Employers Should Take Care When Requesting Arrest and Conviction Information

July 2011

The Equal Employment Opportunity Commission (“EEOC”) recently provided further advice to employers when investigating an applicant’s criminal background. While, in Florida, the Agency for Healthcare Administration (“AHCA”) mandates certain screening of caregivers, the EEOC’s guidance in this area should be taken into consideration where it does not conflict with a hiring mandate issued by AHCA. Continuing to frown upon an employer’s request for such information, the EEOC advised that employers should exercise caution when requesting and utilizing criminal background information. As in the past, the EEOC continues to emphasize that blanket prohibitions on the employment of individuals with conviction records will be highly scrutinized. To minimize such scrutiny, employers should make hiring decisions on a case-by-case basis. 

With regard to arrest records, employers must take special care when utilizing them to make hiring decisions. More specifically, employers should first determine whether, in light of the nature of the business and the position being applied for, it is even necessary to inquire about past arrests. If an employer feels that this information would be useful, then the employer must ensure that: (1) questions are limited to arrests that are related to the position being applied for; (2) inquires are made into whether the applicant actually engaged in the conduct for which he/she was arrested; and (3) a reasonable opportunity is given to the applicant to dispute the validity of the arrest.

In light of the above, employers should take time to review job applications for questions related to arrest and conviction records, and training should be provided to the individuals involved with the hiring process. Of course, the Fair Credit Reporting Act must also be considered when making a hiring decision based on information received from an agency engaged in running background checks.

EEOC Holds Public Meeting On Leave As A Reasonable Accommodation. 

As noted in May’s article, the EEOC recently issued its final regulations interpreting the Americans With Disabilities Act Amendments Act (“ADAAA”). Just recently, the EEOC held a public meeting addressing leave as a reasonable accommodation under the ADAAA, noting its view that employers should be flexible and evaluate leave requests on a case-by-case basis. Most notably, the EEOC emphasized that leave policies which have strict termination clauses if an employee fails to return to work will face high scrutiny when used against a disabled employee. Indeed, such policies have already been challenged by the EEOC, two of which resulted in consent decrees of 3.2 and 6.2 millions dollars, respectively. 

The overall message communicated by the EEOC provides that employers should take care when setting strict guidelines on leave provided to disabled workers. Each case must be evaluated on its own merits, and continued communication between the employee and all relevant players is critical. Additionally, other accommodations, such as reassignment or reduced hours, must be considered if they would enable an employee to return to work. 

Employers should review any fixed leave policies to ensure they allow for extensions or adjustments where appropriate. Additionally, Human Resources personnel should be proactive in communicating with disabled employees, and ensure that all efforts to provide accommodations have been documented. If an employer has leave policies that are administered by third parties, it should make sure that such information is shared with the relevant decision-makers at the work-site. 

Oral Complaints Are Protected Under the FLSA. 

This past spring, the UnitedStates Supreme Court ruled that oral complaints made by an employee can be considered “protected conduct” under the anti-retaliation provisions of the Fair Labor Standards Act of 1938. In the case considered by the Court, the employee alleged that he had been suspended and terminated for lodging verbal complaints about the legality of the location of the employer’s time clocks. In reaching its conclusion that these oral complaints were sufficient to trigger the FLSA’s anti-retaliation provisions, the Court noted that limiting the law’s applicability to written complaints would both undermine the FLSA’s basic objectives and weaken its enforcement. 

As such, the Court found that both oral and written complaints would be covered by the FLSA’s anti-retaliation clause as long as the complaint is clear and detailed enough such that a reasonable employer would understand it as an assertion of rights protected by the statute. How broadly this “fair notice” standard will be interpreted remains to be seen, and employers should take care to examine and document both oral and written employee complaints.