Court Finds Reassignment Ordinarily Is a Reasonable Accommodation For Workers with Disabilities

EEOC Press Release, 9-13-2012

Chicago -- The U.S. Court of Appeals for the Seventh Circuit reversed the dismissal of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) against airline giant United Airlines Inc. The circuit court overturned precedent to agree with the EEOC that "reasonable accommodation" as defined by the Americans with Disabilities Act (ADA) may require employers to provide employees with disabilities with "reassignment to a vacant position" when the employee cannot be accommodated in his or her current position.   

The EEOC's suit charged that United violated the ADA by refusing to place workers with disabilities in vacant positions for which they were qualified and which they needed in order to continue working.  Instead, UAL required these employees to compete for jobs on the company website.  The company's practice frequently prevented employees with disabilities from continuing their employment. 

In June 2009, the EEOC filed the original lawsuit in the Northern District of California based on its investigation of a number of discrimination charges filed by United employees located in San Francisco and Chicago.  United successfully moved for a change of venue to the Northern District of Illinois, where an earlier Seventh Circuit case, EEOC v. Humiston Keeling, 227 F.3d 1024 (7th Cir. 2000), had already held that a competitive transfer policy did not violate the ADA.  In February 2011, the lower court, bound by this precedent, dismissed the EEOC's case against United.  

On appeal, however, the Seventh Circuit agreed with the EEOC that Humiston Keeling "did not survive" an intervening Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002).  The Court of Appeals held that "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer." 

"The Court's decision will have far-reaching benefits for individuals with disabilities who strive for economic independence and want to work," said EEOC General Counsel David Lopez. "We are pleased that the case may now go forward." 

EEOC San Francisco Regional Attorney William R. Tamayo said, "We anticipate that numerous employees at United locations nationwide may have a claim in this systemic case.  This case will allow them to seek reassignment and continue their careers with United."   

EEOC Appellate Attorney Barbara Sloan added, "In defining 'reasonable accommodation' to include 'reassignment to a vacant position,' Congress clearly intended to ensure that employees with disabilities remain productive workers even when they can no longer do their current jobs due to disability -- as long as reassignment is possible and poses no undue hardship.  With its decision, the Seventh Circuit joins the D.C. and Tenth Circuits in implementing Congress's intent."  

According to the company web site, United Airlines has almost 50,000 employees in every U.S. state and in many countries around the world.  The air carrier operates air travel hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.  United is one of the largest international carriers based in the United States.  

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov. 

Should You Tell Your Employer About Your Side Job?

Source:  Rebecca Thompson, U.S. News and World Report, August 9, 2012

Low wages, pay freezes, and the threat of layoffs mean that for many employees a second job is a necessity. But does your employer agree?

While a side job can mean the difference between "making it" and financial ruin, companies have become more stringent in regulating what their employees do outside of work. Some organizations prohibit side jobs altogether, while others enforce disciplinary action ranging from immediate dismissal, to a written reprimand, to a demotion.

From a company's perspective, it's for good reason. But don't allow your employer's policies and red tape to scare you away from creating financial padding and learning new skills. Whether you take on additional work as a freelancer, consultant, floor salesperson, or start selling your handcrafted goods, moonlighting can be your path toward building a better future.

If you decide to set up shop outside your current workplace, set up a meeting with your boss first. You need to request approval even if there are no explicit policies regarding side jobs in the employee handbook. (Hint: And if a second job is clearly prohibited, you can still ask.) Don't risk getting fired or losing extra income over a simple five-minute conversation. Here's how:

Know Why Your Company is Worried

Employers typically don't see any advantages to their employees working side jobs, but it can be beneficial for both employer and employee, stimulating creativity, motivation, and new ideas. The key is to keep the focus on your current position:

Put the company first. Most employers want to hear that you'll continue to put your job at their company first. Assuage your manager's concerns by letting her know you won't work at your second job during office hours and that you'll still be able to work overtime during periods of heavy work. Show your commitment to your current position as a priority.

