Thursday, March 27, 2014

EEOC and FTC Team Up

The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) have teamed up to bring us a handy-dandy guide to what employers need to know about background checks. I know there are many people who may say "What?? What does the FTC have to do with criminal background checks done by employers?" To the uninitiated, it does seem like a strange pairing. However, the FTC controls the usage of "consumer reports", and that includes criminal background reports as well as credit reports as regulated under the Fair Credit Reporting Act.

Anytime you consider the background information of an applicant or employee in making employment decisions, you must comply with laws that protect applicants and employees from discrimination; that’s where the EEOC comes in. This includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (keep in mind that states and localities have added additional categories such as sexual orientation, gender identity and family status).

If you use an outside company in the business of compiling background information, then you also must comply with the Fair Credit Reporting Act (FCRA).

So, here’s the short version of the interplay of laws:


Employment decisions (whether related to hiring, promotion, demotion, training, firing, etc.) cannot be made based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

If you’re using a company in the business of compiling background information

Inform the applicant or employee you may use the information for decisions about their employment. This notice must be in writing and in a stand-alone format (can't be in an employment application).
  • If you are asking a company to provide an "investigative report" (a report based on personal interviews relating to a person's character, general reputation, personal characteristics, and lifestyle) you must also inform the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Always get the applicant's or employee's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and received their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • won't discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.
Once you have the information in hand, it can’t be used to discriminate in violation of equal opportunity laws. The same standards must be applied to everyone; for example, you cannot reject applicants of a particular race (or age, religion, etc.) with certain financial histories or criminal records, if you wouldn’t reject applicants of another race (or age, religion, etc.). Beware of standards that may have a "disparate impact" on those of a certain race, for instance. Only use standards that are job related and consistent with business practice.

If you take an "adverse action" (deciding not to hire, or terminating an employee) based on information you obtained in the background check from a company in the business of compiling background information, the FCRA requires additional actions:

Before you take an adverse employment action, you must give the applicant or employee:

  • a notice that includes a copy of the report you relied on to make your decision; and
  • a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act," which you should have received from the company that sold you the report.

Giving the person the notice in advance, allows her an opportunity to review the report and explain any negative information.

After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
  • that he or she was rejected because of information in the report;
  • the name, address, and phone number of the company that sold the report;
  • that the company selling the report didn't make the hiring decision, and can't give specific reasons for it; and
  • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
    When I give trainings or other presentations to people about the business of HR, I explain the many laws and regulations with which businesses must comply concerning the employment relationship. Explaining the cross-over of several of those laws and regulations is always interesting and almost always gets people’s attention and helps them understand that HR is not all about party and event planning. Maybe one day soon I’ll write about how the Family and Medical Leave Act, Workers’ Compensation and the Americans with Disabilities Act all come together in one wonderful and confusing spider web of joy. Or…………….maybe not.


    Source: What Employers Need to Know

    Thursday, March 20, 2014

    EEOC Explains Rights and Responsibilities Concerning Religious Garb and Grooming in the Workplace

    Recently the EEOC released a fact sheet and a rather helpful Q&A on accommodating religious dress and grooming practices. See it here.

    There have been some rather widely reported cases where a business has fun afoul of discrimination laws concerning religious beliefs and practices (Abercrombie and Fitch being one of them). Regardless of how blatant the situation at Abercrombie seemed, it’s not always that easy for an employer to determine if a) the religious belief or practice is one that’s protected, or b) if their dress/grooming policy may be discriminatory under the law. The newly released guidance should be of some help, since it gives several real-life examples.

    In most cases, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to allow applicants and employees to follow religious dress and grooming practices. This may include religious head wear (hijab, turban) or wearing the hair long, wearing a beard, etc. It also applies to religious prohibitions against wearing certain types of clothing (clothing that bares the arms or legs) and so on.

    Title VII also prohibits disparate treatment based on religious belief or practice, or the absence of belief (yes, you have a right to be free from religion also!). Segregation in the workplace based on religion, religious dress and/or grooming practices is also prohibited. So for instance, you can’t assign an employee to a non-customer facing position because your customers don’t agree with the employee’s beliefs or practices, or because you think your customers might have an issue with it. You also can’t fire, or refuse to hire based on these factors, either.

