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Tag: legal
U.S. EEOC Assistant Legal Counsel Carol Miaskoff brought up a few points in her Florida presentation (see video, below) that raised questions among ERE members.
I caught up with her on the phone to go over a few of those questions. Mary Kay Mauren, senior attorney advisor, was also on the call. keep reading…
In what amounts to a formality, the U.S. Department of Homeland Security has put the last nail in the coffin of the “no match” rule, officially rescinding the much debated, but never implemented proposal.
As employers increasingly turn to RPOs they need to make sure the firm they hire is well grounded in fair hiring laws, because they could be held liable for the firm’s violations.
“It’s a good best practice to have,” counsels Christopher Olmsted, a specialist in labor and employment law and partner in the San Diego firm Barker, Olmsted & Barnier. Now, in the wake of a new federal appeals court decision, proper vetting is “even more important,” he says.
Last month, the 2nd District Court of Appeal based in New York, said an employer is liable for the misdeeds of its hiring agents, even if it considers them independent contractors.
Said the court: “We hold that an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.” keep reading…
Monster has settled a class action lawsuit brought in connection with the company’s stock options backdating scandal.
In a filing with the Securities and Exchange Commission today, Monster Worldwide says it will pay $4.25 million in full settlement of the action. “A substantial majority” of the money will come, the company says, from insurance “and contributions from another defendant.”
The filing, Taylor v. McKelvey, et. al., does not name the other defendant. However, the now-deceased former chairman and CEO Andrew McKelvey is one of at least six former Monster executives and directors who were sued.
Monster said it will reverse $6.85 million it had previously set aside in connection with this litigation in its 3rd quarter financials.
In its most recent quarterly filing with the SEC, Monster said the now-settled Taylor case was “one civil action pending against it in connection with its historical stock option granting practices.”
So, there you are, innocently researching a potentially awesome new candidate when you stumble upon her personal blog that goes beyond mere TMI and causes your cheeks to turn crimson. Or, perhaps your eyes are still bug-eyed after reading about some “interesting” history in a candidate’s criminal background check. Or you receive a video resume and your knee-jerk reaction is that the person is simply u-g-l-y with no alibi.
Whatever the case, if you have ever felt as though you might be running into legal issues, the U.S. EEOC’s Assistant Legal Counsel Carol Miaskoff says to listen up to the following basic rules:
Kenexa is being sued (again). Elance, an IT and contract outsourcing firm, has been hacked, and user information stolen. And just in the nick of time, Cytiva is out with a white paper on (what else) ATS SaaS security.
Now, the details. keep reading…
It has been an interesting week as I have watched issues that I deal with on a daily basis become part of the mainstream news media. For those of you who are unaware, earlier this week the Supreme Court handed down a ruling in a case that deals with discrimination and employment testing. This case is highly relevant to what myself and other I/O psychologists do, and its complexities do not surprise me at all. I cut my teeth as a psychometrician for the City of New Orleans, helping to create and validate police and firefighter testing. I can say with confidence that, when it comes to test development and validation, public service testing carries with it by far the most potential for litigation. There are many reasons for this, all of which seem to hinge on the promotion (or lack thereof) of those in a protected class (e.g., minorities) over those in non-protected classes.
A complete discussion of the intricacies and technicalities of validation, discrimination, adverse impact, and differential prediction is beyond the scope of the words I am writing today. Suffice it to say that this case has placed competing priorities in the use of testing in the spotlight. These competing priorities are using fair testing while striving to eliminate discrimination in hiring. While title VII of the Civil Rights Act of 1964 has attempted to provide some guidance in relation to these competing goals, the Ricci case has laid bare some critical issues that in my opinion certainly call for the government to re-evaluate and modernize the standards it has set.
We are mandated to use valid tests. Valid tests can often lead to minorities being hired at lower rates than those of other races. This is seen as OK as long as the test has been validated, because in theory this means the test is job-related and job-relatedness is the standard by which the legality of testing is determined.
However, what are we to do when sticking to the use of validation — as we have been asked to do — creates a situation that actually inhibits the goal of ensuring diversity and fairness? This has been a thorny issue for those of us in my profession for a long time. There is no magic bullet. The dissenting opinion in this case led by Justice Ginsburg rallies around the idea that the spirit of diversity and fairness should be the highest standard to which we aspire in hiring. It is hard to argue with this point … except for the fact that there are technical issues which can stand in the way of our achievement of this goal.
