Employment Law Blog

The Slippery Slope of Social Media in Hiring

In the age of the electronic workplace, technologies like email, cell phones, text messaging, instant messaging and the internet all make for a much more mobile and accessible workforce. The advantages of nearly unlimited access can be profound for companies, increasing efficiency and productivity. Working smarter includes hiring smarter. Human Resource Departments are usually on the forefront of the technology curve, understanding, using and regulating how a company interacts with the fast moving world of the web. One of the fastest growing concerns around the HR water cooler is social media.  How do we, as a company, use social media to our advantage? Beyond marketing, social media sites such as Facebook, Twitter and LinkedIn have become one of the best ways to recruit new employees – a primary concern for HR. Sounds logical to research the candidates applying for new openings, using every means you have to insure the potential employee will fit into the company culture and become a productive member of the team.  It’s no different than checking references or running a background check, right?  Well, it is different.  With social media personal and professional lines are blurred. While information willingly submitted to the public domain is just that “public,” a general search through social media may reveal both factual and inaccurate information about a candidate. More >

Pregnancy Discrimination

In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years.  That, however, does not mean that the cause of action is dead.  Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7^th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor.  Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.

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This article does not constitute legal advice.

Have employers gone too far?

The burgeoning backlash against employer monitoring of employee social media posts. More >

New Guidance on the Use of Criminal Background Checks in Hiring

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 >

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

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 >

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

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 >

Retaliation by Association

Last January, the U.S. Supreme Court expanded those protected under the retaliation provisions of Title VII and included employees who have a close family relationship to a person who has made a complaint of discrimination.  Previously, only those persons who actually made or supported a complaint were protected by law.  However, in Thompson v. North American Stainless, the Supreme Court unanimously held that it is an unlawful employment practice to fire or otherwise retaliate against an employee's "close family member" who has filed claim of discrimination.  In Thompson, two employees were engaged to one another.  The female co-worker filed a claim of discrimination against her supervisors and subsequently, the male was fired.  The male filed a claim of retaliation under Title VII claiming that his termination was in retaliation for his fiancée's discrimination complaint. While the Sixth Circuit held that he did not state a claim under the statute as one who "engaged in protected activity," the U.S. Supreme Court reversed holding that the anti-retaliation provisions protect conduct that may dissuade a worker from making or supporting a charge of discrimination.  As applied in this case, the Court determined that the female co-worker may have been dissuaded from making a claim of discrimination if she knew that her fiancée could be fired as a result.  This case gives a cause of action to the "close family member" for retaliation and opens employers up to additional liability. More >

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al.

This week the US Supreme Court issued an opinion which has been touted by some as a huge win for religious institutions in the United States, and which has already been spun by certain political pundits as a roadblock to Federal government intrusion.  While certainly significant, the scope and fallout from Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 556 U.S. ___ (2012),[1] Slip Opinion No. 10-553 (January 11, 2012), is unknown, and may be less momentous than some hoped.  More >