Employment Law Navigator

Monday, March 28, 2016

That is SO last week

Last week, the EEOC announced that it is expanding its use of its electronic charge status system to allow the public “information online and on demand.” The system allows charging parties to check the status of their charges online and review the employer’s position statement during the investigation. It also provides a portal for employers to upload information requested by the agency. The “Digital Charge System” went live for all 53 of the EEOC’s offices on January 1, 2016.

Discrimination

The Guardian covered a recent study that found “resume whitening” doubled callbacks for job candidates.
Mavis Discount Tire will pay $2.1 million to settle an EEOC class action which claimed that the tire retailer discriminated on the basis of sex.
A controversial new North Carolina law that prohibits local governments from passing their own anti-discrimination laws is now the subject of lawsuits.

Technology

Fortune asked if software is better than humans at managing people.
Ben Eubanks described the problem with HR technology integration.
Meghan M. Biro gave an overview of what’s next in HR technology.
McKinsey argued that a “digital labor platform” can increase a company’s profits.

In other developments:

The U.S. Supreme Court approved the use of statistical sampling in wage and hour class action litigation.
Jon Hyman broke down the U.S. Department’s new “persuader rule” that will require organizations to disclose any outside consultants and law firms they engage regarding employee organizing and concerted activities.
The Eighth Circuit Court of Appeals upheld a NLRB decision that found a Jimmy John’s franchisee engaged in an unfair labor practice when it terminated employees for protesting the sandwich maker’s lack of sick leave.

Thursday, March 24, 2016

Social Media-Based Screening and FCRA

By now, most employers are familiar with the requirements of the Fair Credit Reporting Act (FCRA) and understand how it impacts background checks and applicant screening. In short, FCRA says that if an employer uses a third party to conduct a background check or assemble background information about a job applicant or employee, certain requirements kick in. The applicant or employee must consent to the background check in writing, must be provided with several specific notices during the process, and must be given an opportunity to dispute the information obtained. Failure to comply with FCRA can lead to legal liability, so employers need to make sure that their own processes (and those of the third party they use to do background checks) are compliant.

So where does social media come into this? Many employers routinely access social media to do their own applicant screening, and there is nothing inherently unlawful about that. If anti-discrimination laws are followed – that is, if applicants of a particular ethnicity, gender, age, or other protected characteristic are not singled out for screening, and if the employer does not consider protected characteristics in making employment decisions - the use of social media-based screening is legally acceptable and may be a helpful hiring tool. When social media-based screening of applicants is done by a third party, however, the requirements of FCRA, as well as the requirements of anti-discrimination law, must be considered.

Regardless of what it’s called or how it’s obtained, background information obtained from a third party must be handled with care. The EEOC and the Federal Trade Commission (FTC) have both concluded that “cyber screening,” social media “scraping,” and information obtained from data aggregators and social media data collection companies are subject to the requirements of FCRA. That means that the collectors of such data must take reasonable steps to ensure the accuracy and relevance of the information they provide, and must require their employer-customers to certify that the information won’t be used in a manner that violates EEO laws. Both data collectors and employers must keep the data secure and dispose of it properly when it’s no longer needed. And for employers, there is no difference between information obtained from social media and information obtained through any other sort of background check by a third party. FCRA requirements and restrictions apply.

Employers who use or plan to use an internet or social media-based background screening service to identify prospective hires or check out applicants’ backgrounds should understand their FCRA obligations, and should keep the following in mind:

Providers of social-media based data should be able to demonstrate their understanding of and compliance with FCRA.
Any claim by a data collector or other provider that it is exempt from FCRA, and any claim that data provided doesn’t constitute a FCRA-controlled background check, should be treated with utmost skepticism.
Before social media-based information from a third party is accepted or considered, employers should be confident of their internal practices and ready to comply with FCRA’s complicated notice provisions.

There is more than FCRA to think about when using social-media based information, of course. The EEO laws noted above, including state and local laws, must be considered. Data security and the protection of personally identifiable information are important. But we find that FCRA is less known and less well understood than other legal obligations, and we know that new methods and providers of social media-based background checks are popping up all the time. We encourage employers to stay aware of the changing landscape and avoid its legal pitfalls.

Posted by Judy Langevin

Monday, March 21, 2016

That is SO last week

Last week at the SHRM Legislative Conference, EEOC Chair Jenny Yang both praised and cautioned employers in talking about HR technology. In particular, Chair Yang said that some technology can reduce bias in the workplace, while other forms could lead to unlawful discrimination. She stated that the EEOC’s goal “…is to ensure that employment practices are designed to use data in a thoughtful way, to promote equal opportunity, and not exclude individuals for reasons that are not job-related and may be based on protected characteristics.”

Discrimination

A male assistant manager failed to present an actionable sexual harassment claim when he failed to report the alleged misconduct to HR.
The Guardian covered a recent Microsoft study that showed the impact of mothers in the workplace.
The EEOC held a public hearing on the new EEO-1 form that will collect pay data.