So, what does all this mean for hiring in the corporate world? I offer my humble answer to this question as follows: keep reading…
The U.S. Supreme Court today gave employers some guidance today on the use of assessment tests, saying the results of these tests can not be ignored simply because they have an adverse impact on a protected group.
Ruling 5-4 in the case of Ricci v. DeStefano, the court’s majority said just because a disproportionate share of whites pass a test does not make the test discriminatory. Writing for the majority, Justice Anthony Kennedy said invalidating test results because of the statistical racial outcome, “… is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”
Now, before an employer looking at the racial makeup of those who passed and failed a promotional exam and, almost certainly, other types of employment exams, can decide to throw out the results because it fears a discrimination lawsuit, it must have “a strong basis in evidence” to believe the test is discriminatory under Title VII of the Civil Rights Act of 1964 and its amendments.
Employment lawyers reacted with caution, saying the 92-page decision, including a dissent by Justice Ruth Bader Ginsburg, will take time to digest. Their initial impression, however, is that the court appears to have tempered if not invalidated the 80 percent rule of the Equal Employment Opportunity Commission. That rule states that the selection of a group at less than 80 percent of the group with the highest rate will be considered by the EEOC as evidence of discrimination.
When Jack Gross lost his title as claims administration vice president with FBL Financial Group Inc.’s Iowa Farm Bureau divisio
n he saw it as a demotion, even though he kept his salary and his responsibilities. Then he started receiving poorer job evaluations. Two years later, Gross was demoted and his job given to a younger woman.
He sued under the Age Discrimination in Employment Act, which, like Title VII of the Civil Rights Act, prohibits discrimination, but which, unlike Title VII, hasn’t received the same attention from Congress over the years.
Gross won $47,000 from an Iowa jury. The verdict was upheld on appeal. But Thursday, in a historic employment decision, the U.S. Supreme Court overruled the lower courts in Gross v. FBL Financial Services, declaring that it is up to plaintiffs to prove age bias was the reason for an adverse action against them by an employer.
The court’s decision throws out a long-standing rule by which an employee could prevail on an age bias claim if they could prove age was a factor, even if it wasn’t the only one. Once the employee plaintiff established that with evidence, it was up to the employer to show a legitimate reason for taking the action it did.
These so-called “mixed motive” cases reflect such real-world situations as where layoffs fall disproportionally on older workers who tend to have higher pay than younger workers. In that kind of case, replacing older workers with younger ones may be one of multiple reasons considered by the employer. To make a bias case, however, a dismissed worker previously needed only to show that age discrimination was a part of the decision. That shifted the legal burden to the employer who then needed to show that the decision — in this example a layoff — would have been handled the same way regardless of worker age.
The Supreme Court ruling, written by Clarence Thomas and decided on a 5-4 vote, invalidates this two-step process — shifting the burden of proof — and places the entire burden of proof on the employee.
“The burden of persuasion does not shift to the employer even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Thomas writes in his decision. keep reading…
Sometime this month, perhaps even today, the U.S. Supreme Court will hand down a ruling with potentially far-reaching implications for employers.
So much has been reported and written about the case of Ricci v. DeStafano that it’s almost impossible to have missed the story of how 20 New Haven, Conn. firefighters were denied promotions although they came out on top in civil service tests for lieutenant and captain. Eighteen of the top scorers were white; two Latino. None were black, although the city is 37 percent black and blacks made up 30 percent of the fire department in 2003, when the test was given.
When the city’s Civil Service Board got the results, it feared certifying the test would expose the city to a Civil Rights lawsuit on the basis that the test had a disparate impact on a protected minority. But not certifying the results meant an almost certain lawsuit from the successful candidates who might claim, as they later did, that they had been discriminated against based on their race. A part of Title VII of the Civil Rights Act of 1964 makes it illegal to “alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.“
The Morton’s Fork faced by the board was underscored by its 2-2 vote on certification, an outcome that meant the test results were not certified. keep reading…
Are you hiring in the UK? Here’s what you absolutely must know about discrimination law. keep reading…
The first casualty when war comes is truth. – Sen. Hiram Johnson (R., CA), 1918
The looming passage of the Employee Free Choice Act has the business world in a frenzy. The EFCA, if you haven’t been paying attention, would make it easier for unions to organize and reduce employers’ leverage in contract negotiations.