    Once aware that an accommodation is needed for a sincerely held religious belief, an employer must make exceptions to its dress and grooming policies/preferences unless doing so would pose an undue hardship. Concerning dress and/or grooming, few claims of undue hardship will fly, unless it can be shown to be legitimately related to safety, security or health concerns.

    Here are some of the examples listed in the EEOC’s user-friendly guidance (these come from actual EEOC cases).

    Employment Decision Based on Customer Preference
    Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

    Exception to Uniform Policy as a Religious Accommodation
    Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members' identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth's sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.

    Long Hair
    David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair "short and neat." When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.

    Co-Worker Harassment
    XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like "diaper head," "bag head," and "the local terrorists," and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.

    Head Coverings That Pose Security Concerns
    A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual's job, the particular garb at issue, and the available accommodations. For example, if an individual's religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.

    Thursday, March 13, 2014

    Obama Moves to Change FLSA Rules on Overtime

    And how the media plays that tune…..

    The business world (including HR) is all abuzz over President Obama’s latest effort to "bridge the gap" between the rich and the rest of us (his goal) and to continue the fight against what he says is a crisis of economic inequality in the country. He is seeking to have the Fair Labor Standards Act amended to make more jobs eligible for overtime pay. This article from the New York Times is typical of the media coverage surrounding this news: Obama Will Seek Broad Expansion of Overtime Pay.

    If you’ve read this article, or others that quote the same sources, and pretty much say the same thing, you might not realize that what is presented as fact, is not factual – at all. This is the type of thing that sets my hair on fire. The media like to make headlines and get people to buy their papers, read their website and spread their word all over social media, in order to widen their audience, and therefore increase their profits. The only problem with this is that they often miss the mark concerning truth and fair representation of the few facts they do sprinkle throughout their articles. And, we all might ask, why haven’t any of these journalists done any (easy) research or investigation to ensure what they’re printing is accurate? Because, in this case, there are lots of inaccuracies and misconceptions concerning the current law and regulations covering which positions are exempt from overtime requirements and which are not exempt.

    The NY Times article states that "Under current federal regulations, workers who are deemed executive, administrative or professional employees can be denied overtime pay under a so-called white-collar exemption." First, I question the use of the word "denied", there’s a lot of words like denied and blocked; it’s just a bit inflammatory. The law allows these types of positions to be exempt from overtime requirements due to the nature of the job, the decision making and discretion involved in those jobs, and other considerations. The bottom limit on the rate of pay for these exemptions is but ONE of several considerations. (By the way, the labels "Executive", "Administrative" and "Professional" come from the Department of Labor.) People who hold positions that are exempt from overtime requirements are paid for the job they do, not for the number of hours they work. There may be weeks where someone works 50 hours, but there may also be weeks where they work 30 hours – they receive the same pay either way – hence being paid for the job, not how long it takes them to do the job.