Lay out how you'll remain effective. Your boss doesn't want you to be overwhelmed and fatigued just because you're workingmultiple jobs, so lay out the strategies that will allow you to remain just as effective as you are now. Don't talk about the new job; discuss how you'll continue to rock your current one.

Keep quiet about confidential information. A small number of companies will be concerned that you'll leak confidential, in-house information, particularly if your side job is utilizing the same skills that your existing job does. If you can't get permission to work in the same vertical, try a side job in a different arena all together.

Act as a good representative. What you do off-hours can seem like none of your employer's business, but it is, especially if what you're doing could be deemed offensive to your employer's customers. Make sure that whatever side job you choose won't put you in an awkward position with any of your company's clients, partners, or customers.

These tips should get you quick approval to take on the side job you've been dreaming about. If you can't get approval however, consider volunteering or taking a career development class. While many employers won't support you getting paid to expand your skill set, they will endorse broadening your horizons in general.

Tuesday Morning’s ousted CEO files discrimination charges against the furniture retailer

From:  The Washington Post, August 3, 2012
By:  Associated Press

The ousted CEO of furniture retailer Tuesday Morning Corp. has filed discrimination charges against the company, saying she was sent packing after the board learned she had breast cancer.

Kathleen Mason also is seeking unspecified damages and her old job back. The discrimination charges were filed with the Equal Employment Opportunity Commission in Dallas.

A representative for Tuesday Morning declined to comment.

Mason’s attorney, Rogge Dunn, said board members’ attitude toward Mason changed after she disclosed she had cancer. He says one board member even made a sarcastic comment about her wig.

The Dallas-based discount retailer announced in June that it was firing Mason, who had been CEO since 2009. It lowered its financial outlook at the same time.

In announcing Mason’s firing, the company said it was time to transition leadership to a “new executive who will guide the company through its next stage.” It promoted Michael Marchetti, its executive vice president and chief operating officer, as interim CEO. Mason said at the time that she was surprised by the move.

Tuesday Morning, which sells closeout housewares and home decor, reported in April that its third-quarter loss widened as fewer people visited its stores and bought less each visit. The company had planned to revamp its website and improve its marketing to help improve slowing sales.

Dunn says that Mason informed the board of her cancer so they wouldn’t be alarmed if she began losing her hair or growing gaunt as a result of treatment. But he said the board’s attitude toward Mason soon began to change and she was fired less than three months later.

Board members started contacting Mason’s subordinates directly, which they hadn’t done before, Dunn said. In March, he said one board member made a sarcastic comment about how nice Mason’s hair looked; she was wearing a wig at the time.

“One of the reasons Kathleen is doing this is not just for herself, but for others in the workplace,” Dunn said. “A lot of times there’s overreaction and misunderstanding by employers about cancer.”

Tuesday Morning has about 850 stores across the country.

As U.S. wages rise, gender gaps remain

Article by: DEE DePASS, Star Tribune

The nation's weekly wages rose 2.4 percent in the second quarter from a year ago, but that didn't erase big income gaps between male and female factory workers and managers, according to a government report released Wednesday.

American wages and salaries rose to $771 per week during the quarter. But female plant workers made just $505 a week, compared with the $716 earned by men, according to the U.S. Labor Department. Wage disparities on the state level are not yet available.

The disparity in management wages for all industries were even broader, showing men earning $1,342 a week compared with women who earned $945 a week.

Across all sectors and occupations, the report found that "women who usually worked full time had median weekly earnings of $689 or 79.7 percent of the $865 median [wage] for men."

Upon learning the results, Oriane Casale, assistant director for Minnesota's Labor Market Information Office, said "Wow, that is a big jump," and noted that the gender wage gaps were large.

Some of the national gender gaps have to do with the recession, she said. While male factory workers lost ground early in the recession, manufacturing, especially of durable goods like washing machines and cars, is "coming back like gangbusters." That has benefited men.

By contrast, more women lost ground later in the recession when layoffs spread to sectors such as law firms, schools, and hospitals, Casale said.