Technology

Harvard Business Review asked how many jobs could be automated.
The National Labor Relations Board held that Chipotle’s demand that an employee delete negative comments from his Twitter feed was an unfair labor practice.
Business Insider used a cool chart to explain why cybersecurity is so important.
Meghan M. Biro explained what HR technology can learn from the popular game Minecraft.
Forbes India gave some alternatives to the annual performance review, such as the use of employee monitoring tools and big data.
The Pew Research Center published public predictions of the future of workplace automation.

In other developments:

Cereal maker Kellogg, launched a probe after video surfaced of a plant employee urinating on the assembly line.
The Department of Labor sent its FLSA overtime rules to the Office of Management and Budget, signaling that its new rules could be in place by the end of the summer.
Robin Shea explained what employers can expect if Judge Merrick Garland becomes a Supreme Court Justice.
The Second Circuit Court of Appeals held that an HR Director could be held personally liable under the FMLA.
Fast Company opined on what the upcoming Department of Labor survey of freelance workers will mean.
In the case about McDonald’s franchise business model, top executives testified about corporate’s role in day-to-day operations.

Thursday, March 17, 2016

Mixing Employee Surveillance and Big Data

No doubt, this is big data’s time. Businesses have begun to make decisions based on data and data analytics, rather than relying on gut instincts or business acumen. Data-driven business has proven to be successful, but we wonder about some of the data sources that are being used.

One source that concerns us is employee surveillance data. Using the Internet of Things and the many available forms of employee badge technology, employers are able to gather all sorts of information about employees, including records of employee location and activity, recordings of employee conversations, and even employee engagement. Using what’s known as an API, employers can then combine the surveillance data with other business data, including information on performance and productivity. The combined information can be analyzed to reveal insights and even make predictions, including the ideal time and place for meetings or who should be promoted. Employers can add traditional human resources technology data from HR systems (like payroll and applicant tracking systems) into the mix to add to the data that’s analyzed.

So why does this concern us worry-wart employment attorneys? Many reasons, including these:

The NLRB doesn’t love employee surveillance. The NLRB handed employers a victory last year when it ruled that it was not necessary to bargain with the union before using GPS to surveil an employee the company believed was stealing time. Such victories are rare, however. In both unionized and non-union settings, the NLRB may find an employer engaged in an unfair labor practice by using employee monitoring devices.
Employees don’t like “Big Brother.” The Pew Research Center has found that even when surveillance is used for safety, only 54 percent of employees found it acceptable. When surveillance tracks their movements and conversations for other reasons, employees are even more wary. Just ask the reporters at The Daily Telegraph.
Privacy, privacy, privacy. We’ve covered this before, but monitoring employees’ private conversations and non-work activity – deliberately or accidentally - can put an employer in hot water. Whether they have a legal claim or not, most employees believe they have some expectation of privacy at work.

When employers mix surveillance and performance data, another set of issues arises. These include access to the data, data integrity, and the potential for disparate impact if data is used as the basis for employment decisions. Suppose, for example, that an employer uses the Hitachi Business Microscope to measure employee happiness and team contributions, and combines that data with sales metrics, using a data visualization tool or an algorithm.

Once analyzed, this data may allow the employer to predict who the next rockstar employee will be, or to spot patterns in productivity that impact the bottom line. The employer will be tempted to act accordingly, basing its hiring, promotion, compensation, and termination decisions on what the data predicts. But what if the results are unreliable, inconsistent, or support a result that has a disparate impact on women or minorities? If employees believe themselves to be the victims of unfair or unlawful treatment, employer liability will not be avoided by claiming “the data made us do it.”

This week, EEOC Chair Jenny Yang warned employers about the use of technology. Specifically, Chair Yang commented that employers must use their data and technology in a “thoughtful way.” We couldn’t agree more.

Zelle LLP is a proud sponsor of MinneAnalytics’ People Analytics Conference (PACON) that will be held March 24, 2016 at the University of St. Thomas.

Posted by Kate Bischoff

Monday, March 14, 2016

That is SO last week

March is Women’s History Month, and last week, strides in hiring women, efforts to reduce the gender wage gap, and attempts to increase diversity in the tech industry were in the news. Salesforce, in particular, explained its process for eliminating the gender wage gap among its 17,000 employees. After evaluating positions and comparing salaries, Salesforce ultimately raised the salaries of six percent of its workforce at a cost of $3 million dollars.

Discrimination

The failure to hire a qualified male janitor resulted in an EEOC gender discrimination suit.
HR Xperts published a new infographic that describes the inequities between maternity and paternity leave.
A Minnesota-based medical device company settled an EEOC gender discrimination suit for $1 million after the agency uncovered the president of the company’s statement that “women in sales is a 100% fail.”