    The article goes on to say "Currently, employers are prohibited from denying time-and-a-half overtime pay to any salaried worker who makes less than $455 per week. President Obama’s directive would significantly increase that salary level." The salary test under the FLSA regulations is simply one of many used to determine if a position is eligible to be exempted from overtime regulations; it is by far not the only one, and not even the most important one. This directive would seek to change some of those rules, as well. However, the way this article presents one of the rules – which considers what is the primary responsibility of the position under the executive, administrative or professional exemptions – implies an employer can exempt a position even when the duties are primarily non-exempt in nature. The article quotes Ross Eisenbrey, vice president of the Economic Policy Institute, a liberal research organization in Washington as saying "Under current rules, it literally means that you can spend 95 percent of the time sweeping floors and stocking shelves, and if you’re responsible for supervising people 5 percent of the time, you can then be considered executive and be exempt." If the author did a simple Google search he would find the rules on the Department of Labor’s website. In this case, the DOL’s FLSA Advisor gives the following guidance in determining if a position qualifies for an executive exemption:
    Primary duty means the principal, main, major or most important duty that the employee performs. The determination of an employee's primary duty must be based on all of the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. While time is not the sole test, as a guideline, an employee who spends more than 50 percent of his or her time performing a specific activity can generally be said to have that specific activity as his or her primary duty. If the employee spends less than 50 percent of his or her time performing his or her major or most important duty, the employee may still meet the primary duty requirement if other factors support that conclusion. Please review the definition of primary duty for further information regarding this requirement.
    Management generally includes activities such as: supervising other employees of the employer; interviewing, selecting and training employees; setting and adjusting their pay rates and work hours; directing their work; conducting employee performance appraisals; handling employee complaints and grievances; and disciplining employees. It also includes other functions, such as planning the work; determining the merchandise to be bought, stocked and sold; planning and controlling the budget; and monitoring or implementing legal compliance measures.
    Recognized department or subdivision refers to a unit of the business enterprise that has a permanent status and a continuing function as opposed to a mere collection of employees assigned from time to time to a specific job or series of jobs without permanent status as a recognized unit with a continuing function in the employer's organization. Please review the definition of enterprise or recognized subdivision for further information regarding this requirement.
    Such a job as described would most likely not qualify under the Administrative or certainly not the Professional exemptions, either. Here is a DOL Fact Sheet on the Administrative exemption (it also contains links to the Fact Sheets for the other allowed exemptions) DOL Administrative Exemption Fact Sheet. All of this clearly shows that the statement in this article is misleading at best. So, that worker who’s sweeping floors and stocking shelves 95% of the time sure as heck is not exercising discretion and independent judgment with respect to matters of significance for the business. Nowhere does it say, or imply, that the exemption would apply for any position only performing 5% of the duties necessary to satisfy the requirements. But, I guess that sounded good to make their point. Too bad it’s not accurate.

    Another aspect that is problematic about such efforts is that they focus on the individual performing the job. The Obama administration’s efforts have been all about raising the income of more people, and changing laws to make that happen. However, the DOL clearly reminds us that in this case, it is the specifics of the job itself, not the person performing the job, that determine if an exemption from overtime applies. A similar argument can be made in regard to the minimum wage debate. A job pays minimum wage because the job itself requires minimum skills, knowledge and abilities. It is not a commentary on the person holding the job. Someone could have a minimum wage job for a very long time (and probably get some raises), but the job is still a minimum wage job and will not increase much in its basic value over time. On the other hand, the person would hopefully gain skills and experience over time, and would then be able to secure a higher value/higher paying job. Raising the minimum wage as a way to "help" people simply results in overvaluing such jobs and does little to truly help those very people. A more effective way to help them would be to find ways to allow them to gain more skills, knowledge and abilities so they are able to secure jobs with higher pay, rather than to artificially alter the environment, to the detriment of our economy, the businesses that provide the jobs, and the very people these misdirected efforts are intended to help.

    Workplace Drug Screening

    Facts and Fun

    Workplace drug screening (pre-employment, random, post-accident, reasonable suspicion) has been part of drug-free workplace policies and programs for years. Such testing is undeniably useful in maintaining a safe and productive workforce. The simple fact that a business conducts such testing will keep some drug users from ever applying. Workers’ comp and other insurance rates are often discounted for businesses that have comprehensive drug free programs. Many employees are even appreciative knowing they will not suffer the potential consequences of a co-worker under the influence.

    Having said all that, there are some who believe that the risk of a false positive screen result is too likely and therefore unfair to employees. However, procedures and tests used are such that false positives are quite rare. Mandatory Guidelines for Federal Workplace Drug Testing (also called SAMHSA’s guidelines) are the guidelines used by federal workplaces, federal contractors, and private employers who are not necessarily required to abide by these regulations. They also identify the five substances tested for in drug-testing programs and require the use of drug labs certified by SAMHSA.

    The most common method of drug testing is urinalysis. An employee or applicant provides a sample to be tested.  Often, precautions are taken, such as putting blue dye in the toilet and turning off the water supply, to prevent adulteration or substitution of specimens so that collection can be completed in privacy without any direct visual observation by another person.  However, as you’ll see later in this post, direct observation has become more and more necessary to prevent cheating.

    Under SAMHSA’s guidelines, once a sample is provided, it is sent to a certified laboratory.  The accuracy of drug tests done by certified laboratories is very high, and this certification applies to the five substances tested for in Federal drug-testing programs and alcohol.

