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.”

Late last week, a jury in Missouri awarded $5 million in punitive damages to a woman who proved she was subjected to a hostile work environment because she converted to Islam.

According to published reports, the woman, who was a network technician for a telephone company, had been in her job for six years when she converted to Islam in 2005.  Soon after converting she was subjected to name-calling (such as “terrorist”) and being told she was “going to hell” by co-workers and managers.  A manager also pressured her to remove the hijab (head scarf) she wore to comply with her religion and even grabbed it off of her head one time.  This behavior went on for 3 years. 

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.

If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again.  Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.

In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation.  It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns.  However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking.  The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.

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.