights under the National Labor Relations Act. After two self-imposed delays, the judge’s decision paves the way for the requirement to go into effect on April 30, 2012.

The judge did strike down two pieces of the NLRB’s enforcement scheme, but the judge took care to limit the practical effect of that determination.

Posting Requirement

The court first upheld the NLRB's posting requirement. The court found the Board had not overstepped its congressional authority by mandating the notice and that the notice-posting requirement did not violate employers’ First Amendment rights.

Enforcement of the Posting Requirement

The NLRB’s new rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.

The court struck down two of the three enforcement mechanisms, noting that the Board exceeded its authority from Congress when it labeled the failure to post an unfair labor practice and that such failure could toll the 6-month statute of limitations. The court did not strike down the union animus provision of the rule. According to the court, “unlike the unfair labor practice and tolling provisions, the animus provision neither creates an unfair presumption nor relieves the Board of making a case by case determination.”

Limited Help to Employers

Despite specifically striking down the tolling provision and the unfair labor practice provision, the court was careful to limit the practical effect of its ruling. Specifically, the court held only that the Board cannot make “a blanket advance determination” that the failure to post will always constitute an unfair labor practice or toll the statute of limitations. Thus, according to the court, “the Board could still find failure to post to be evidence of an unfair labor or justification for equitable tolling in individual cases.”

Bottom Line

Because the court upheld the posting requirement, employers should assume they will be required to comply with the posting rule and should post the notice on or before April 30, 2012. The NLRB has published its Employee Rights Poster on its website (a printer-friendly version is available here).

Given the limited practical effect of the court’s ruling as to the NLRB’s enforcement of the rule, employers should carefully consider the risks that could come from failing to post the notice.

Stay tuned for further developments.

Court Holds Posting Embarrasing Family Photos on Facebook Is Not Harassment

Grant T. Collins — Fri, 02 Mar 2012 01:04:44 -0600

Posted by Grant T. Collins

Say “CHEESE!” How many times is this dreaded word uttered at family functions? While the resulting pictures may be embarrassing, could the photo ever be a form of harassment or an invasion of privacy? Aaron Olson certainly thought so.

After discovering childhood photos of himself on his uncle’s Facebook page (which his uncle refused to remove), Olson filed a harassment suit in Minnesota state court. Olson claimed that the pictures and his uncle's comments were a form of harassment because they had "a substantial adverse effect [on his] safety, security, or privacy." Despite finding the uncle's comments to be "mean and offensive," the judge refused to issue a harassment restraining order.

On appeal, Olson took a different approach, arguing that the photos harassed him by violating his privacy. Since Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), Minnesota has recognized three types of invasion-of-privacy torts: “intrusion upon seclusion”, appropriation of one’s name or image, and publication of private facts. Olson also argued that the Facebook postings constituted a fourth form of invasion of privacy that some states have recognized but Minnesota has not -- that the postings portrayed him in a “false-light.”

The Minnesota Court of Appeals quickly rejected Olson's invasion-of-privacy argument because he had not raised it in the lower court. They further stated that since the term "harassment" is already defined in a separate Minnesota statute, Olson’s attempt to prompt a new definition of the term need not be considered.

Ultimately, the court of appeals appeared to agree with the lower court’s finding that innocuous family photos "could not possibly serve as a basis for harassment." Therefore, much to the relief of amateur photographers throughout the state, Olson’s harassment claims were dismissed.

The entire opinion can be read here: Olson v. LaBrie, 2012 WL 426585 (Minn. App. Ct. Feb. 13, 2012).

Bottom Line

While this case involved a private family dispute rather than an employment matter, the decision does seem to indicate that Minnesota courts are reluctant to rule on behavior that is simply rude or obnoxious. Therefore, while posting awkward photos on Facebook might generate some bad feelings at the next family gathering, they probably won’t have legal consequences unless the photos truly go beyond well beyond embarrassing or awkward.

FMLA Proposed Regulations: Potential Changes Ahead

Dennis J. Merley — Tue, 21 Feb 2012 22:34:28 -0600

Posted by Dennis J. Merley

On January 30, 2012, the Department of Labor (DOL) issued proposed revisions to regulations involving the Family Medical Leave Act (“FMLA”). To a significant degree, the proposed regulations simply memorialize certain interpretive changes announced last year regarding eligibility for exigent circumstances and military care giver leave. The remaining proposals are an interesting mix of tweaks and fine-tuning.