But on the national front, the manufacturing industry provided a host of possible reasons for wage disparities. Casale noted that men and women often hold different jobs within specific manufacturing companies, and that can affect pay.

For example, metal manufacturers tend to require higher skills, pay more and are heavily represented by male workers. But chicken processing, canning and other food processing plants have a more balanced gender mix, lower skill requirements and many more female workers.

Another ingredient contributing to wage gaps has to do with age and experience, Casale said. "If you have an older, male workforce versus a younger, female workforce you could see some wage differences there" simply because more experienced workers tend to be paid more.

Other economists noted that Wednesday's report showed that wages were rising faster than inflation. Wages for all workers climbed 2.4 percent, compared with a 1.9 percent rise in the urban consumer price index.

Is taking work home overtime? In age of smartphones, remote access to PCs, hourly employees say they are due extra pay

From:  The Columbus Dispatch
By:  Kelly Yamanouchi, Atlantic-Journal Constitution, Monday, July 9, 2012

Those smartphones and BlackBerrys that enable work anytime, anywhere are increasingly blurring the lines between work life and personal life — and introducing the sticky issue of when overtime is owed to workers.

The always-connected worker and the pressures of the uncertain economy have led many to feel that they should always be working — because they can, thanks to the growing use of smartphones. That’s allowing work to bleed into evenings, weekends and even sleep, with some people taking their phones and BlackBerrys to bed with them.

And the situation becomes tricky for hourly employees, who qualify for overtime.

“We’ve gotten into a place in our culture where the more you work, the better it is, and the more you should be proud of it,” said attorney Amanda Farahany. “And so people don’t want to assert their overtime right.”

Overtime laws are abused by companies “on a daily basis,” she said.

But in some cases, that has led to lawsuits, seeking pay for what is sometimes called “ BlackBerry overtime” or “electronic overtime.”

For employers, “that’s an area of exposure, and it’s coming like a freight train,” said attorney David Long-Daniels. By giving hourly employees BlackBerrys or remote access to workplace computers through iConnect or Citrix, “you’ve implicitly told them to work,” he said.

Long-Daniels advises companies not to allow hourly employees and others who qualify for overtime to use BlackBerrys or remote access to their work computers unless the workers are told to record the times when they use the devices, and the company has a system in place to record the hours.

Among the lawsuits over electronic overtime is one filed last year in U.S. District Court in Atlanta against Amerisave Mortgage Corp. by former employees. In the case, which has been granted conditional class-action status, senior mortgage processors claim that they routinely worked more than 40 hours a week without getting overtime pay, and that Amerisave was aware that employees used their phones and other devices to answer calls and email but did not track the time.  Amerisave denies those allegations. The discovery period just ended in that case.

Jason Zulauf and his brother, Jeffrey, who are among the workers suing Amerisave, said they worked on commission and didn’t realize they could qualify for overtime.  Jason Zulauf said the computer system that Amerisave employees used to work from home would automatically clock them out after 40 hours, but they were told by managers to “back down” their hours — or adjust them downward — so they could work more hours to earn more in commissions.

An attorney representing Amerisave, Jeff Mokotoff, said the company has “clear, unequivocal written policies that require the employees to record all the time that they work.”

The Zulaufs said they worked as long as 16 hours a day, six days a week. “We had no life,” Jason Zulauf said. “It took a lot of time away from our families.”

Farahany, who is the  Zulaufs’ attorney, said that “most people don’t realize the rights they have under the overtime laws.”

The overtime law, part of the Fair Labor Standards Act, was enacted during the Great Depression to “make it more expensive for an employer to make one person work more than to simply hire another person,” Farahany said. “Over time, companies have simply eroded that law, and we’re back in a place now where employees are out of work.”

Companies call that increased productivity, a driver of economic growth.

Farahany contends that if companies follow the overtime law, “it will bring people back to work. It worked in the Great Depression.”