    There are certain procedures required by SAMHSA’s guidelines to ensure accuracy and validity of the testing process:

    • Chain of Custody: A chain-of-custody form is used to document the handling and storage of a sample from the time it is collected until the time it is tested.  It links an individual to his or her sample and is written proof of everything that happens to the specimen at the collection site, in transit, and in the laboratory.

    • Initial Screen: The first analysis done on a sample is called an initial screen.  This one test alone is not always accurate or reliable; there is a possibility of a false positive.  So, in the event that the initial screen is positive, a second confirmatory test is done.

    • Confirmation Test:  A second, confirmation test (by gas chromatography/mass spectrometry or GC/MS) is highly accurate and provides specificity to help rule out any false positives from the initial screen.  For a test result to be reported as positive, the initial screen and confirmation test results must agree. 

    • Split Sample:  A split sample is created when an initial urine sample is split into two.  One sample is used for the initial screen and, if positive, the second sample is used for the confirmation test.  If there is a positive result, the individual being tested may request the confirmation test be done at a different laboratory. 
    In the event that the initial screen and confirmation test are both positive, the Medical Review Officer (MRO), a licensed medical doctor who has special training in the area of substance abuse, reviews the results, makes sure the chain-of-custody procedures were followed, and contacts the individual to make sure there are no medical or other reasons for the result.  It is only at this point that the MRO may report a positive test result to the employer.  Certain medications can sometimes cause a positive result.  If this is the case, and a doctor prescribed the medicine and the employee used it in the proper amount, the test is reported as negative. These processes combined will prevent all but a very few false positives.

    There are any number of internet sites that warn that ingesting certain common foods or taking OTC meds will result in a false positive. This is highly unlikely. For example, poppy seeds and dextromethorphan have been reported to lead to a false positive result for opiates, and decongestants (ephedrine) have been implicated in causing false positives for amphetamines. The body metabolizes codeine to morphine and both substances may be found upon testing. On the other hand, if benzoylecgonine, the main metabolite of cocaine is detected, the person cannot claim a false positive due to Novocaine administration, or any other "-canine" drug. Benzoylecgonine is only found in nature as a metabolite of cocaine, and there would no other valid reason for it to be present in a drug screen.  As previously mentioned, confirmatory testing with GC-MS will identify individual drugs or metabolites in a sample, and almost eliminate the chance for a false positive result.

    The argument of inhalation of "passive" smoke from being in a room with people smoking marijuana is also not valid, as the cut-off concentrations for lab analysis are set well above what would occur for passive inhalation.

    But still, employees or applicants busted for a positive drug screen still try to snow us (no pun intended), or try to beat the test. People continue to be creative. I’ve collected several examples from colleagues, added a few of my own favorites, and some that anyone can find with a simple Google search. I’ve saved you some time by listing them here! Enjoy.

    • Employee picked for a random. Borrowed a sample from a "buddy" and heated it up in the lunchroom microwave. (Ewwww. Just ewwww.)
    • Applicant said he wouldn't pass the test because he was an undercover agent for the FBI, and "sometimes you gotta smoke a little with 'em so they believe ya." He was told they didn't care if he was moonlighting but if he couldn't pass the drug test, he wouldn’t be hired. (Creative, but just not gonna fly.)
    • Guy had a witnessed test, and was using an take the test. (Basically a fake so it looked like he was "going" and it held the sample close to his body to hopefully preserve heat.) His mistake was that he used a "device" made for a different race. (Ever heard of the "whizzinator"? Jeez, are ya kidding me??!)
    • It was the cookies I ate at a party; I think it was medical marijuana.
    • I buy hemp oil and make salad dressing with it. (Yeah, check the ingredients list, it doesn’t contain THC.)
    • I ate a bunch of poppy seed muffins.
    • I thought I would be positive for pot, not meth! (Think before you speak much?)
    • I got it in Canada and it’s legal there. (But not here, right?)
    • All of my friends were smoking in a small car; it must be second hand smoke.
    • I have to light my wife’s joints for her because she uses medical marijuana and she is too sick to do it herself.
    • Someone must have put something in my drink; I swear I would never use drugs.
    • One post-accident drug screen, performed by a lab, came back "not consistent with human urine." (I wonder what non-human donated this sample?)
    • For those of you who haven’t taken a class in Urine Test Cheating 101, some people put "clean" urine in condoms and store them near their crotch to keep it warm.
    Well, after we get over the frustration at dealing with someone who comes to work drugged or drunk, at least we can have a chuckle or two at their excuses. 

