Unlawful Background Screening

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The U.S. Equal Employment Opportunity Commission (EEOC) recently obtained a settlement of over 1 million from an international car company for unlawful background screening. This is one of the first ‘race discrimination’ cases of this kind by the EEOC since it updated its guidance on the use of arrest and conviction records in 2012.

The car company’s criminal background screening policy disqualified from hire anyone with a criminal conviction for specified crime categories, including misdemeanors, no matter when the conviction occurred. According to the EEOC, 80% of these disqualified workers were African-American.

Employers need to ensure background screening policies are job-related and necessary for the company. Under federal law, a company may choose to use criminal history as a screening device in employment but Title VII requires that when a criminal background screen results in the disproportionate exclusion of a certain race of individuals from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity. The company had to pay a seven-figure settlement, change its criminal background screening guidelines, and offer job opportunities to the affected workers.

Disability Accommodation After Termination Ruling

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Sixth Circuit Court of Appeals recently held that asking for a disability accommodation after an employee was terminated for misconduct did not require an employer to reinstate the employee or consider the accommodation request.

Employee worked in retail appliance store and had conflict with co-workers. After store had closed, employee returned and surveillance cameras showed employee running and wandering around the store, and using store computers. He later left and locked up without setting the alarm. Employer terminated the employee for failing to follow safety procedures.

After the termination decision was made, but before the employer could reach and inform the employee, the employee had emailed the employer stating he was in a psychiatric hospital and asked to keep his job. Employee was diagnosed with Bipolar I Disorder and requested reinstatment and a leave of absence for treatment, which the employer denied.

Federal Court of Appeals held the employer had legitimate non-discriminatory business reasons for the termination, and the request for accommodation came too late. Since the employee had already committed the misconduct that was cited as the reason for his termination, the employer was not obligated to rescind the termination or engage in any further discussion with the employee about his requests for accommodation.

[Yarberry v. Gregg Appliances, Inc. (6th Cir. 2015) no. 14-3960

California Supreme Court Guidance on Meal & Rest Breaks

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Brinker Decision Provides Guidance on Meal and Rest Breaks

The California Supreme Court has finally issued its long awaited ruling in Brinker Restaurant Corp. v. Superior Court, finding that employers must provide but need not ensure that employees take meal periods.

It has been three and a half years since the California Supreme Court granted review of the Court of Appeal’s decision in Brinker, and it was well worth the wait for California employers. In its new ruling, the Supreme Court provides significant clarification regarding employee rights to meal periods and rest breaks in California, including the following:

Employers Must Provide But Not Ensure That Employees Take Meal Breaks:

Employers have an obligation to provide meal periods to employees working five or more hours, absent a written on-duty meal period agreement if circumstances permits, or absent consent to a mutually agreed upon waiver if the shift will end in less than six hours. During such meal periods, the employer must relinquish control over the employee and relieve the employee of all duties. However, the employer is “not obligated to police meal periods and ensure no work” is performed.

Meal Breaks Must Be Commenced by the End of the Fifth Hour of Work:

The Brinker Court addressed for the first time the timing of meal periods, ruling that the first meal period in a shift must start after no more than five hours. Employees that work more than ten hours must receive a second meal period that begins by the end of the tenth hour. The Court rejected the “rolling five” argument that the second meal period must occur within five hours of the first meal period.

Scheduling of Rest Breaks:

The Supreme Court further clarified the scheduling of rest breaks as follows: “Employees are entitled to 10 minutes rest for shifts from 3½ to 6 hours in length, 20 minutes for shifts of more than 6 hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” Employers must make a good faith effort to permit rest breaks to occur in the middle of each work period. However, the Supreme Court confirmed that employers have some flexibility where practical considerations may cause such rest breaks to deviate. The Supreme Court also confirmed that there is no requirement that employees receive a rest period before any meal period occurs.

Effect on Premium Pay:

Employers need not ensure that employees take a meal period, and thus employers will not owe premium pay (an extra one hour’s wage) merely because the employer had knowledge that the employee chose to work during the meal period. If an employer relinquishes control and relieves the employee of duty during a meal period, no premium pay is owed. Premium pay for meal periods will only be due if the employer fails to relinquish control, fails to relieve the employee of duty, or pressures employees to perform their duties in ways that omit breaks.

Effect on Class Actions:

The Brinker Court issued clarification regarding the standards for determining whether claims involving meal and/or rest breaks should proceed as class actions. As a result of the Supreme Court ruling, it will be much more difficult for employees to certify a class action with respect to meal period claims, because individual questions of fact are more likely to predominate under