Employment Law – Small Business Solutions employee Archives - Employment Law

Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination.

When Does Workplace Caregiver Discrimination Violate US Employment Laws?

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera).

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff.

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes.

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws.

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures.

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation.

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws.

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to:

promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations.
hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan.
include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties.

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes.

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner.

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers.

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency.

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases.

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document.

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Discrimination Based on Hair?: The CROWN Act

July 5, 2022

Crown Act passes US House of Representatives

On March 18, 2022, the US house of representatives passed the CROWN ACT banning “discrimination based on an individual’s texture or style of hair.” The bill, first introduced to the house in 2021 by Representative Bonnie Watson Coleman, was passed in a vote of 235-189. It currently is being read in the US Senate.

While this is the first time the bill is getting approval at the federal level, it has already made its way into state legislation across several states in the US. In 2019, California became the first state to pass the CROWN ACT into law by a unanimous vote. Twelve other states, including New York, Washington, Nebraska, Delaware, Oregon, and Colorado, would eventually follow suit between 2019 and 2021. Here in Georgia, the CROWN ACT is not yet law.

What Is the Crown Act as Relates to Discrimination Based on Hair?

The CROWN ACT stands for Creating a Respectful and Open World for Natural Hair. According to the bill, “Routinely, people of African descent are deprived of educational and employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locks, cornrows, twists, braids, Bantu knots, or Afros.”

Black people have often faced racial discrimination across corporate America because of how they groom their natural hair. According to one study, employers perceive black women with natural hairstyles as less competent and professional (and less likely to be recommended for job interviews) than black or white women with straight hairstyles. In 2016, Sabrina Chiodo, assistant manager at Jack Astor’s Bar and Grill, sent home 20-year old Akua Agyemfra for wearing her hair in a bun (contrary to restaurant policy that all female staff wear their hair down). Elsewhere, in Louisiana, Imani Jackson lost her job at American Screening LLC within a month of wearing her natural hair in a bun instead of the wig she had worn during her interview and her first month working at the company. But it’s not only African-American women that suffer from racial discrimination because of their hair. In 2018, Andrew Johnson, a black high school wrestler, was told by a referee to cut his dreadlocks or forfeit a wrestling match. It is cases like these that the CROWN ACT seeks to address and outlaw.

What Are the Effects of the CROWN ACT on Discrimination?

The CROWN ACT prohibits racial discrimination based on a person’s hair. This discrimination is often unspoken in US workplaces but ladened in employee handbooks that specify company policy. As such, the CROWN ACT would be a significant step to enabling a more diversified and inclusive corporate America. In the wake of the CROWN ACT, more companies will adopt new policies that allow women of color to groom their natural hair the way they deem fit without discrimination. Also, before the CROWN ACT, cases of race-based hair discrimination that have made it to US courts have failed to yield substantial results. For instance, in 2014, US District Court Judge Charles R. Butler Jr dismissed a race-based hair discrimination case involving Chastity Jones and Catastrophe Management Systems. In 2016, a three-judge panel of the 11th Circuit Court of Appeals upheld the district court’s decision and further attempts to get the US Supreme Court to intervene failed to yield results.

However, if the US Senate passes the CROWN ACT into law, it would provide the necessary legal protection for victims of race-based hair discrimination, especially since there’s currently no other federal legislation in the US that protects people of color from stigmatization because of their hair.

Furthermore, since its inception in California in 2019, the CROWN ACT has created awareness and kick-started healthy conversations about racial discrimination based on a person’s hair. These conversations will only become more mainstream once the bill becomes federal law.

Conclusion

Workplace discrimination based on hair is more common than we realize for people of color. The stigma behind natural hair for black people has often deprived them of educational and employment opportunities. However, the narrative should change once the CROWN ACT becomes federal law. If you’re a black person in the US facing race-based hair discrimination at your workplace or school, hiring legal help is the best course of action to protect your rights.

Or, if you are an employer seeking to create an inclusive dress policy or dress code with specifications about hair, contact us.If you want to review your company’s policy surrounding natural hair in the wake of the CROWN ACT, our expert team of lawyers can also assist you throughout the process and ensure there are no grey areas that could get you into a potential lawsuit.

At the Law Office of Sheri Oluyemi, we have the best legal hands in US employment law to handle workplace discrimination. Reach out to us today; let’s look at your case and begin proceedings to get you justice.

