Human Resources and Workplaces

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Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 

Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea?

A few years ago, the New York Times ran an article about investigations into the legality of unpaid internships at for-profit businesses, explaining that such investigations were being conducted by the U.S. Department of Labor, as well as by the labor departments of several states, including California, Oregon, and New York.

At that time, many practitioners expected that there would be a tidal wave of class action lawsuits brought by former unpaid interns but, surprisingly, that wave did not come…until now. 

The California legislature recently passed a bill prohibiting employers – with some specific exceptions – from obtaining and using credit reports to screen candidates and employees. Check out this report at Law360. California becomes not the first, but the sixth state to have passed similar legislation, joining Hawaii, Washington, Oregon, Illinois and Maryland. Even more states are considering similar restrictions, and there’s even a proposal before Congress that would do the same thing on a national level. What else? Oh, the EEOC takes the position that the use of credit reports may be biased against minorities and females. Here’s the EEOC’s official take. So, not only may using these reports be unlawful in many states, but you could also face charges of discrimination over the use of credit reports. Finally, don’t forget that the bankruptcy code, which applies nationwide, prohibits an employer from discriminating against an employee on the basis of bankruptcy – basically, you can’t fire someone solely because of a bankruptcy, whether your business is a financial institution or not.

We have all heard the phrase “I’m from the government and I’m here to help.”  There are many different reactions to that phrase:  some are appreciative, some are cynical, and some are not appropriate to be repeated in this blog.  One recent effort to help by our federal government is sure to receive those varied reactions – and is also certain to bolster lawsuits against employers that are not meticulous about recording their employees’ hours and correctly paying their wages. 

Who in HR can say they have not been tempted to “spy” on an employee on Family and Medical Leave Act (“FMLA”) leave to make sure that they are not faking it?  Wouldn’t it be great to catch that employee you are sure is lying as he is playing golf when he should be home recovering from his back surgery? Or catching the employee on leave supposedly recovering from a hysterectomy right after she returned from a week-long vacation in Mexico?

Surely, under these circumstances you could safely terminate the offending employee…couldn’t you? 

You may have seen a recent news item about a woman who claims her supervisor told her to “change your bra, or you don’t have a job.”  No, this is not one more episode of sexual harassment in the workplace.  Instead, it is a somewhat awkward, perhaps amusing (at least for those not involved), definitely unique workplace situation – another example of why being an HR professional is never boring. 

There are plenty of HR professionals who do not deal with a unionized workforce.  Certainly some of them have an understandable tendency to gloss over matters concerning the National Labor Relations Board and similar topics.  The current NLRB (with three recent appointees of President Obama) wants you to pay attention to them, and is taking steps to make themselves and potential unionization issues relevant to every workforce.

Below is an Advisory that was issued this afternoon by Troutman Sanders’ Labor & Employment Group that shows how the NLRB intends to exert its influence onto every employer.  All HR professionals need to stay alert, pay attention, and tune in to these issues, even (and perhaps especially) if you do not have unionized employees.

Do you enjoy updating your résumé?

If your answer is “No,” you may be pleased to hear that some companies no longer ask for a résumé.  As explained in a recent article in the Wall Street Journal, a number of technology firms do not require job applicants to submit résumés.  These companies are more interested in the applicant’s “web presence,” which can include Twitter feeds, LinkedIn accounts, or Youtube video profiles.

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a new strategic plan for 2012-2016, which is designed to maximize its resources.

The new strategic plan contains two aspects that are of particular interest to HR professionals:

(1)    the EEOC will focus its efforts on systemic discrimination cases rather than individual discrimination cases; and

(2)    the EEOC will focus its education and outreach efforts on small and new businesses.