Exigent Circumstances

The new proposed regulations memorialize last year’s announcement by the DOL that exigent circumstances leave would now cover the families of members of the regular armed forces (e.g., army, navy, air force), but that the exigency had to arise from deployment in a foreign country. Foreign deployment will now include deployment in international waters. Other proposed include expanding the time available for “Rest and Recuperation” from five days to fifteen, adding attendance at a funeral as a qualifying post-deployment event and permitting leave for child care and school activities even if the employee is not the parent of the deployed military member’s child.

Military Caregiver

The proposed regulations also memorialize interpretative changes announced last year for military care giver leave. These changes included covering care provided to veterans for up to five years following release from service and including aggravation of preexisting conditions as a serious illness or injury warranting care. Other changes include:

Providing that military care giver leave need only begin within the five years after discharge; the employee could continue exhausting the allotted 26 weeks into the sixth year if needed;

Expanding "serious injury or illness" to cover a physical or mental condition:
- for which a VA Servife Related Disability Rating of 50 percent or higher was issued, or
- where the condition substantially impairs the veteran's ability to secure or follow a substantially gainful occupation.
Allowing non-military health care providers to certify the serious illness or injury arising from military duty.

General Provisions

The proposed regulations also seek to eliminate a recent rule allowing employers to delay reinstatement from FMLA leave if it was a physical impossibility (e.g., a flight attendant seeking to return to an assignment on an airborne plane) and remove the certification forms from the regulations (even though the DOL would still maintain them on their web site and encourage their continued use).

Bottom Line

The DOL is seeking public comment on the new regulations, after which they will reexamine the proposals and likely issue a final version.

Labor Board Strikes Down Employer's Mandatory Arbitration Agreement

Thomas R. Trachsel — Thu, 09 Feb 2012 08:26:48 -0600

Posted by Thomas R. Trachsel

As we previously reported, the U.S. Supreme Court in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) upheld a class action waiver included in a consumer contract that required customers to individually arbitrate their claims. We reasoned that employers could use similar class action waivers in employee arbitration agreements in order to avoid class/collective action claims. But, a recent decision by the National Labor Relations Board concludes that such an agreement violates federal labor law.

Specifically, the NLRB held that an employer violated the National Labor Relations Act by requiring its employees (as a condition of employment) to sign an arbitration agreement, which precluded them from filing joint, class, or collective claims against the company in any forum (arbitration or the courts). D.R. Horton, Inc., 357 NLRB No. 184 (2012).

The arbitration agreement provided (1) that the employee waived his/her right to file an employment-related lawsuit or civil proceeding against the company; (2) that arbitration would be the exclusive mechanism to resolve any disputes/claims relating to the employee’s employment; and (3) that the arbitrator would only be empowered to hear individual claims, and would not have the authority to decide class or collective cases.

The Board held that the employer violated Section 8(a)(1) of the National Labor Relations Act by requiring its employees to sign the arbitration agreement on the theory that it “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection.” In the Board’s view, an individual who pursues a class or collective action regarding hours or pay (or other working conditions) seeks to initiate or induce group action, and is therefore engaged in concerted activity that is protected by Section 7. According to the Board, it was unlawful for the employer to require that the employees simultaneously waive their right to pursue employment litigation (including collective actions) through the courts, and their ability to pursue collective actions through arbitration.

Bottom Line

This is another example of the Board taking a broad view of what constitutes protected activity under the National Labor Relations Act. The Board’s decision is controversial, and it will almost certainly be appealed.

Minnesota Employment Law Report

EEOC Issues New Enforcement Guidance on the Use of Arrest and Conviction Records

EEOC Finds Transgender Individuals Protected Under Title VII

Federal Court Issues Injunction and the Board Backs Down: Employers Do *Not* Need to Post the NLRB Notice on April 30

Stop the Presses! Federal Judge Rules NLRB Lacks Authority to Order Notice Posting

Employers Should Think Twice before Logging In to an Applicant's Facebook Account

Court Clarifies Timing Calculation for FMLA Retaliation Claims

Federal Court Upholds NLRB Posting Requirement, Strikes Down Some Mandatory Penalties for Noncompliance

Court Holds Posting Embarrasing Family Photos on Facebook Is Not Harassment

FMLA Proposed Regulations: Potential Changes Ahead

Labor Board Strikes Down Employer's Mandatory Arbitration Agreement

Federal Court Issues Injunction and the Board Backs Down: Employers Do Not Need to Post the NLRB Notice on April 30