Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court. Typically, however, employers confront allegations of retaliation only from current or just-made-former employees. Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances.
Many employers understandably want to perform a criminal background check on potential employees. It is possible for employers to lawfully ask about criminal convictions on applications or to administer a criminal background check. However, it is not “open season” on criminal background checks, and you need to be careful when conducting this kind of inquiry.
The Pennsylvania Superior Court recently ruled in Socko v. Mid-Atlantic Systems of CPA, Inc., that non-compete agreements signed during employment are not enforceable unless the employer provides its employee additional consideration in exchange for signing.
The Sixth Circuit Court of Appeals — encompassing Michigan, Ohio, Kentucky, and Tennessee — recently affirmed a trial court’s dismissal of a lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”), which alleged that an employer’s use of credit checks to screen potential employees for certain positions unfairly discriminated against African-Americans. This was a major victory for employers, who, as we discussed in a previous blog, are in a “damned if you do, damned if you don’t” situation when it comes to background checks.
In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”). The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire. With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination. Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.
We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.
All HR professionals know that having candidates complete an employment application is a very important step in the hiring process. Employment applications not only collect employment history and educational information on potential candidates, but can also be used to inform applicants of the company’s equal employment opportunity and at-will employment policies. Even if an employer requests that candidates submit a resume for a position opening, the completion of an employment application at the interview meeting should be standard hiring practice for all companies.
This shouldn’t be a newsflash, but employers have been performing background checks as part of the hiring process for quite a long time. Lately, the practice has become even more common, since information is more readily available in the internet age. Most employers use these checks to help ensure they hire the best qualified employees; some employers are required to use them under federal or state regulations governing their industries.
Employers who have yet to put the Genetic Information Non-Discrimination Act (“GINA”) on their radar should probably re-consider their priorities. The Equal Employment Opportunity Commission (“EEOC”) is already at the point where the agency isn’t just bringing suits to enforce violations of that law, it is now settling them.