February 24, 2015

From Employment Law Daily - Strategic Perspective

by Pamela Wolf, J.D.

Last month, Polsinelli held the first in a year-long series of webinars focusing on the full range of considerations that employers face at each stage of employee development, and how new legal regulations affect best practices from hiring to termination. The firm’s ‘Lifecycle of an Employee’ Webinar Series targeted the recruitment and talent acquisition part of the employee lifecycle.

Unique approach. The webinar series takes a unique approach to discussing the tapestry of legal compliance issues facing employers today. Polsinelli Shareholder Eric Packel, who moderated the first in the series of webinars and will do so again for the second segment, explained its “novel and fresh approach:” “Instead of focusing on a particular law from the eyes of counsel, we wanted to develop a series looking at it from the employer’s viewpoint.” To that end, Polsinelli began the webinar series at the outset of the employment/hiring process. “As we proceed through the series, we will pause at each step in the employee’s lifecycle and discuss various employment laws and the interaction they have with the employee’s ‘lifecycle,’” he explained.

Why are you hiring? According to Packel, the first real step in the lifecycle of an employee, from the employer’s perspective, should be the question of why the employer is hiring: Was someone terminated? If so, why? If it was due to poor job performance, are there things that the company can do better to train its employees? Is the terminated employee similar in age, religion, gender, race, etc. to other recently terminated employees?

“By asking these questions, we are looking at the lifecycle from the employer’s eyes, but then pausing to discuss how various employment laws come into play,” Packel explained. “For example, we need to look at Title VII and the ADEA to make sure that we do not have a pattern of terminating the same category of individuals. This should be done before we ever begin the recruitment process.” Once that process is begun, employers need to consider how they will go about it: What are the initial steps? What should the Job Description say—should it be all-inclusive, or bare-boned? “These are the types of questions we will address throughout the series, and began addressing in the first segment,” Packel said.

All-important ‘Job Description.’ The opening webinar on recruitment and talent acquisition remains available for viewing. One of the main takeaways from that first segment is the overall importance of the Job Description, Packel said. “It sounds so obvious, but the Job Description oftentimes is not given its due attention,” he said. “The Job Description is a document that will reappear throughout the employee’s employment, and long after if the employee is terminated and brings a [discrimination] charge.”

Packel underscored that the Job Description is not only practically and factually important, but is equally “legally” important. “On the one hand, it provides the roadmap for the employer and the employee. It should tell the employee the primary job duties and essential job functions, as well as certain physical requirements. If written correctly and if thoroughly considered, the Job Description will clearly let the employee know what he/she needs to do to succeed.”

On the other hand, the same Job Description “can be both a sword and a shield in an employment-related lawsuit,” according to Packel. “It will be Exhibit No. 1 in the charge or at trial. Somebody, either the employer or the employee, is going to use that Job Description to prove their claim or defense.” With that in mind, Packel pose a few questions for employers: Does the Job Description accurately explain the job? Does it accurately state the essential functions of the job (ADAAA concerns)? Does it accurately state whether the job is an exempt or non-exempt position (FLSA concerns)? “These are all legal concepts that interact with the Job Description,” he observed. “And, the Job Description will reappear throughout the Webinar series, such as when we discuss training, discipline, and other stages in the employee lifecycle.”

Job Description aids in defense. Polsinelli Shareholder Christopher Swenson, who also spoke at the webinar, elaborated on the vital importance of the Job Description because “it aids in compliance with and defense of claims under a variety of employment statutes including the FLSA and Title VII.” In addition to being a key exhibit in a lawsuit, the Job Description may also be part of an audit response or attached to a demand letter. “The Job Description assists in the determination of exempt versus non-exempt status, although it is not determinative because the Job Description may be different than the actual job responsibilities,” Swenson pointed out. “Many Job Descriptions specifically identify whether the position is exempt from the FLSA or not and may include specific reference to the particular exemption (or the factors related to that exemption). Obviously, misclassification as exempt has consequences for purposes of overtime and minimum wage (assuming there are no other actions that can result in exempt status being lost).”