How NDAs Actually Help Employers Protect Data

June 5, 2022

On May 2, 2022, the Supreme Court’s draft opinion to overturn the 1973 Roe v Wade decision and return the power to determine abortion laws to US states made its way to the public domain in a leak that sparked a widespread uproar. While most outcry surrounding the opinion draft related to its impact on women’s rights, the leak brought another significant issue into the limelight: non-disclosure agreements (NDA) and related policies. Before the leak, the US public had never had access to a draft decision on a pending case in the modern history of the SCOTUS. The released draft poses a question to corporate organizations across the US: how can they protect confidential information to prevent unauthorized disclosure? The protection of such intellectual property, data and trade secrets becomes even more crucial in the digital age, where companies store sensitive data in an online company database that is subject to cyber-attacks.

This article will discuss non-disclosure agreements (NDA) and other measures employers can take to protect information at work.

What Are Non-disclosure Agreements?

Among businesses across the globe, confidentiality is non-negotiable. Employers share trade and professional information with employees with the assurance that these details will not go beyond the office . Non-disclosure agreements are one of the ways employers guarantee that assurance. A non-disclosure agreement is a binding legal contract that seeks to maintain the confidentiality of information. As a legal contract, an NDA ensures that one or both parties named in the agreement do not share specific information with a third party at all or without prior express written approval.

Companies typically use NDAs to restrict employees from divulging trade secrets or intellectual property to competitors. However, contracting parties can also use an NDA to protect general privately-held company-related information. Typically, alongside the confidential information, NDAs also contain sanctions for breaching the contract, such as financial compensation and injunctions.

What Are the Different Types of NDAs?

There are three types of non-disclosure agreements. Here’s a quick breakdown of each of them:

1. Unilateral NDAs

These types of NDAs involve one party disclosing confidential information to another and requesting its secrecy. Typically, businesses use unilateral NDAs to protect trade secrets and competitive data. In the employment context, all NDAs are unilateral.

2. Bilateral NDAs

These NDAs involve two parties revealing sensitive information and signing an NDA to ensure neither individual divulges the sensitive details to a third party. Bilateral NDAs are a common theme in mergers and acquisitions.

3. Multilateral NDAs

These contracting confidentiality agreements involve three or more parties, with at least one of the individuals disclosing private information to the others.

What Does an NDA Contain?

There are some vital provisions that contracting parties must include in an NDA. Some of them are:

Identities of the parties involved in the contract
Broad definitions of the confidential information
The scope of the contract
The timeline of the agreement
Exclusions to the contract
Sanctions for breaching the NDA
Related clauses, such as a non-compete, non-solicitation of employees, and non-circumvention clauses
Termination of the contract

Typically, only the contract’s provider(s) can terminate an NDA. However, the contracting parties can also terminate the NDA by mutual consent or if the contract has exceeded its timeline. Also, while outlining the scope of an NDA, businesses should narrow the contract agreement to protect genuinely confidential information, as NDAs could be unenforceable if they are too broad. Furthermore, there are federal and state employment laws that determine the clauses that employers cannot include in an NDA. Corporate institutions should hire attorneys to help draft NDAs to ensure they meet state and federal regulations.

Other Measures That Can Help Businesses Protect Workplace Confidentiality

Aside from NDAs, there are several other ways employees can ensure the protection of proprietary secrets. Here are two of the most common:

Confidentiality Training and Policies

Confidentiality training should become a part of the integration processes for new employees across businesses. HR departments should train newly-recruited employees on handling and disposing of sensitive information, company policies on sharing confidential data, and the consequences of violating these regulations.

With social media becoming a crucial part of communication for us today, the use of the internet and other communication media in sharing private corporate information should also be a part of the details covered in the confidentiality training. Furthermore, the employee handbook should contain broad definitions of company privacy policies.

Create Contingency Plans in the Event of Privacy Policy Violations

First, your company should have a contingency plan for when an employee violates company confidentiality policies, or sensitive corporate information makes it to the public through any other means. The plan should be broad enough to cover all possible scenarios. Have strategies for removing the leaked information from the public domain, locating and disposing of other copies, and executing any legal action stated in your company policy against the guilty staff.

