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Showing 246 posts in Employment Law.

New Guidance on the Use of Criminal Background Checks in Hiring

April 27, 2012
Posted In Criminal Background Checks, EEOC, Employment Discrimination Laws, Employment Law, Hiring and Firing, Workplace Discrimination, Harassment and Retaliation

If you are an employer which uses criminal background checks as part of your decision process in deciding whether to hire an applicant, you should be aware that on April 25, 2012 the U.S. Equal Employment Opportunity Commission (EEOC) issued a new Guidance (EEOC Enforcement Guidance No. 915.002) which further clarifies under what circumstances such a practice may in fact be viewed as discriminatory.  While the use of criminal background checks to screen applicants may seem like a colorblind endeavor, the EEOC has outlined via its Guidance when that activity can have an unlawful impact on certain groups of job applicants. This finding is based upon the EEOC’s noted findings, based upon historical data, that different races are incarcerated at different rates, making a prohibition on not hiring anyone with a conviction a prohibition which is more limiting to African-American applicants as opposed to Caucasians for example.    Because of this new clarification on the potential unlawful effects criminal background checks may have, employers generally need to once again examine their hiring policies to make sure that they will not run afoul of the law even if one’s motive in conducting criminal background checks is pure. More >

Plan Documents Rule Ineffective to Protect ERISA Administrators Against Claims by Adverse Spouses

April 18, 2012
Posted In Employee Contracts, Employment Law, ERISA, Insurance Coverage

By now, it is abundantly clear that administrators of ERISA pension or life-insurance plans are required to pay death benefits to the spousal beneficiary identified in the employee’s plan documents even when the employee has divorced the spouse identified at the time the benefits become payable.  The so called “Plan Documents Rule” can have a harsh effect as it applies even when the former spouse has waived all interest in an employee’s ERISA plan during state court divorce proceedings.  See McMillan v. Parrott, 913 F.2d 310 (6th Cir. 1990); Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009).  The Supreme Court has rationalized strict interpretation of the Plan Documents Rule, in part, because it establishes a uniform administrative scheme and simplifies the duties incumbent upon a plan administrator in making distributions. More >

Unpaid Interns – Too Good to be True?

April 9, 2012
Posted In Employment Law, Fair Labor Standards Act (FLSA), Hiring and Firing, Salary Threshold

With summer fast-approaching, many employers are now deciding whether to hire summer interns. Undoubtedly, the benefits of an internship extend to both the employer and the intern. The company receives the intern’s services, while the intern enjoys exposure to and experience within his or her chosen field. If your company is considering hiring an intern, however, it is imperative that you seriously evaluate the internship program and policies to ensure that your company is not violating federal law. More >

School’s Out for the Summer!: Important Employment Law Considerations when Hiring Interns and Graduates

April 5, 2012
Posted In Americans with Disabilities Act, EEOC, Employee Contracts, Employment Discrimination Laws, Employment Law, Fair Labor Standards Act (FLSA), Hiring and Firing, Informal Discussion Letter (“EEOC Letter”), Internet & Media Law, Workplace Discrimination, Harassment and Retaliation

Spring is here, and along with the change in season comes a flurry of graduation announcements, parties, and for employers, a flurry of applications and resumes from recent high school and college graduates.  Recent graduates and interns provide a wealth of talent for many employers, and often become a core part of their operations and strategy.  However, there are a few employment law considerations that must be understood by a company’s HR representative, and really, everyone involved in the hiring process, when advertising, hiring and determining wages for your Spring hires. More >

Class Action Waivers in Employee Arbitration Provisions: Proceed with Caution – For Now.

April 4, 2012
Posted In Class Action Waivers, Employee Contracts, Employment Law, Federal Arbitration Act (FAA), National Labor Relations Act

Employee arbitration provisions containing class or collective action waivers are frequently utilized by non-union employers, often within employment agreements as a condition of employment.  The National Labor Relations Board (NLRB), however, recently issued a decision regarding the validity of such provisions which could significantly impact the ability of employers to enforce class waivers. More >

Major Verdicts and Settlements

March 29, 2012
Posted In Employment Law, Insurance Coverage

Lane Report, March 2012 More >

Use of Performance Reviews in Defense of Discrimination Claims

March 26, 2012
Posted In Employee Performance Reviews, Employee Personnel Files, Employment Law, Workplace Discrimination, Harassment and Retaliation

Two recent decisions from the Sixth Circuit Court of Appeals highlight the importance of record-keeping in defending discrimination claims.  In each of these two cases, the plaintiffs raised claims of age discrimination, but were unsuccessful in their claims largely due to the fact that their performance reviews and other documents in their personnel files supported the employers’ legitimate reasons for the employment decisions. More >

High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?

March 22, 2012
Posted In Employment Discrimination Laws, Employment Law, Informal Discussion Letter (“EEOC Letter”), U.S. Equal Employment Opportunity Commission (“EEOC”)

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Informal Discussion Letter (“EEOC Letter”)[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, may be in violation of the Americans with Disabilities Act, because they screening out individuals who are unable to graduate because of a learning disability.  Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills. More >

Employers Are Demanding Facebook Passwords—Should They?

March 21, 2012
Posted In Employee Contracts, Employment Law, Internet & Media Law, Internet Defamation, Social Media

It’s hard to miss the latest news reports.  Employers around the country are demanding Facebook passwords from both applicants and current employees in order to monitor employee activity.  While the allure is understandable – in this day and age, almost any negative internet-based comment about an employer can be found by customers, clients and potential employees – the real question is, should an employer take such a drastic step?  Probably not. More >

Plan Ahead – The Lesson of Fighting Unemployment Benefit Claims

February 20, 2012
Posted In Employee Contracts, Employment Law, Hiring and Firing, Unemployment Benefits

Few things are more frustrating for an employer than terminating an employee for cause due to violation of company policy, be it for failing a drug test or some form of misconduct, and then that employee being awarded unemployment benefits. We here at McBrayer PLLC find this result to be all too common, and then it is typically an uphill battle to overturn the award.  In many instances, the problem lies not in the award itself, but in the lack of foresight and preparation which preceded the termination of the employee.  If the first time the issue of unemployment benefits is addressed is post-termination, then the key moment to address the issue has likely been lost.  More >

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