Another busy month in employment law has ended. April’s news included rulings from federal agencies on background checks and COBRA policies, court cases on free speech and data theft and, as always, some facepalm-worthy actions from companies. Let’s dive in
The big news this month was that the Equal Employment Opportunity Commission released some new enforcement guidance on how to use criminal background checks during the hiring process. Employers are still free to use these checks, but not in any manner that furthers discrimination of any type. The EEOC also specifies that information about factors other than the arrest or conviction (such as race, education, background, etc.) can’t be used for any discriminatory action. The agency included some best practices for applying the ruling, too.
While we’re on the subject of federal agencies, there were several other developments in that area this month: The IRS is increasing its audits of COBRA practices; the EEOC has ruled that transgender discrimination is part of sex discrimination and thus illegal; and the EEOC has also issued new Genetic Information Nondiscrimination Act (GINA) requirements.
Free speech and worker opinions also featured in the news this month. The Connecticut Supreme Court ruled that First Amendment protections don’t apply to workers in the course of their job duties. The military took an even harder line, discharging a Marine for disparaging President Obama and saying that he would not follow Obama’s orders on a Facebook “fan” page.
On the wage front, several lawsuits from the entertainment industry are alleging that unpaid interns did the work of entry-level workers and not given any of the benefits (such as education and/or course credit) interns are supposed to receive in exchange for their labor. And on the other end of employment, a Virginia appeals court has ruled that the concept of equal pay applies to severance too, so don’t offer one gender a better severance package than the other.
A recent ruling on data theft has many employers worried. The Ninth Circuit Court of Appeals recently ruled that the Computer Fraud and Abuse Act does not apply to theft of electronic data to which an employee had access as part of their job duties. A strong dissenting opinion was issued on the case, indicating that the court itself was split. Expect more developments on this issue.
In discrimination news, the New Jersey Superior Court recently ruled that an “accidentally hostile” work environment is still a hostile work environment. Employees of a construction company made anti-Jewish slurs against an employee they believed to be Jewish. He wasn’t, but the court held that a hostile work environment was still in play. It should go without saying, but still: any kind of bigotry on the job should be quashed, sharpish.
We conclude, as we often do, with cases that make you shake your head for one reason or another. A federal court charged a company with $35.2 million in fines for investing its employees’ 401(k) money in a fund with higher fees so that the fund company would charge the employer less for other services. And finally, a Manhattan nail salon lost big-time when it tried to claim that its employees weren’t covered by Fair Labor Standards Act rules governing overtime pay… because the employees were illegal aliens. Needless to say, large fines and further investigation ensued.