Second, aside from privacy violation contingency strategies, your company may also need an exit plan for employees. This plan involves the processes employees have to go through to submit any company data or property in their possession whenever they want to leave the company. Your exit strategy should also include steps to disable and restrict access to all employee emails, company social media accounts, and online databases.

Need NDA for Your Company? Reach Out to Our Employment Law Attorneys Today!

Finally, confidentiality violations, such as the Supreme Court draft decision leak, can ruin corporate organizations. If your company doesn’t have an NDA in its privacy policy and you’re considering drafting one or updating the terms in the current confidentiality agreement, you’ll need an attorney to help you through the process. NDAs are sensitive contracts that can become unenforceable if you don’t draft them properly. State laws can also affect confidentiality agreements. If the scope of your NDA goes beyond state regulations, it might affect its enforceability.

At the Law Office of Sheri Oluyemi, we can bring our expertise in US employment Law to tailor your NDA to meet your company’s privacy needs while staying within your state’s regulations. Our employment attorneys can also help you handle the legal sides of company privacy violations.

Request a free teleconference consultation today, and let’s begin the process of protecting your company’s confidential data.

Is Black Lives Matter a “Matter” of Concern for Federal Employers and Employees under the Hatch Act?

August 1, 2020

The Hatch Act, passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law ensures that federal programs are administered in a nonpartisan fashion. It intends to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation. Read more on the Hatch Act here.

Today, July 10, 2020, the U.S. Office of Special Counsel (OSC) issued guidance on two questions relevant to current events. In this post, we focus on the first—whether Black Lives Matter (BLM) is a partisan political organization for purposes of the Hatch Act, which prohibits federal employees from certain political activities.

The short answer is no. OSC determined that Black Lives Matter (BLM) is not a partisan political organization at this time. Thus, federal employees are free to express their support through personal expression. However, it is important to note that the phrase “at this time” potentially serves as an exception should components of the BLM Movement actively endorse or solicit support for political candidates in upcoming elections.

How does this impact federal employees who advocate for BLM?

Currently, employees are not prohibited by the Hatch Act from expressing support for, or opposition to, the BLM movement while on duty or in the workplace. However, employees should understand that this assessment is subject to a fact specific analysis where advocacy for specific political candidates may arise. For example, if on duty, an employee may not use his or her support for the BLM Movement to advocate for or against a particular candidate or political party.

How did OSC arrive at this conclusion?

In determining whether an organization serves or acts in furtherance of a partisan political purpose, OSC considers: (1) Whether the organization is affiliated with a political party or candidate; (2) Whether the organization is organized for partisan political purpose, or; (3) Whether the organization engages in engage in partisan political activity. More specifically, the OSC asks does the organization identify itself as supporting or opposing a political party or candidate? Do the contents of the organization’s charter, bylaws, mission statement, or amendments refer to a political party or candidate?

Provided there is no change in the current status of the BLM Movement or its chapters. Federal employees should not be subjected to scrutiny or disparate treatment as a result of their support or engagement in BLM activities provided they do not violate any laws or other terms of employment.

Hot Off the Press: New Overtime Rules

October 4, 2019

The Federal Labor Standards Act requires employers to pay overtime to employees who work over 40 hours in a workweek, unless the employee works in an “exempt” position. There are various classes of exempt employees, one of which is the executive, administrative and professional employees (i.e., the “white-collar” exemption). Generally, to qualify for the “white-collar” exemption, an employee:

must be paid a fixed weekly salary (the “salary basis test”), and
must primarily perform executive, administrative or professional duties in accordance with the Department of Labor regulations (the “duties test”).

Released on September 24, 2019 but effective January 1, 2020, the Trump Administration has announced its intention to revise the salary threshold for white collar employees and highly compensated employees. The new regulations do the following:

Increase the threshold salary earnings for exempt executive, administrative and professional employees (i.e., the “white-collar” exemption) by 50% from $455 per week ($23,660 annually) to $684 per week ($35,568 annually) and for highly compensated employees from $100,000 annually to $107,432 annually.
Allow employers to use non-discretionary bonuses and incentive payments, in kind commissions paid at least annually, to satisfy up to 10 percent of the salary threshold.
Permit employers to make a “catch up” payment if an employee does not earn enough non-discretionary bonuses or incentive payments in a given year, as long as the payment is made within one payday of the end of the 52-week period.
Omit any automatic updates to the salary threshold and instead reiterates its determination to update the earnings thresholds more regularly through notice-and-comment rulemaking.

