by Tim Murphy

In 2010, the Massachusetts Legislature made sweeping changes to the statute governing employers’ use of Criminal Offender Record Information (CORI). In addition to prohibiting employers from asking about an applicant’s criminal history on the job application, the amendments called for additional changes to the way employers access CORI data and how they must use and maintain that information. Those remaining changes become effective May 4 and include the following:

• Web-based access for all employers. CORI data soon will be available to all employers via a new Web-based criminal background database called iCORI on May 7. Initially the information will be limited only to felony convictions less than 10 years old and misdemeanor convictions less than five years old; however, all convictions for murder, manslaughter, and certain sexual offenses will appear on the subject’s iCORI report regardless of the age of the conviction.
• Notification requirements. Beginning in May, employers must provide applicants and current employees with a copy of their criminal history reports before either questioning them about the reports or making adverse employment decisions based on the information therein. This requirement applies to all criminal background information, regardless of whether it is obtained through iCORI. Employers that intend to base an adverse decision on a criminal history search also should provide the candidate with a copy of the Department of Criminal Justice Information Services’ document Information Concerning the Process in Correcting a Criminal Record.
• Record-keeping requirements. There are new, strict record-keeping requirements and record-keeping limits for employers that receive CORI data. Employers must obtain signed acknowledgment forms before conducting a search, and the forms must be kept for one year from the date of the request for information.
• Dissemination restrictions. Employers may share CORI data only with persons in their organization with a need to know the information. Employers also must keep a log of all persons with whom the information is shared, and the log must be maintained for a year after the date of dissemination.
• Data storage. Employers are required to store hard copies of CORI data in locked and secured locations. Electronically stored data must be password-protected and properly encrypted. Data may not be stored for more than seven years, and employers must implement effective means for destroying or deleting such information.
• Written policy requirements. Employers that annually conduct five or more criminal background investigations now will need to maintain a written CORI policy. This policy must indicate that the employer will notify applicants of any potential adverse decision based on CORI information, provide applicants with their CORI report and the employer policy, and provide information concerning the process for correcting a criminal record.

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By Richard J. Morgan

For over 75 years, the National Labor Relations Board (NLRB) was one of a very few federal labor agencies that didn’t require employers to post a general notice of employee rights in the workplace. Yet, on December 22, 2010, the NLRB decided it would change its 75-year history. On that date, the NLRB proposed a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post notices informing employees of their rights under the NLRA.

After the required notice and comment process, the NLRB published its final rule on August 30, 2011. After a number of extensions, the rule is currently set to take effect April 30, 2012.  However, the rule, and its posting requirements, may be delayed again because of an ongoing court battle.

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By Mark I. Schickman

California employers have been waiting since October 2008 for the California Supreme Court to issue its ruling in the Brinker Restaurant case, clarifying whether employers must “ensure” that employees take meal and rest breaks or simply “provide” those breaks. Today, the court unanimously served up a major victory to California employers with its decision.

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by Mark M. Schorr

As of March 28, 2012, a new protected category has been created under the Omaha Municipal Ordinance enforced by Omaha’s Human Rights and Relations Department. Omaha residents who are lesbian, gay, bisexual, and transgender are now protected from discrimination in the same way that sex, race, national origin, age, marital status, disability, etc., are protected categories under Nebraska and federal law.

The controversial ordinance was the subject of heated public debate and a lengthy public hearing before the Omaha City Council, which passed it 4-3 on a straight party-line vote (all Democrats voted for, and all Republicans against). Mayor Jim Suttle signed the ordinance on March 15. Although he invited all council members to the public signing, only Councilman Ben Gray, the legislation’s main proponent, was in attendance.

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by G. Thomas Harper

Governor Rick Scott has signed into law controversial House Bill (HB) 1205, which will change the way state employers deal with drug testing their employees. What follows is a quick update on how HB 1205 will affect employers when it goes into effect at the beginning of July.

In addition to applicant testing and “reasonable suspicion,” “fitness for duty,” and rehab follow-up testing, state of Florida departments and agencies now will be able to call on random testing once every three months as a new enforcement tool. The pool of employees to be tested must be compiled by an independent third party to ensure it is random, random tests can’t be done on more than 10 percent of an employer’s workforce per test, and they can’t be done more than once every three months. Another thing to watch for is that it may become easier for employers to obtain authorization to conduct “reasonable suspicion” testing — but the language isn’t very clear, so we will have to wait on the courts for that.

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In a 5-4 opinion delivered Tuesday, the U.S. Supreme Court held that state employers are immune from suit for damages under the self-care provisions of the Family and Medical Leave Act (FMLA).

In the case, Daniel Coleman sued his employer, the Court of Appeals of the State of Maryland, for $1.1 million in damages when he was refused sick leave to attend to a documented medical condition. The lower courts dismissed Coleman’s case, holding that the claim was barred by the Eleventh Amendment’s grant of sovereign immunity to states, which prevents states from being sued for monetary damages.

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by Molly DiBianca and Michael P. Stafford

Delaware’s medical marijuana program has been extinguished. According to the Delaware News Journal, Governor Jack Markell “has suspended the regulation-writing and licensing process for medical marijuana dispensaries — effectively killing the program.” The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.

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By Mark I. Schickman

The legal status of gay marriage in California has been a rollercoaster ride. First, the California Supreme Court held that a ban on gay marriage was unconstitutional. Then California passed Proposition 8, writing a ban on gay marriage into the California Constitution — and the California Supreme Court bowed to that new statement of California’s popular will, declaring Proposition 8 constitutional.

The issue then was put to the federal court, and Chief District Court Judge Vaughn Walker struck Proposition 8 down as unconstitutional. Prop 8 supporters then attacked the ruling as legally flawed and challenged Judge Walker, who is gay, for not recusing himself.

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A reminder for New York employers: If you haven’t already completed the Notice of Wage Payment forms required under the New York Wage Theft Prevention Act (WTPA), time is running out. The law, which took effect on April 9, 2011, requires covered employers to give written notice of wage rates to all new hires at the time of hire and annually to all employees by February 1. This year is the first year in which the annual notice has been required.

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The Equal Employment Opportunity Commission (EEOC) is seeking comment through February 1 on a four-year strategic plan, and it’s important for employers to know what that plan means to them.

The draft of the 2012-2016 plan calls for the agency to:

• fight employment discrimination through law enforcement;
• prevent discrimination through education and outreach; and
• improve delivery of services to the public. read more…