Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

This post was written by Sherri A. Affrunti and E. David Krulewicz.

Responding in part to a 2007 study which found that New York employees were largely unfamiliar with State laws regulating an employer’s use of past convictions for employment-related decisions and in support of the State’s goal to prevent discrimination on the basis of criminal records, the New York Legislature recently amended the State’s general business and labor laws to require employers to disseminate and post notice to job applicants and employees of their rights with respect to, and an employer’s limitations on the use of, information on criminal convictions. The posting and notice requirements take effect on February 1, 2009. 

Background 

Section 296 of the New York Executive Law makes it unlawful for an employer to deny employment to an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of New York’s Correction Law Article 23-A (Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses). N.Y. Executive Law § 296. 

Under Article 23-A, employers of 10 or more employees are expressly proscribed from making adverse hiring or termination decisions based upon an individual’s conviction record unless: (1) there is a direct relationship between the prior criminal offense(s) and the specific employment position sought or held by the individual; or (2) hiring or continuing to employ the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before determining that an individual’s criminal conviction record bars employment or continued employment, Article 23-A requires that those employers carefully consider each of the following factors:

• New York’s public policy encouraging the employment of previous convicts;
• The specific duties and responsibilities of the employment position sought or held by the individual;
• The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual’s fitness or ability to perform one or more job duties or responsibilities;
• The time that has elapsed since the occurrence of the criminal offense(s);
• The age of the applicant or employee at the time of the conviction;
• The seriousness of the offense(s);
• Any information produced by the person or on his or her behalf, regarding rehabilitation and good conduct; and
• The employer’s legitimate interest in protecting its property as well as the safety and welfare of its employees and clients as well as the general public.

Notably, an employer must also give consideration to any certificate of relief from disabilities or certificate of good conduct issued to an individual, which certificate, by law, creates a rebuttable presumption of rehabilitation regarding the offenses to which it relates. 

N.Y. Correction Law § 750, et seq.

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Acting swiftly on one of his campaign promises, President Obama today signed the Lilly Ledbetter Fair Pay Act (S. 181). The new law will increase the number of pay discrimination claims, make them much more difficult to defend, and force employers to retain records relating to compensation decisions far longer than they have in the past. In addition, the Act creates a strong incentive for management to review any current disparities in pay or benefits between two employees who hold similar jobs, to be confident that such differences were and are based on legitimate factors rather than a discriminatory decision that may have occurred years ago.

Federal discrimination laws generally require employees to file charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 or 300 days after the alleged discrimination occurs. That deadline allows such claims to be resolved relatively quickly, while the evidence is fresh and witnesses are available. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the U.S. Supreme Court, emphasizing the importance of the deadline, held that the period for challenging pay discrimination starts to run when an employer first makes the allegedly discriminatory decision, not each and every time that the employee later feels the effect of such a decision by receiving a paycheck.

The Ledbetter Act overturns that approach. The period for filing a charge now starts to run not only when an allegedly discriminatory compensation decision or practice is first adopted, but also each time that an individual becomes subject to or affected by application of such a decision or practice, “including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or practice.” The new law, which takes effect today and retroactively applies to any claim filed since the Ledbetter case was decided, amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973, and thus applies to compensation discrimination based on sex, race, national origin, color, religion, age, and disability.

The new law creates substantial challenges for employers, in that they will now be forced to reconstruct and defend compensation decisions made years ago by persons likely to have forgotten what happened – even assuming that such witnesses are still alive and can be found. For that reason, employers now have a strong incentive to document any and all decisions that may affect compensation – such as why they paid a new employee more than an existing one, or why a supervisor gave one employee a better review than another – and to retain all such records much longer than is legally required. Finally, employers may want to evaluate any current disparities in pay and compensation between employees who hold the same job in order to be able to defend such differences as legitimate.

Congress is soon expected to place even greater emphasis on pay discrimination by passing the Paycheck Fairness Act, which was approved by the House of Representatives earlier this month but has not yet been voted on in the Senate. That law would allow plaintiffs bringing Equal Pay Act claims to recover unlimited compensatory and punitive damages, make it far easier for them to bring class actions, and prohibit employers from taking action against most employees because they have asked about, discussed, or disclosed any employee’s wages.

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The European Court of Justice has ruled that workers on long term sick leave will not lose their right to holiday pay where they have been unable to take the holiday by virtue of being on sick leave. This decision is very unwelcome to employers as it will increase the cost of both continuing to employ workers on long term sick leave, and also on termination of their employment. Read on to see what we think this means for employers in practice.

Gerhard Schultz-Hoff (C-350/06) v Deutsche Rentenversicherung Bund, and Mrs C. Stringer and Others (C-520/06) v Her Majesty’s Revenue and Customs

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In another victory for employees, the U.S. Supreme Court has ruled unanimously that employees who answer questions in an employer’s internal investigation of possible harassment or discrimination are protected from retaliation for doing so, even though they did not come forward to complain. Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee, No. 06-1595 (Jan. 26, 2009).

