Criminal background checks have been a major issue for the EEOC lately, but a Maryland federal court recently shot down the agency’s theory that such checks form an unfair barrier to hire. It’s still advisable to tailor your background checks for each individual applicant, and it’s probably more cost-effective, too.
One thing that definitely doesn’t form a barrier to hire or discrimination is an applicant’s refusing to complete an application. When a job applicant learned that a particular hiring manager of the staffing firm that was recruiting him was likely to be involved in the hiring process, he refused to participate in that process any further. Not surprisingly, a circuit court of appeals ruled that the applicant’s behavior, not any kind of discrimination, was the problem here.
Of course, we’re sure that you’d never employ anyone who’s not authorized to work in the U.S. But if you did, they’d still be protected by the Fair Labor Standards Act (FLSA), which was affirmed by a circuit court of appeals ruling that undocumented workers are still covered by wage and hour laws.
And while we’re on the topic of the FLSA, a recent case from a circuit court of appeals reaffirms something we like to say from time to time: workers can’t sign away their rights, even if they’re being offered money to do so. Also: if you don’t insist on a formal timekeeping procedure, you’re leaving yourself wide open for a lawsuit.
Speaking of formal procedures, having clear, well-communicated policies for calling in absent can protect you from some FMLA suits. The 2009 version of the FMLA itself states: “(W)here an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.”
You can also be protected from ADA lawsuits by providing reasonable accommodation of an employee’s disability. You probably knew that, but a recent circuit court of appeals case confirmed it: the accommodation doesn’t have to be perfect, nor does it have to be the employee’s preferred option. It just has to be reasonable.
You know what’s not reasonable? Creating a fake Facebook profile to see what an employee’s writing about your company on his private Facebook page. It should probably go without saying, but it doesn’t hurt that a court arbitrator recently affirmed it.
Also not on the “smartest moves” list: Comparing a female employee’s appearance unfavorably to that of other women in the office. Actually, comparing anyone’s appearance, at all, favorably or otherwise, is not a great idea, unless the issue at hand is a dress code and you’re talking only about professional attire. So telling someone they’re “not that pretty” while calling their coworkers “just gorgeous” isn’t just thoughtless and hurtful, it’s a really bad idea, especially if you’re also refusing to pay them for accrued vacation and sick time.
Hope you had a great summer. See you in the legal news next month!