Technology

Bernard Marr wrote about the 21 scariest things big data knows about you, including when you’ll quit your job.
Home Depot disclosed that it will pay $19.5 million to resolve lawsuits stemming from a data breach. In addition, the home improvement giant paid $161 million in costs associated with the breach.
Mike C. West argued that embedded analytics – the people analytics that comes with HR technology – is not the future.
Bloomberg BNA covered cyberslacking, employee monitoring, and March Madness.
Google’s Eric Schmidt admitted that artificial intelligence could take some jobs, but said that’s okay.
UnitedHealthCare announced a plan to incorporate wearable devices into employer health plans.

In other developments:

The Harvard Business Review gave tips on what to do when an employee learns a co-worker makes more money.
Former employees of an iron ore mine sued the mine’s executives for failure to pay overtime.

Thursday, March 10, 2016

A Job Ad Doesn’t Need to Be a Job Description

Ah, job descriptions. Boring lists of knowledge, skills, abilities, duties, and education and experience requirements – a description of the “essential functions” of a job. Not compelling reading at the best of times, and for many positions, job descriptions quickly become out of date (or even irrelevant to the actual job) because keeping them updated falls to the bottom of HR’s to-do list. When it’s time to recruit, however, everything changes. Recruiters and hiring managers frantically revise and update job descriptions for use during the recruitment process. Although it’s natural to wait for a recruiting push, in a perfect world the description would be updated much more frequently.

It’s always good to keep a job description current and complete, but remember that a job description isn’t a job ad. Yes, the description sets out all necessary information to explain a job, but it doesn’t serve the same function as an ad. A job ad is a marketing tool that should encourage people to apply – in other words, an advertisement.

Just as there are certain things we want to see in your job descriptions, employment lawyers have a wish list of things they’d like to see (and not see) in a job ad:

1. Complete and accurate information. Effective marketing is important in job ads, but ads should never mislead. A clear summary of the job, presented in a positive and interesting way, should be the goal of every ad. Overselling can lead to misunderstandings that might come back to haunt the employer.

2. Inclusive language. Unconscious bias is a hot topic right now, as it should be. Job ads can be rife with unconscious bias that discourages women, applicants of color, and other diverse candidates from applying for jobs. New tools, including a gender decoder, are available to help employers reduce the unconscious bias reflected in a job ad (or job description).

3. ADA compliance. For employers with more than 15 employees subject to the Americans with Disabilities Act, job ads must either explain the essential functions of a position or indicate where applicants can get this information. Essential functions define a job and the failure to explain them can set an employer up for a lawsuit. If constant lifting of 40-pound boxes is required, for example, the job ad, or a source of information linked to the job ad, should clearly say so. Essential requirements should never be hidden from applicants. In addition, qualified applicants with disabilities must have an opportunity to request a reasonable accommodation that will allow them to perform the essential functions of the job.

4. A way for applicants to learn more. A job ad can be short and colorful, but it should provide ways for an interested reader to get more information. A link to the job description, a telephone number to call to reach a recruiter, and an email address for the hiring manager are good additions to a job ad. Informed applicants are more likely to have realistic expectations about the job – and about their chances of being hired. Realistic expectations mean fewer disappointed applicants and fewer opportunities for candidates to infer unfair treatment or unlawful motives.

As employers struggle to find good talent, they need to get the attention of the right candidates. A great job ad can be a terrific way to do that, but a misleading or non-compliant job ad can create liability. By having two separate and carefully prepared job ads and job descriptions, employers can minimize their legal risks while reaching top candidates and encouraging them to apply.

Posted by Kate Bischoff

Monday, March 7, 2016

That is SO last week

Last week, Vitality Group, a health services firm, announced a new program designed to lower healthcare costs for its clients. Employees of a handful of companies, including John Hancock, Amgen, and others, will get a chance to have an Apple Watch for just $25 – but there’s a catch. The employees will be required to meet fitness goals over a two-year period or pay full price for the smartwatch. Vitality’s parent company in South Africa has had the program for some time, and claims that the 17,000 participants in the program are more physically active. It’s unclear from Vitality’s announcement if the participating employers will be able to access the wellness data, or if only Vitality will receive it. We’ve got a few concerns.

Discrimination

The EEOC launched two lawsuits alleging that discrimination based on sexual orientation is sex discrimination prohibited by Title VII.
Yelp received another open letter from an employee, this time from a single mother who alleged she was treated differently because she's a parent.
PerformanceICreate asked HR professionals to step up on diversity issues, moving from defense to offense.

Technology

Facebook announced plans to expand its Facebook at Work communications platform.
TalentCulture gave tips on how to create an HR technology strategy.
Forbes explained the eight HR analytics every manager should know.
The New York Times covered a new app designed for day laborers to track the wages they are owed.

In other developments:

Employers listed on Fortune’s 100 Best Companies to Work For focused on fairness and equity in 2015.
HR Bartender discussed whether an employee should resign or get fired.
Inc. cautioned employers to beware of the consequences of a $15 minimum wage.
Former iron ore mine employees filed a lawsuit against the mine’s executives alleging failure to pay overtime.