Repercussions for Employers:

Employers who fail to satisfy the minimum salary level will lose the exemption for their employees and be required to pay overtime at the legal rate.
Thus, employers must immediately audit and reclassify affected employees in order to ensure overtime eligible employees are paid their due, that salaries are increased or other compensation is introduced to avoid overtime eligibility. The Department of Labor estimates that 1.3 million workers will become non-exempt when the proposed rule becomes effective, yours might be one of the 1.3 million to be affected.
1. An audit would consist of reviewing payroll records for salary history, reviewing job descriptions for exempt/non-exempt classification, consider options to pay the affected employees more, or reassign their duties to avoid the need for overtime hours.
2. An audit should also include a review and revision of benefit plans that determine eligibility and other metrics on salary or exempt/non-exempt status.
Some states have thresholds higher than the federal even after this change, such as New York. Georgia follows the federal rules. Apply the rules appropriate to the state in which you have employees.
Call our office or visit the Department of Labor’s website for more information on how to implement these changes in your workplace.

Encounters of the Hostile Kind: What Do You Need to Prove a Racially Based Hostile Work Environment?

March 20, 2019

Meet Brenda Smelter. She is a black woman that was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare in July 2013 as a Customer Service Supervisor. She was the only black person who worked in her office, she replaced a white employee who was away from the office on maternity leave. Brenda struggled with performing her job but most distressing at work was that she often overheard co-workers making racist comments about black people; sometimes these comments were made directly to her face and in the presence of others, including members of management.

The severity of these racist comments peaked on the last day of her employment when a co-worker called her a “dumb black nigger” during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The reason Southern Care provided for the termination was “poor fit” citing performance concerns and chaos. After her termination, she was replaced by a white employee, in addition to the return of her predecessor, also white, from maternity leave.

Brenda sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. Smelter contends that Southern Home (1) discriminated against her by permitting a hostile work environment to exist at the office, (2) discriminated against her by terminating her because of her race, and (3) retaliated against her for reporting her co-workers’ racist comments.

After the case was dismissed by the District Court, the 11th Circuit Court of Appeals agreed with the district court that Smelter’s discriminatory termination and retaliation claims fail because she provided insufficient evidence of pretext in response to Southern Home’s legitimate, nondiscriminatory reasons for terminating her. But the 11th Circuit Court disagreed that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment.

Thus, in October 2018, the 11th Circuit Court gave us a recent window into the elements required to establish a racially based hostile work environment claim.

To prove a hostile work environment claim, an employee must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment.

Typically at issue, as was the case here, is the “severe and pervasive” threshold. To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she “subjectively perceive[d] the environment to be abusive.” Then she also must satisfy the objective component by showing that her work environment was one “that a reasonable person would find hostile or abusive.”

Beginning with Smelter’s subjective perception of her work environment. Smelter repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment “never stopp[ed],” as though her co-workers were pushing her to “see how much she [could] take” in the hopes that she would “just quit and leave.” The Court found this testimony sufficient to demonstrate subjective belief in the severity and pervasiveness of the conduct.

The employer objected that Smelter’s failure to report the incidents indicate a lack of subjective believe in the harassment. Precedent recognizes, however, that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive.

Regarding objectivity, the facts sufficient to meet this threshold were:

1. Pervasiveness, also known as Frequency

Smelter endured racist remarks by her co-workers nearly every day that she worked in that office. There were at least 8 racist comments in 2 months that Smelter could recall with specificity.

2. Severity

Brenda endured the following comments: black men were “lazy” and “the scum of the earth; “black women[] ha[d] babies on welfare,” President Barack Obama’s “big ears” made him “look[] like a monkey,” and she did not know that black people could be buried on Sundays; Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes; an occasion when black people were exiting a bus at a Wal-Mart store was described as looking like they were “chained together.”; and a desire expressed to “send them all back . . . to Africa.”. A co-worker “jumped up . . in a rage” and said “get out of my office . . . you dumb black nigger.” in doing so she “hit the desk” like she was about “to charge at” Smelter.

The Court held that these comments were directed at Brenda to humiliate her and were egregious even just once because it was preceded by two months of related abuse, thus, they were severe.

