by Steven Collis

In its first class action lawsuit challenging an employer’s use of criminal records, the Equal Employment Opportunity Commission (EEOC) ended up dropping its case against PeopleMark and getting socked with $750,000 in sanctions. Recently, the EEOC suffered another stinging loss when a federal court dismissed its discrimination case against Kaplan Higher Education Corporation (which was discussed in a previous blog post, “EEOC’s use of ‘race raters’ against Kaplan University gets failing grade”) based on an unsound analysis by the commission’s expert witness. With the same expert providing statistical evidence in another case, could the agency strike out in a third background check class action lawsuit?

Over the past few years, the EEOC has aggressively challenged the use of credit reports and criminal history checks in hiring decisions, alleging that use of the information results in a discriminatory impact on candidates in protected groups. In 2012, the commission successfully negotiated a $3.13 million prelawsuit settlement of a race discrimination charge against Pepsi in which the soda giant’s criminal background check policy was called into question for allegedly discriminating against African Americans. However, the agency has been less successful pursuing similar cases in court, mainly because of its struggle to proffer reliable evidence of discriminatory impact. Despite the EEOC’s mixed results, the recent settlements and case filings indicate that the use of credit and criminal history checks in the hiring process is a hot topic. read more…

The U.S. Department of Labor’s (DOL) Bureau of International Labor Affairs has released “Reducing Child Labor and Forced Labor: A Toolkit for Responsible Businesses,” the first guide developed by the U.S. government to help businesses combat child labor and forced labor in their global supply chains. According to the International Labor Organization (ILO), worldwide there are 215 million children in child labor, with 115 million performing hazardous work. It also estimates that 21 million people are in forced labor, six million of them children.

Using the DOL’s toolkit should help employers reduce “the chance that your products—and the raw materials they come from—are manufactured, mined or harvested by children who should be in school, or by workers locked in sweatshops or forced into work through false promises or threats.” read more…

by Brandon Gearhart

A recent decision from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Kentucky, Michigan, Ohio, and Tennessee employers) illustrates the importance of the interactive process when making employment decisions about a disabled worker. The court returned a previously dismissed Americans with Disabilities Act (ADA) claim to the lower court, in part because the employer made a decision regarding disability accommodations without consulting the disabled worker. 

Facts

Nicholas Keith was born deaf and is unable to speak. After receiving lifeguard certification from Oakland County, Michigan, he applied for a lifeguard position at the Oakland County wave pool in 2007. Katherine Stavale, Oakland County’s recreational specialist, offered Keith a lifeguard job conditioned on him passing a physical exam. Dr. Paul Work performed the exam. After looking at Keith’s medical records, Work stated, “He’s deaf; he can’t be a lifeguard.” He failed Keith because he didn’t believe he could function independently as a lifeguard. read more…

by Tammy Binford

Consider the modern workforce: The up-and-coming Gen Y Millennials sit alongside Gen Xers, baby boomers, and even a few 70-and-older workers who’ve decided to delay retirement or skip it altogether.

Researchers tout an era when four distinct groups inhabit the workplace—those born in 1945 and before, the boomers born from 1946-1964, Generation X born from 1965-1978, and Generation Y born from 1979-1997. Granted the oldest generation makes up a tiny slice of the workforce and many employers won’t have all four age groups represented, but age diversity is a reality that savvy employers can use to their advantage—if they understand what makes people in various stages of life tick. read more…

by Edward Sisson

The acting deputy administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued Administrator’s Interpretation (AI) No. 2013-1 on January 14 to explain the WHD’s position on who is considered a son or daughter under Section 101(12) of the Family and Medical Leave Act (FMLA). The administrator concluded that parents who are eligible employees of covered employers are entitled to take FMLA leave to care for an adult child who is disabled or has a serious health condition without regard to the child’s age when the disability began.

FMLA refresher

Under the FMLA, an eligible employee of a covered employer is entitled to take up to 12 workweeks of unpaid job-protected leave during a 12-month period for specified family and medical reasons. One of the specified reasons is to care for a son or daughter who is disabled or has a serious health condition.

The FMLA military caregiver provision entitles an eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty to take up to 26 weeks of leave in a single 12-month period to care for the servicemember. read more…

by Judith E. Kramer

On January 28, a federal court ruled in favor of Kaplan Higher Learning Education Corp. and Kaplan University in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The EEOC had alleged that Kaplan’s use of credit history reports in making hiring decisions violated certain provisions of Title VII of the Civil Rights Act of 1964 because the practice has a disparate impact on black applicants.

Background

The defendant in this case was a group of educational institutions. As the court noted, educational institutions operate in a highly regulated industry. The U.S. Department of Education (DOE) provides financial aid to many students enrolled at Kaplan University and Kaplan Higher Learning Education and requires its participants to have in place quality controls that limit access to student and parent information. read more…

by Rebecca A. Kopp

The U.S. District Court for the Southern District of Ohio has expanded the practices that may be considered protected religious views. The court refused to dismiss a vegan employee’s federal and state religious discrimination claims and permitted the parties to engage in further discovery (the pretrial exchange of evidence relevant to the case).

Facts 

Sakile Chenzira worked as a customer service representative at Cincinnati Children’s Hospital Medical Center for more than a decade. She routinely refused her employer’s requirement that hospital employees receive an annual flu shot. As a practicing vegan, she objected to the flu shot because the vaccine is grown in chicken eggs and vegans do not ingest any animal products or by-products. read more…

On February 5, 1993, the Family and Medical Leave Act (FMLA) became the first legislation signed into law by President Bill Clinton. On February 5, 2013, the U.S. Department of Labor (DOL) celebrated the 20th anniversary of the Act by publishing new FMLA regulations and holding a special event attended by President Clinton, former Secretary of Labor Alexis Herman, and others who promoted the 1993 statute.

The agency also released “Family and Medical Leave in 2012,” a report on the law compiled for the DOL that reviewed the status of the FMLA in 2012 and opined on proposals to change the law. The report surveyed 1,812 worksites, some covered and some not, and 2,852 employees, some eligible for FMLA leave and some not. Here are some of the facts from the report: read more…

Today’s workers are likely to celebrate their 65th birthdays with a cake and a short gathering of coworkers in the break room – not with a big retirement party complete with the awarding of a gold watch. Retirement has taken on a new look, and employers must be ready for that trend to continue.

The U.S. Census Bureau released a report in January showing that the workforce participation rate for people 65 and older has been on the rise for the past 20 years but especially during the last decade. The Census Bureau’s new American Community Survey brief says that the percentage of people 65 and older in the labor force increased from 12.1 percent in 1990 to 16.1 percent in 2010. Within the 65 and over population, 65- to 69-year-olds saw the largest increase in labor force participation.

read more…

by Mark I. Schickman

People often complain that California employment law is bizarre. My colleagues around the country call our judges “fruits and nuts.” To the contrary, however, while our legislature is farther left than most states’ legislatures and our juries are more profligate than most, our appellate courts are relatively centrist. The award for the most bizarre supreme court employment decision of 2012 goes to Iowa and its dismissal of dental hygienist Melissa Nelson’s sex discrimination claim against her boss, James Knight, DDS. read more…