Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

The school year is coming to an end and a new batch of graduates will be hitting the job market, looking for their first real job. The struggling economy has little to offer, and employers are not confident enough to add personnel until the economy improves a bit. The natural temptation for both employers and job seekers is to consider summer internships. Free work, resume boost, whatever the motivation, it all sounds good. Even the internet is full of stories about famous people who worked as interns on the way to becoming who they are today. Oprah Winfrey, Lady Gaga, Brooke Shields, and Kanye West, all reportedly worked as an intern in their career. It sounds even better.

Last weekend Steven Greenhouse of the New York Times wrote, “As of Friday’s job reports showed, job growth is weak, and the unemployment rate for 20-24 year olds was 13.2 percent in April.” He mentions lawsuits filed by three different unpaid interns who worked for “Harpers Bazaar, on the movie set of “Black Swan,” and for Diane von Furstenberg’s fashion house, as well as the negative work experience of other interns who worked in Hollywood for Scott Rudin, and for a booking agent in New York. While some internships may provide valuable experience and boost a resume, others are little more than the exploitation of the vulnerable unemployed, required to perform menial tasks for free.

The Department of Labor takes a dim view of employers who seek to supplement their paid workforce, by using unpaid summer internships in this way. A DOL fact sheet offers guidance to “for-profit” private employers,” to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act, for the services they provide. Internships will most often be viewed as an employee-employer relationship, unless each element of the test described below is met. 
 

Internship Test:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. 

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.

I blogged about summer internships around this same time last year. Unfortunately, the slow economy is perpetuating the practice, as employers and college graduates continue to look to alternate ways to solve their economic problems. Minnesota Lawyer called me for a quote on an internship article they are publishing, after recognizing the same seasonal employment issue.  Employers should think again before concluding an unpaid internship is a great solution.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Conducting criminal background checks is becoming routine in the hiring process of new employees. Many employers see them as one way to vette potential candidates, and reduce the pool of job applicants. Yet, automatically excluding a job applicant because of a criminal history may subject an employer to a disparate treatment claim brought by the EEOC.

Last week, the EEOC issued a helpful guide for employers called Enforcement Guidance of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be aware there are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

• First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. 
•  Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

(A short question and answer guide was also issued, by the EEOC which summarizes the major points.)

Minnesota employers should also be aware of state statutes which relate to criminal history checks. Minn. Stat. 181.981 applies to private sector employers. It is designed to encourage the hiring of ex-offenders by limiting the parties ability in negligent hiring and retention cases, from introducing evidence relating to an employee’s past criminal history, when the job duties of the position did not expose co-workers or the public to any heightened risk of harm.

In the case of public employers, Minn. Stat. 364.021 prohibits most public employers from making inquiry about the criminal history of a job candidate, until the applicant has been selected for an interview. This of course does not apply where the public employer has a statutory duty to conduct a criminal history background on a job candidate such as corrections or law enforcement.

Hiring decisions have the potential for being scrutinized. As such, they should be carefully planned and if a criminal history is utilized, it should be reviewed to insure compliance with the most recent EEOC guidance.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It has been a while since I have had the chance to post a new blog. I have been adjusting to life with a newborn in the house again. Josée is now two months old, and I am able to get back to a regular work schedule and blogging.

It is all over the internet. Job seekers are being asked to provide prospective employers with their passwords for e-mail and social media sites. The Associated Press reported, a sheriff’s department in Virginia asked job applicants to “friend” background investigators, because today virtual friends know more about each other than actual next door neighbors. The background investigators then look at the social media sites for any potential “derogatory” behavior that could damage the sheriff agency’s reputation if the applicant is hired.

Legislators are not ignoring the phenomena either. Connecticut Senator Richard Blumenthal is currently sponsoring legislation which would make it illegal for employers to ask for this information, citing the private nature of the inquiry.

Currently, it is not illegal for an employer to request a password from a job applicant, but it is certainly a slippery slope with regard to protecting an employer’s right to know, against an applicant’s right to privacy. It is also against Facebook’s policies for users to provide their passwords to others. It is understandable employer’s want to hire the best candidate and protect their business interests, but before social media was even around, employer’s had many other avenues available to properly vet a job applicant, including background checks, reference checks, and detailed interviews.