The Amerisave case follows similar cases in other parts of the country, including one filed against T-Mobile USA Inc. in 2009, in which employees and former employees alleged that they were given company BlackBerrys or smartphones and “required to review and respond to T-Mobile-related emails and text messages at all hours of the day, whether or not they were punched into T-Mobile’s computer-based timecard system.”

In a complaint filed against commercial real-estate firm CB Richard Ellis, an employee claimed that he and other employees were given BlackBerrys and other devices to access work-related emails.

Congress acts on federal employee bills

From:  The Washington Post 
Posted at 06:00 AM ET, 07/02/2012

By Joe Davidson

 

Just before getting out of town for the Fourth of July holiday, both chambers of Congress and a Senate committee approved separate pieces of legislation Friday that would affect federal employees.
The House and Senate passed a transportation bill that includes a provision to allow phased retirement for federal employees. Employees would be able to work part-time after retirement, with their salaries and annuities pro-rated.

Proponents on both sides of the partisan divide expect the measure to save tax money while providing a way for experienced workers to transfer their skills and workplace knowledge to younger staff.
The Senate Homeland Security and Governmental Affairs Committee gave final approval to bills that would update the Hatch Act, provide agencies with greater power to prevent government contractors from engaging in human trafficking and make it easier for veterans to obtain federal licenses.

The Hatch Act measure would provide a greater range of penalties for federal employees who violate the act. Termination generally is the penalty. The legislation would allow reprimands, demotions and suspensions.

The bill also would ease prohibitions on state and local government employees, whose positions receive federal funding, who run for partisan elective office.

Among other provisions, the End Trafficking in Government Contracting Act of 2012 would require companies with federal contracts worth at least $1 million to certify that they have procedures to prevent human trafficking. This has been an issue for contractors who supply foreign labor for U.S. military bases in Iraq and Afghanistan.

The Veterans Skills to Jobs Act would facilitate employment of veterans by allowing agencies to use the training that veterans received in the military to meet the requirements for federal licenses in certain cases.

The committee gave preliminary approval to the bills Wednesday, but the final vote was delayed until the panel had a quorum on Friday.

General Mills to Cut 850 Jobs, Roughly 425 in MN

From: Twin Cities Business, May 22, 2012, —Nataleeya Boss

General Mills, Inc., plans to cut 850 jobs worldwide, about half of which are in Minnesota, the Golden Valley-based food manufacturer announced Tuesday.

The company said that the cuts are part of a plan to lower costs and “improve organizational effectiveness.”

General Mills employs about 35,000 globally, including about 5,500 in Minnesota. The cuts will mostly affect administrative and support positions, and they include layoffs as well as open jobs that will remain unfilled, General Mills spokeswoman Kirstie Foster told Twin Cities Business in a Tuesday e-mail.

The company said it will invest its savings from the job cuts to support future growth strategies and “to accelerate innovation across General Mills’ global business platforms.”

During General Mills’ third-quarter earnings call in March, CEO Ken Powell told investors that the company has recently experienced “a particularly challenging operating environment with commodity inflation the highest we’ve seen in 30 years.” In addition, slow economic recovery has kept many consumer budgets tight, he said.

The company’s net income during the first three quarters of its current fiscal year totaled $1.2 billion, representing a 16 percent decline from the same period a year earlier. Net income for the third quarter that ended February 26 totaled $391.5 million, almost flat with $392.1 million a year earlier.

Meanwhile, sales for both the third quarter and the first three quarters of the year rose about 12 percent.
In its Tuesday announcement about the job cuts, the company said that its previous earnings forecast for the full fiscal year hasn’t changed, and it expects to earn between $2.53 and $2.55 a share.

Meanwhile, the company plans to invest about $13 million in new production equipment as part of its restructuring plan. It expects the plan to result in total pretax charges of about $109 million, including the investment in new equipment and severance packages for the laid-off employees.

The company said about $94 million of those charges will be recorded in its fiscal fourth quarter, which ends Sunday. The rest will be recorded in its next fiscal year.