3. “Physically threatening or humiliating”

See point number 2; the comments were severely humiliating. The Court stated that “physical threat” is not always a dispositive requirement.

4. Altered job performance is optional in light of totality of other circumstances

Indeed, “[t]he Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.”

5. Because the comments were made by co-workers, management needed to be aware or made aware of the harassing conduct and must also have failed to take prompt remedial action

Here, there was a concession that no report was made until the day of termination but there might have been actual notice because Smelter testified that everyone thought the slurs were funny and that others, including management, overheard the slurs. Smelter also testified that members of management overheard these comments and were amused by them, but she never made a formal report until the day of her termination.

Take away for employees making this claim: this case demonstrates the type of hostility that makes the threshold for a hostile work environment claim.

Take away for employers defending such a claim: the company must take prompt remedial action if any members of management have actual or constructive notice of this type of hostility.

Background Checks in Employment – Planning a New Hire, Read This Too!

December 21, 2018

How do I complete a background check?

There are several ways for employers to gather information on the background of an applicant for employment. An employer can embark upon the task solo, with the prevalence of online data contact information for alleged previous employers, social media posts, previous and pending civil actions, are all available online. Most frequently however due to the convenience, accuracy and time constraints, employers hire third-party vendors to conduct background checks on applicants.

Background checks reveal important information. However, there are legal limitations on employers obtaining and using this type of information. When employers hire a third party to conduct a background check, or obtain reports from outside agencies, such reports are subject to the federal Fair Credit Reporting Act (FCRA) and state laws. Also, in Georgia, employers must comply with laws concerning criminal background checks and driver’s record information.

The Fair Credit and Reporting Act (FCRA) sets the standards for employment screening for non-public information. Prior to doing a background or credit check, employers must request and receive written permission from the applicant to complete a background check. In the event the employer elects not hire the applicant, the employer is required to provide the applicant with a copy of the report(s) that were utilized in the employer’s decision not to offer employment.

Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of several grounds, including race. Thus, employers must request background checks of all applicants equally and employers are prohibited from utilizing the information to discriminate against applicants.

Under Georgia law, private individuals and businesses may request criminal history records by submitting fingerprints of the person whose records are requested or a signed consent form with the person’s full name, address, Social Security number, and date of birth to the Georgia Crime Information Center (GCIC). Except as specifically authorized by law for certain offenses, the GCIC will not release records of arrest or charges that did not result in a conviction, or sentences for certain first offender crimes, or for crimes where the individual was later exonerated, or the charges were discharged without court adjudication of guilt O.C.G.A. 35-3-34 (2010).

Background Checks in Employment: Planning For A New Hire? – Read This First!

December 8, 2018

What is a background check and why do I need one?

A background check is a review of an employment candidate’s social, criminal, and financial records. Background checks have become standard practice in the employment setting; in fact, up to 70 percent of employers require employees to undergo background checks prior to hiring.

The reasons employers utilize background checks are numerous and varied. Utilizing background checks allows the employer to find the best candidate by looking into the applicant’s criminal background, education, employment history, civil records, references, among other sources of information. A pre-employment background check has become a matter of necessity as some applicants will “lie, steal and cheat” to impress a prospective employer. For example, an employer may want to ensure that the applicant is telling the truth about their qualifications: to determine if the applicant graduated from college, or worked for a previous employer performing the duties as stated on the application. Background checks can also protect the employer from liability, both civil and criminal. For instance, an employer would want to ensure that the applicant has no record of misconduct pertinent to the business as this could be grounds for a negligent hiring Georgia state law tort claim. Or, the employer may want to verify the age of the applicant to be complaint with child labor laws. An employer must also consider immigration laws and seek to verify the immigration status of its employee.

All in all, the benefits of a comprehensive employment background include:

· increased applicant and new hire quality,

· reduced workplace violence,

· reduced negligent hiring liability,

· reduced losses from employee dishonesty,

· making the right hire the first time, and

· avoiding negative publicity, among others.

Most importantly, employers have a moral and legal obligation to provide a safe work environment pursuant to state and federal laws like the Occupational Safety and Health Act (OSHA). The bottom line is that pre-employment background checks help an organization be more successful; that means greater profits to for-profit organizations and greater impact for non-profits.