Social media is the water-cooler of the 21st century. People voice their complaints, share stories and opinions, all on social media websites. Requesting a job applicant’s password is akin to asking for the key to their personal diary. It is important to determine why an employer is interested in the information found on a social media site. Is it really necessary for hiring a job applicant? After the employer gets information from a social media site, what will be done with it?

If an employer is concerned about the character of a prospective job applicant, then traditional background checks, reference checks and interviews are an appropriate means to gather the necessary information to make an employment determination. If an employer is concerned about protecting their business interests from employees sharing information or disparaging the business on social media sites, the better approach would be to inform applicants as a requirement to being hired, they must sign a confidentiality agreement and a non-disparagement agreement. Of course, such agreements must not impact on an employee’s speech rights under the NLRA.

I would not advise employers to ask job applicants for passwords to e-mail and social media sites. I would not want one of my employer clients to be the test case in the legal system over this unsettled issue. Right now, the old-fashioned approach is a better alternative to vetting prospective employees.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Our Minnesota state legislature is currently considering adding a new protected class status to the age, race, gender, disability and other protected classes covered under both state and federal laws. The new protected class being considered is the unemployed.

A bill recognizing unemployed status as a protected class was introduced in the Minnesota Senate last month, and a companion bill was introduced in the House. The Senate file had its first reading and was referred to the Judiciary and Public Safety Committee. The House file was read and forwarded on to the Commerce and Regulatory Reform Committee. Both bills are similar, but not identical. The Senate version carries a civil penalty of not more than $5,000.00 for a first offense and not more than $10,000 for a second offense. The House version currently carries no civil penalty.

Minnesota is not alone and joins over 18 other states who are similarly considering unemployed status as a protected class. According to James Hays and Rebecca Hirschklau of the Sheppard Mullin employment blog, the state of New Jersey has already adopted new legislation recognizing the unemployed as a protected status. They also reported new legislation has been proposed on the federal level in both the House and Senate seeking to bar private employers with fifteen or more employees from discriminating against individuals who are unemployed. The proposed federal legislation covers job postings and hiring decisions, unless current employment is a bona fide occupational requirement.

We will be watching both our Minnesota legislature, and Congress, and let you know what happens….Stay tuned

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many job postings for entry level positions require a job applicant have a high school diploma or an equivalent GED. It sounds simple enough, but in some circumstances it may actually run afoul of the EEOC.

Last fall the EEOC published an informal letter on the topic, giving guidance on when requiring a high school diploma is permissible. A qualification standard “…such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

In plain English this means if an employer adopts a high school diploma requirement for a specific job, and the requirement “screens out” individuals who are unable to “…graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma. “  At this point, "...the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process."

Don’t panic. The EEOC letter clearly indicates employers are not prohibited from adopting a high school diploma job requirement, and no changes will be necessary in the vast majority of cases. However, employers must use caution, and carefully consider the legitimacy of the diploma requirement in light of the job duties, and respond appropriately to an applicant who indicates they were unable to achieve a high school diploma due to a learning disability.   

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This week the EEOC filed discrimination charges against Kaplan Higher Education Corporation, alleging the use of credit checks to screen job applicants was discriminatory. Kaplan had rejected job applicants based on their credit history since at least 2008. According to EEOC, the practice had a disparate impact on black job applicants, and was not job-related or justified by business necessity.

This is actually the second recent claim against an employer who used credit checks to reject job applicants. Last month, similar charges were filed in federal court in a class action lawsuit against the University of Miami. There the job applicant had been offered a job, and quit her previous position. She was then informed she would not be hired due to her credit score.

Plaintiff’s attorneys are actively seeking class action clients who may have been rejected for a job, based on their credit score. According to the EEOC, the problem with using credit checks to screen applicants is that they are not recognized as predictors of job performance. Given the present economy many consumers have struggled with debt and their credit scores have suffered. Coupled with potential errors in credit reports, their use in making job decisions should be carefully scrutinized.

Unless an employer is hiring a CFO, or an accountant, credit scores simply do not meet the job-relatedness and business necessity tests necessary to avoid discrimination charges. Employers should rely on more reliable predictors of job performance to make their 2011 hiring decisions.  This may mean different screening and hiring processes based on individual job descriptions.

The EEOC reports, “Workplace discrimination filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.” I predict this number will increase in 2011, and we will see more discrimination claims concerning the use of credit reports as well as an expansion to include other automatic job screening exclusions such as the use of criminal arrest records that don’t result in a conviction.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link