Human Resources and Workplaces

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A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive.

We started HRLawMatters.com because we recognized how important the Labor & Employment laws that Human Resources professionals have to understand and contend with every day really are to their businesses’ success.  We think many of you agree, as do your companies.  I noticed recently one company that looks like it really gets that human resources and the law really matter, and what they did that signals that they “get it” is a bit unusual.

You may be familiar with the Computer Fraud and Abuse Act (CFAA) – a federal law that was intended to target hackers seeking access to protected computers (i.e., governmental or financial services industry computers) in order to access confidential information or to distribute worms or viruses.  Since its enactment, however, the CFAA has been repeatedly amended to add greater protection for privately-maintained computers, a private right of action for civil remedies, and to adapt the statute to the Internet age.  As it reads today, the CFAA provides that “[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”

You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks.  Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.

The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin.  As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class.  The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin.  However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.

Name:  Rachel Fletcher
Title:  Director of Human Resources
Company:  Colliers International – Atlanta Realty, LLC

1.  How many years have you been working in HR?  4

2.  Favorite thing about working in HR?  There are many things!  The main two I equally enjoy are solving problems and the diversity each day.

3.  Best piece of advice you ever received about a career in HR?  HR is about dual focus, the employee and the business.

A few weeks ago, our colleague posted about whether obesity would become a protected class.

Biases based upon appearance don’t end with obesity.  Studies show that:

Can our current set of federal, state, and local discrimination laws and regulations properly address appearance-based discrimination?  Or does this bias demand that unattractiveness be made a new protected class?

Our Troutman Sanders LLP Labor & Employment Group just sent out an Advisory on the NLRB’s Union Rights Poster Rule.  In a nutshell, the Rule — which requires employers to put up posters informing employees of their rights under the National Labor Relations Act — was supposed to go into effect on April 30, 2012.  However, a federal district court last week found the rule to be invalid.

We often hear that certain employer actions are “illegal.”  Sometimes employees think so, sometimes its supervisors, and occasionally its even HR professionals (or even non-employment lawyers dabbling where they shouldn’t.)  While some employer actions are legally prohibited, below are a few actions often thought to be illegal that are actually legal.  Of course, these actions are often terrible ideas — and easy ways to get sued.

What does it mean to provide a “safe” workplace?

For careful employers, the concept of workplace safety is not limited to preventing accidents (slips, falls, and equipment injuries) that lead to workers’ compensation claims.  Employers must also consider the threat of workplace violence, which usually takes one of three forms:  (1) violence between co-workers; (2) violence between employees and customers; and (3) violence between employees and the general public.  Each industry faces unique challenges in preventing workplace violence.  Let’s consider two examples – a bank and a hospital. The bank is likely to be more concerned with preventing a robbery than the hospital.  On the other hand, the hospital may focus more on protecting employees from potentially violent patients.  In both examples, the careful employer must take reasonable steps to assess and prevent violence against employees.