    Thursday, March 6, 2014

    Managing Misconduct in Emails

    More than 60 million Americans have e-mail and/or Internet access at work. Recent surveys and studies show that 70 percent of workers admitted to viewing or sending sexually explicit e-mail at work (this would include jokes and cartoons with sexual content). Most traffic to Internet pornographic sites occurs during regular business hours, most probably because Internet connections are usually faster in the workplace than at home.

    Companies estimate that more than 1 in every 5 outgoing e-mails contains content that poses a legal, financial or regulatory risk. Twenty percent of companies have disciplined an employee for violating email, blog or message board policies and 10 percent have fired an employee for such an infraction. More than 10 percent of public companies investigated the exposure of material financial information via a blog or message board or other social media. Nearly a quarter of businesses have had e-mail subpoenaed by courts. Fifteen percent of companies have faced lawsuits based on employee e-mail to include claims of sexual or racial harassment.
    For all these reasons, and more, email can sometimes qualify as HR’s biggest headaches.  

    Electronic messaging can be one more opportunity for employees and managers to bring risk to their organizations – and sometimes themselves. It is more important than ever to have a solid internet and email usage policy, and to be consistent in applying it.

    Email tends to be a pretty informal communications medium. The anonymity of being behind the keyboard can embolden people to say things they wouldn’t consider saying face to face.  Additionally, it’s often difficult to read tone in an email, so even a message not intended to be harsh or disrespectful can come off that way.

    Document! Email does this for you. A written record is compiled each time an email is sent or received. Supervisors should save anything they find questionable. If an issue comes up later, having copies of those emails could prevent a costly legal headache. Supervisors should also remember that any electronic communication is discoverable in a legal action and deleting it from your desktop doesn’t really delete it forever!

    Treat email misconduct just like other types of misconduct.  Saying something offensive to a co-worker in the cafeteria and saying something offensive via email is no different. Supervisors need to address unacceptable behavior specifically with the employee and then follow any usual disciplinary policy they would with other unacceptable conduct. Don’t let the fact that the email conduct is not "in person" minimize the effect or the importance of the behavior.

    Ensure employees know and understand what’s professional and what’s not.  Consider providing guidelines that make clear any standards for style of communication you want your business to present. Many companies have templates for signatures and such in order to consistently present their brand. This can also prevent the stray tag line that may not be representative of your corporate culture. You may want to include such things as steering clear of humor (at least with any outside contacts), which often doesn’t translate well in an email; go easy on exclamation points, caps, italics, etc., and consider waiting 20 minutes before sending any email that was written in anger or agitation.

    Email policies should cover several different areas:

    • Employees should be prohibited from sending or posting messages that contain objectionable or abusive language, that defame or libel others, or could be or are discriminatory or harassing, or that infringe on privacy rights of others.
    • Employees should be prohibited from viewing, downloading, copying, sending, posting or accessing information that is illegal, sexually explicit or obscene.
    • Employees should be prohibited from engaging in acts that damage or interfere with the company’s computer or network systems.
    • Employees should be prohibited from using the Internet or e-mail to solicit others, including for any commercial or charitable purposes. There should also be a prohibition against using the Internet or e-mail to proselytize for religion, campaign for or against political candidate or issues, etc.
    • Employees should be required to comply with all laws, regulations and rules including intellectual property and company confidentiality.
    • Employees should be required to maintain the integrity of all passwords or other means of access to the company’s computer systems and networks, and acknowledge that the employer is the holder of all passwords, etc.
    • Employees should understand they are liable for all transactions using their password and identification numbers.
    • Employees should be required to maintain and not deactivate company installed virus or spyware protection or other software, including browsers.
    • Employers should be informed and understand that the employer may monitor and/or track employee internet and email use.

    Bad behavior is bad behavior, whether in person, on the phone, through email or any social media format. Creating, maintaining and administering an internet and email policy are effective ways to manage the risks a digital world introduces into our organizations.