When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.” The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.
Yesterday, the Supreme Court of the United States issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc., where it addressed questions surrounding the obligation of an employer to make a religious accommodation. The decision is an important one, so an understanding of what the Court exactly concluded and how its dictates should be adopted for employers on a day-to-day basis is essential. In order to truly gain that understanding, though, let’s briefly take a bit of a bigger-picture look at the issue of religious accommodation in general first.
On February 25, 2015, the United States Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc, a case where religious articles of clothing have come to clash with an employer’s neutral dress code policy. In this case, a Muslim teenage girl applied for a job at an Abercrombie & Fitch store. Abercrombie requires all of its employees to adhere to a “Look Policy” which, among other things, prohibits wearing black clothing or headgear. Consistent with her religion, the applicant normally wore a hijab, a type of headscarf, for modesty purposes. The applicant’s headscarves, however, were different than those frequently worn by devout Muslim women. Unlike others, her headscarves did not cover her neck, were not tightly bound, and were often bought at ordinary mall clothing stores.
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
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.