The Job Description is equally important in the Title VII setting. “Job Descriptions are critical for eligibility and screening as an applicant who is protected by Title VII may claim that he or she was not hired due to his or her protected classification,” Swenson explained. “Assuming the accuracy and validity of the Job Description, if that applicant did not qualify the company will have a significant defense to a claim under Title VII. The same could apply during employment to the extent an employee protected under Title VII is terminated and that former employee claims that he or she was discriminated against based upon protected status. If the termination is supported by the Job Description (e.g. the employee was not performing in accordance with the Job Description), there is a meaningful defense, provided the Job Description is accurate and followed and is applied equally.”

The same logic applies with regard to other federal, state and local laws, according to Swenson: “The same reasons apply under the ADA (essential function analysis), Equal Pay Act, (commensurate compensation for commensurate job responsibilities), and a variety of other state and local laws related to employment. Accordingly, Job Descriptions can serve as a sword or shield, and it is critical that the employer understand the significance of the Job Description, even though Job Descriptions serve many other purposes such as recruiting, marketing, advertising, aligning duties with company goals, screening, performance management, training, employee development, compensation/bonuses, discipline, and return to work.”

What’s the big takeaway? “The Job Description is an early step in the process of minimizing a company’s exposure to claims under a variety of employment laws,” Swenson said.

“Ban the box” laws. Polsinelli attorney Robert Entin, former in-house counsel for a large Chicago labor union, was a presenter in the first Lifecycle of an Employee webinar. He underscored a few important points about employer inquiries into the criminal background of job applicants.

“Employers may want to think twice about asking on an employment application whether a candidate for employment has ever been convicted of a crime,” he warned. “Thirteen states (Hawaii, Minnesota, Connecticut, Massachusetts, New Mexico, Colorado, California, Maryland, Rhode Island, Illinois, Delaware, Nebraska, and New Jersey) have enacted legislation to ‘ban the box,’ prohibiting employers from inquiring into criminal background during the interview process and on the employment application. Some jurisdictions insist that these inquiries are unlawful without first making a conditional offer of employment. In six of these states (Hawaii, Illinois, Massachusetts, Minnesota, Rhode Island, and New Jersey), ‘ban the box’ legislation applies to both public and private employers.”

Entin also noted that many metropolitan cities, for example, Boston, Chicago, New York City, Kansas City, San Francisco, and Detroit, as well as counties, including Alameda County, California; Milwaukee County, Wisconsin; and Fulton County, Georgia, have ordinances that likewise “ban the box.” And, some international corporations, such as Target and Walmart, have “banned the box” on all employment applications—even in states, cities, and counties which do not impose this requirement on employers.

The generally accepted purpose of these laws “is to require employers to consider applicants who may have been automatically disqualified by checking the banned box on applications,” according to Entin. “One in five employees has a criminal record and encounter significant barriers to obtain employment.” Entin pointed to the EEOC initiative, begun years ago, to preclude blanket bans on candidates for employment and to eliminate discrimination in employment. “Hispanics and African Americans are arrested at a rate of two to three times the general population, resulting in a disparate impact for employers who inquire about criminal backgrounds on the employment application,” he noted.

Many jurisdictions with “ban the box” laws include recognized exceptions to their application,” Entin observed. “For example, the health care/long-term care industry, school districts, and law enforcement employees are prohibited from having criminal records,” he elaborated. Violations also differ from state-to-state and range from a few hundred dollars per violation to backpay for the rejected candidate, Entin said.

Next webinar. On Tuesday, March 3, Polsinelli will hold the second in its year-long series of webinars. The second complimentary webinar, Lifecycle of an Employee: Assessment, Selection and Onboarding, will include discussion on these topics:

  • Screening tools, initial testing and background checks 
  • Orientation documents – the I-9 form, E-Verify and other e-forms/data 
  • Arbitration agreements and restrictive covenants, including EDR/ADR programs 
  • Employee handbooks and policies, including protecting company intellectual property 
  • Provision of SPDs and the execution of beneficiary designation forms