The case involved a school system’s internal investigation of a sexual harassment complaint brought against an employee relations director, in which the employer interviewed several of the complaining employee’s co-workers. In answering the employer’s questions, one of those co-workers, Vicky Crawford, mentioned that the director had engaged in what the Court described as “gross clowning” and “sexually obnoxious” behavior toward her. The employer reprimanded the director, but later fired Crawford for alleged embezzlement. Crawford sued under that part of Title VII of the Civil Rights Act of 1964 which prohibits retaliating against employees because they have “opposed” discrimination, claiming that her termination was motivated by her statements during the investigation. The employer argued that although the law protects employees who oppose discrimination by bringing complaints, an employee who merely answers questions has not “opposed” anything. The Sixth Circuit Court of Appeals sided with the employer.

In reversing the lower court, the Supreme Court described that distinction as “freakish.” The Court rejected as speculative the employer’s argument that transforming every witness in an internal investigation into a potential retaliation plaintiff would deter employers from conducting thorough investigations. Citing its earlier cases, the Court held that employers would continue to have “a strong inducement to ferret out and put a stop to” discrimination in order to avoid liability. Allowing employees to be punished for answering questions in internal probes, the Court said, would render such investigations virtually useless by making employees afraid to participate, making it more likely that unlawful discrimination and harassment would continue.

The Court thus reemphasized that management has a powerful incentive to promptly investigate possible harassment or discrimination. In doing so, however, employers may wish to take greater care in deciding who to interview. For instance, unless it is reasonable to expect that such an employee may have relevant knowledge, an employer may want to think twice about interviewing someone whose job is in jeopardy, out of concern that if the employee is terminated soon after being interviewed, he or she will have a ready-made retaliation claim. At the same time, if an employer passes over employees who may shed light on what happened, it runs the risk that a judge or jury will find that it failed to take adequate steps in ferreting out a problem. It is thus more important than ever for employers to carefully plan their investigations, including which employees should be interviewed.

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The Regulations bringing parts of the Employment Act 2008 into force on 6^th April 2009 also introduce transitional arrangements for the removal of the statutory dispute resolution procedures. These regulations provide for one set of arrangements for dismissal and disciplinary actions, and another for grievances. These changes will be important for all HR managers and line managers. In particular, the transitional arrangements relating to grievances may catch many employers out in the year ahead.

The Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008

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On October 9, 2008, Governor Ed Rendell provided a victory for nurses’ unions by signing the Prohibition on Excessive Overtime in Health Care Act. The Act prohibits employers from mandating overtime for direct patient caregivers, including nurses and nurses’ assistants, in Pennsylvania’s hospitals and health care facilities. Effective July 1, 2009, hospitals and health care facilities will be prohibited from requiring nurses and nurses’ assistants to work hours beyond a predetermined, regularly scheduled daily work shift. The Act also includes an anti-retaliation provision, which prohibits employers from retaliating against workers who refuse to work extra hours.

The new law contains a relatively narrow exception, permitting employers to mandate overtime in certain unforeseen emergency circumstances. These circumstances include the following:

• A declared national, state or municipal emergency
• A highly unusual or extraordinary event that substantially affects the provision of needed health care services or increases the need for health care services
• An act of terrorism
• A natural disaster
• A widespread disease outbreak
• An unexpected absence, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer, and which could significantly affect patient safety. (This cannot be used to overcome habitual short-staffing.)

If such an emergency occurs, the employer is permitted to mandate overtime as a last resort and only after: (1) exhausting reasonable efforts to obtain other staffing; and (2) providing the employee with up to one hour to arrange for the care of the employee’s minor child, or elderly or disabled family member.

While the statute does not address whether this Act supersedes any provisions in an existing collective bargaining agreement that permits an employer to mandate overtime, the legislative history and prior case law suggest that such a provision would continue “as is” until the expiration of that labor agreement.

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Just a few days after starting its new session, Congress has moved to substantially expand employees’ rights and remedies in pay discrimination cases. On Jan. 9, 2009, the U.S. House of Representatives passed the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12), largely along party lines, and then combined them into a single piece of legislation (H.R. 11). Identical bills have been introduced in the Senate, and a vote there is expected later this month. Taken together, the bills would make it easier for plaintiffs to establish pay discrimination, significantly expand the number and size of class actions in such cases, and expose employers to unlimited compensatory and punitive damages even if they never intended to discriminate. President-elect Obama supports the legislation.

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Regulations to amend the 2004 Employment Tribunal Rules of Procedure have been laid before Parliament and will come into effect on 6^th April 2009. These changes will be relevant to all practitioners and HR managers involved in Tribunal proceedings – take note in particular of the changes regarding making a request to extend time for filing a Response.   

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008

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Some important legislative changes are planned for 2009, including the abolition of the statutory dispute resolution procedures and the extension of the right to request flexible working for parents with children under 16. Read on for a summary of these and other expected developments which may affect your business in the year ahead.

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