Employment Law Newsletter

Many employers use criminal background checks to "weed out" individuals who engage in activities that pose significant risks to the workplace. This past April the United States Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 ("Guidance"). Employers should consult the Guidance before considering criminal histories when making employment decisions.

While having a criminal record is not a protected characteristic under Title VII, the Guidance warns that excluding an individual from employment on the basis of an arrest or criminal history may result in unlawful race or national origin discrimination under Title VII in one of two ways. First, the Guidance points to statistical evidence showing that Blacks and Hispanics are arrested and convicted in far greater numbers than Caucasians. Thus, an employer taking these records into account may unintentionally discriminate along racial and national origin lines because Blacks and Hispanics are disproportionately arrested as compared to other groups (commonly known as unintentional disparate impact discrimination). Second, an employer can utilize the existence of an arrest or conviction as a pretext to intentionally deny employment on the basis of race or national origin (commonly known as intentional disparate treatment discrimination).

Internal investigations by employers into allegations of unlawful harassment, theft or other workplace misconduct are commonplace in today’s work environment. In an effort to protect the complainant, the accused and the witnesses – not to mention the fundamental integrity of the investigation – employers typically warn those participating in the investigation that the matters discussed are confidential and are not to be discussed outside the context of the investigation. This standard common sense practice has now been deemed a potential violation of employee rights under the Section 7 of the National Labor Relations Act (NLRA) by the National Labor Relations Board.

As noted in our previous article in this issue, the NLRB is flexing its muscles to challenge employer practices in non-unionized workplaces that historically were not on the Board’s radar screen. These have included attacks on standard social media policies and employee handbook disclaimers as violations of employees’ rights to engage concerted activity. The NLRB’s July 13, 2012, ruling in Banner Health Systems is just another example of the Board’s extending its reach into non-unionized workplace. In that decision, the Board reasoned that a blanket confidentiality warning to employees during the course of an internal investigation could discourage employees from seeking the support of co-workers in pursuing or defending a claim of workplace misconduct. Because Section 7 of the NLRA accords employees the right to freely communicate with co-workers about the terms and conditions of employment without fear of retaliation by the employer, the Board concluded that any suggestion by the employer to maintain the confidentiality of the investigation could discourage employees from exercising these rights.

Although the Board stopped short of invalidating all confidentiality instructions during the course of an internal investigation, it cautioned that a blanket prohibition will not pass muster. To survive a challenge the employer must show that prior to giving a confidentiality instruction it engaged in a case-specific analysis to determine whether (1) witnesses were in need of protection; (2) evidence was in danger of being destroyed; (3) testimony was in danger of being fabricated; and, (4) there was “a need to prevent a cover up.” Absent such factors, the NLRB will find the confidentiality instruction a violation of Section 7 of the NLRA.

Employment Law Newsletter

For the first time in three years, proposed legislation being championed by Senate and Assembly Democrats would raise the minimum wage from $7.25 to $8.50. The bill was introduced despite the December recommendation from the Minimum Wage Advisory Commission that the rate remain unchanged for 2012. Should the bill be adopted, New Jersey’s minimum wage rate would be among the highest in the country, topped only by Oregon and Washington. Although Gov. Christie has hinted at a veto, he expressed his intention to listen to arguments on both sides of the issue.

Employment Law Newsletter

The U.S. Department of Labor (DOL) recently issued two Fact Sheets to provide general information about employee rights under the Fair Labor Standards Act and the Family Medical Leave Act.

Fact Sheet #73: Break time for Nursing Mothers under the FLSA: This Fact Sheet provides information about an employer’s obligation to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth” as required by the 2010 amendments to the FLSA. Among other things, the Fact Sheet provides the following additional information about the law’s requirements:

Employment Law Newsletter

In an earlier issue we advised that the National Labor Relations Board (NLRB) had issued a final rule requiring most private-sector employers to conspicuously post a notice of employee rights to unionization in the workplace. The posting requirement was to take effect on November 14, 2011, but in October the NLRB postponed the posting requirement until January 31, 2012.

Since then there have been several legal challenges to the NLRB’s authority to compel employers to post a notice of unionization rights. Recently, a federal judge hearing one of the challenges advised the NLRB that she needed more time to consider the parties’ briefs and oral arguments before deciding the case, and would enjoin the implementation of the posting requirement if the NLRB did not voluntarily extend the effective date. On December 23, 2011, the NLRB announced that it would adjourn the effective date of the posting requirement a second time, to April 30, 2012. The extension will give the courts additional time to thoroughly review whether the NLRB exceeded its delegated authority in the rulemaking process.

Employment Law Newsletter

The NLRA posting requirement discussed above is only one of several recent actions taken by the NLRB that serve as a sober reminder that even in non-unionized workplaces, private sector employees have statutory rights under Section 7 of the NLRA to engage in concerted activity for, among other things, “mutual aid and protection.”

In its January 3, 2012, ruling in (NLRB Case 12-CA-25764), the Board considered whether a requirement that employees execute arbitration agreements that waived employees’ rights to any judicial forum in favor of arbitration, and further, prohibited the arbitrator from fashioning a collective or class action, violated employees’ Section 7 rights to engage in concerted action for mutual aid and protection. The Board concluded that such arbitration agreements unlawfully restrict employees’ rights to collectively pursue employment-related claims, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. Some commentators view this decision as a repudiation of the U.S. Supreme Court’s 2011 decision in , which held that the FAA pre-empted California state law barring arbitration agreements from prohibiting class-action lawsuits.

Employment Law Newsletter

For decades federal contractors have been dealing with the Office of Federal Contract Compliance Programs’ (OFCCP) requirements designed to promote workplace equality for women and minorities in the workplace. Recently, the OFCCP announced proposed regulations under Section 503 of the Rehabilitation Act of 1973 that would extend, and in certain respects, expand those obligations to promote opportunities for disabled workers.

Rule Highlights