8 Benefits Employer and Employee Exchange for Severance

September 24, 2018

Severance pay is a matter of agreement between an employer and an employee. It is an agreement that the employer will provide a payment and/or benefits to an employee at the termination of employment. This agreement is usually called a severance agreement or a separation agreement. In the absence of a legislative mandate, employers are incentivized to make offers of severance packages generally in exchange for valuable promises from the employee which would otherwise not be enforceable for lack of consideration. These promises usually include the following top 8:

Agreement not to litigate or sue the employer
Release from certain employment contract terms
Release from future potential legal claims or disputes
Indemnity for tax and other liabilities
Confidentiality of the agreement
Non-competition with the employer’s business interests
Non-solicitation of the employer’s customers, clients and employees
Non-disclosure of company trade secrets and other valuable confidential company information

In the event that one is fortunate to receive severance pay, a company may require the employee to sign documents such as a release and waiver of claims, hold harmless or indemnity agreement, etc., before releasing severance pay. It is important to note however that not all legal claims can be waived. For instance, any agreement which prevents an employee from participating in an Equal Employment Opportunity Commission (EEOC) proceeding or a Security Exchange Commission (SEC) inquiry is void ab initio for illegality.

Although severance pay is usually based on length of employment, some companies are willing to negotiate the severance package with otherwise ineligible employees to include some otherwise unavailable benefits. Some of the benefits an employee would desire include these top 8:

Cash
Favorable payment terms and conditions, e.g a lump sum or annuity
Health, medical, dental and vision benefits – note that pursuant to COBRA, which is a federal law that provides the employee the right to continue group health benefits otherwise terminated due to separation from the employer, employers must provide the employee an opportunity to continue coverage at their own cost; as part of a severance agreement, the employer can agree to pay these costs
Retaining company equipment (such as a cellphone or computer)
Forebearance from challenging an application for unemployment insurance benefits
Provision of outplacement, resume and social media services
Letter of recommendation and other reputation protection terms and conditions
Pension rights (such as profit sharing and 401(k) plans), among several other benefits that would be case-specific

Neither of the above lists are exhaustive. In fact, what each party gives and takes is highly case-specific depending entirely on each party’s priorities and capacities. An employment attorney can assist in ensuring you, as an employer receive the greatest protection for your company through a severance agreement or that you, as an employee, maximizes the benefits payable to you for the dedicated service you’ve provided to an employer.

Storm Surges and Flash Flooding: A Few Employment Law Issues During Natural Disasters

September 17, 2018

You are an employer with a a goal set of each hour, day, week, month, quarter and year, maybe 5, 10, 50 years. But natural disasters such as hurricanes do not respect your goals; they are unpredictable and disruptive even to the most efficient workplaces. To minimize the havoc wreaked on your business by the strong storm, a well drafted human resource policy on issues relevant to bad weather is critical. This article addresses two key considerations to remain compliant with the law and to get back to business as soon as possible.

Wage and Hour

A natural disaster often forces a halt in business operations. However, the Federal Labor Standards Act (FLSA) does not relax or waive its rules during such a period. It requires employers to pay salaried exempt employees during a such a business closure if the employee worked at all during the relevant work week, no matter how briefly. To alleviate the cost to employers, the FLSA permits the employer to require employees to use their accrued and unused paid time off (PTO) during the shutdown. Non-exempt hourly employees on the other hand, may be paid for only the hours actually worked during a business shut down. The FLSA also expects that accurate records of employees’ time worked be persevered in a hurricane-proof format and continue to be kept as employees work through the event.

Employers should prepare clear policies governing this issue well in advance of having to apply its rules

Occupational Safety and Health

The Occupational Safety and Health Act requires employers to provide a safe workplace for their employees. Thus, employers must carefully assess the work space during and after natural disasters to ensure that buildings are structurally sound, hazardous materials are not exposed, amenities such a washrooms, air heating and cooling, first aid are fully functional, electrical wires are not damaged or exposed, mosquitoes and other pathogens are under control, among several other considerations.

OSHA permits employees to refuse dangerous work and to report dangerous working conditions. Dangerous conditions must be reported within thirty (30) days of its discovery and can be made via the OSHA website or over the telephone. Likewise an employee refusing dangerous work must do so promptly, and because OSHA does not recommend abandoning the worksite, the employee must work with management to address her concerns.

Once again, clear policies on the issue drafted and provided to employees and managers in advance of a natural disaster is preferred.

Tag: employee