Businesses act like sentries on the parapets of ancient castles, warning of the approach of barbarian hordes. Consultants, trade associations, and labor lawyers presage unions gaining strength and forcing onerous agreements, obliterating productivity and adding costs. All of this comes, of course, at the worst possible time from a business perspective. keep reading…
Here at ERE, we have a profound respect for the truthiness and recruiting insights of Stephen Colbert.
Bush is out the door and Obama is here — but what does this new administration mean for the workplace? There’s the obvious. Many are looking to Obama for his plan to revive the economy, bring us out of the recession, create new jobs, and in effect get us back to recruiting for more requisitions than we know what to do with — the good ‘ol days.
But what else does an Obama administration mean for the workplace and for the recruiting world?
A significant piece of legislation with great potential to impact the American workplace is the Employee Free Choice Act, which amends the National Labor Relations Act. Maybe you don’t recruit for or work in a unionized organization — and as a result, you’re thinking, so what? Should you even care about this? And will it affect you? Yes and yes. If passed, the EFCA would make it easier for your workplace to become organized. And given the legislation has received near-unanimous support from Democrats in the House and Senate both, and full support from President-Elect Obama who pledged to enact it, the EFCA should be on your radar.
How are you doing with those New Year’s resolutions? We mean the work ones, not those “lose-weight-eat-healthy-get-more-exercise” ones.
If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.
Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.
This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.
Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.
“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.
So why should this prompt a new year’s review of hiring practices?
Changes to the Americans with Disabilities Act that take effect New Year’s Day will broaden the scope of those covered and expand the very definition of disability. One of the country’s foremost employment and labor law firms says the “ADA Amendments Act will mean a massive change for most of the country’s employers.”
“More workers will be defined as disabled,” says Myra Creighton, partner in the Atlanta office of labor firm Fisher & Phillips. That will almost undoubtedly mean that more workers will be requesting some form of accommodation for their disability.
Where previously a diabetic or someone with ADD whose condition is controlled by medication was probably not disabled under the prevailing court decisions, now the amendments make clear that they probably are. The amendments loosen up the definition of disability and eliminate consideration of the effect of medication, prosthetics, hearing aids, and the like. That means a person is to be considered disabled whether or not any form of treatment or corrective device (with the exception of glasses and contacts) is used to control or ameliorate the condition.
However, for recruiters and hiring managers, the impact is likely to be more subtle.
This week:
The hiring practices of one of the most famous entertainment venues in the world have been called discriminatory as the result of a background criminal check that turned up a job candidate’s assault conviction.
A New York City law firm filed a complaint with the Equal Employment Opportunity Commission claiming Madison Square Garden discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions.
The EEOC complaint alleges that Carlene Clarke, 27, received an employment offer letter from New York’s Madison Square Garden in September 2007 which was rescinded a month later after a background check discovered she had pleaded guilty to misdemeanor assault more than five years earlier.
According to the press release issued by Outten & Golden LLP, which represents Clarke, the rationale for the complaint is that “use of criminal histories in making hiring and other employment decisions has a disparate impact on African-Americans.”
Mickey Silberman, the ubiquitous Jackson Lewis attorney with a gift for gab and an encyclopedic knowledge of the U.S. government’s online recruiting rules, offers employers who must comply with such rules three questions to ask themselves.
By asking themselves these questions, he says, you can reduce the number of people considered “applicants.” This can help employers better comply with the rules. (If you can show that you hired 20 women out of 25 applicants, that’s generally better than saying you hired 20 women out of 25,000 applicants.)
Anyhow, the three questions:
The U.S. EEOC will be “looking very, very closely at disparate impact issues,” the agency’s chair Naomi Earp said a few minutes ago here at the big ILG conference in Anaheim.
President Bush appointed Earp, a single mother of a teenage son, to her current term in 2005.
She says the “agency has no illusion” that it can tackle all of its huge workload. Instead, it hopes to bring about workplace change through disparate impact cases. Expect the EEOC to focus specifically on technology and tests used by employers in the hiring process.
Also, Earp:
–Says that people with some Asian and African accents are sometimes “viewed as put-offs.” People dwell on the fact that they’re Japanese-Americans or another nationality and ignore the content of their words.
–Says Hispanics see this as “our time” and expect to be taken very seriously.
–Gets a kick out of a new Bloomberg flex-scheduling policy that coincides with a lawsuit against the company.
–Lashed out at those who believe “corporations are inherently evil.”
–Says, not-so-jokingly, of the EEOC: “The one thing we do really well is prosecute employers.”
When Monster bought Trovix in the summer of 2008, the blogosphere popped with wonder at how the job board would make use of T... more »