General Mills is the eighth-largest public company in Minnesota based on revenue, which totaled $14.8 billion for the fiscal year that ended in May 2011.

Minnesota to Pay Damages, Insurance Coverage to Resolve EEOC Age Discrimination Lawsuit

Published May 3, 2012

By the Equal Employment Opportunity Commission:

The U.S. Equal Employment Opportunity Commission (EEOC) announced today that a federal judge has approved a consent decree requiring the Minnesota Board of Public Defense (BOPD) to make restitution to settle an EEOC age discrimination lawsuit.

The BOPD must pay $53,000 to four former employees who were denied employer contributions for retiree health and dental insurance because they were older than age 55 at the time that they retired.  The BOPD must also to offer to pay future premium costs for one of the employees who would still be entitled to receive them but for the unlawful early retirement provision.

This decree, entered by federal Judge Richard Kyle, resolves the last in a series of cases brought by the EEOC against Minnesota state agencies regarding early retirement incentive plans contained in collective bargaining agreements for certain employees.  The incentive plans provided that the employee had to retire by age 55 to obtain the incentive, and would lose it if he or she worked longer.
For an employee who did retire by age 55, the employer continued to pay the employer’s share of the insurance premiums which generally ranged from 85% to 100% of the total amount of the premium—and continued to do so until the retiree reached age 65.  For an employee who retired after age 55, the employer paid nothing, and the cost of retiree insurance fell entirely on the retired employee.

Thus, explained EEOC Senior Trial Attorney Laurie Vasichek, who led the litigation team on the cases, “Not retiring by age 55 was like stepping off a cliff as far retiree medical insurance was concerned, and the parties to the collective bargaining agreements referred to this provision as the ‘Age 55 Cliff.’”

The EEOC contended that the “Age 55 Cliff” was unlawful age discrimination.  Courts agreed, with the U.S. Eighth Circuit Court of Appeals affirming a judgment by U.S. District Court Judge Paul A. Magnuson, which held that the early retirement incentives were arbitrary age discrimination.

The settlement with the BOPD is believed to resolve the final case in which the “Age 55 Cliff” was challenged.  The EEOC brought cases against six different state agencies in all.  In total, the EEOC obtained, through court judgments and consent decrees, just under $2 million in lost premium contributions, which were distributed to approximately 85 people.  The state also paid the employers’ share of health and dental insurance to those claimants who were eligible for it but for their age.

“As the courts recognized, it is arbitrary and unlawful for employers to maintain incentive plans that explicitly reduce benefits as people grow older,” said EEOC Regional Attorney John Hendrickson.  “Paying benefits for younger retirees while not paying the same benefits for other retirees — merely because the latter were older at the time of retirement — is pure and simple age discrimination, and it is unlawful.  But the situation has now been corrected, and we commend the state of Minnesota for working with the EEOC to resolve these cases.”

In addition to Hendrickson and Vasichek, the EEOC’s litigation team included Associate Regional Attorney Jean Kamp as well as Nicholas Pladson and Jessica Palmer-Denig, trial attorneys in the EEOC’s Minneapolis office.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its website at www.eeoc.gov.

Muslim woman wins $5 million in punitive damages from AT&T in workplace discrimination suit

From:  The Washington Post

By Associated Press, Published: May 5, 2012

KANSAS CITY, Mo. — A former Kansas City woman who converted to Islam in 2005 said she was harassed for years at AT&T, and that the abuse boiled over in 2008 when her boss snatched her head scarf and exposed her hair.

A Jackson County jury on Thursday awarded Susann Bashir $5 million in punitive damages in her discrimination lawsuit, along with $120,000 in lost wages and other actual damages.

The Kansas City Star (http://bit.ly/JKWbqR ) reported Saturday the award appears to be the largest jury verdict for a workplace discrimination case in Missouri history.

Bashir said in court documents that her work environment became hostile immediately after she converted, with her co-workers making harassing comments about her religion and referring to her hijab as “that thing on her head.”

“I was shocked. I thought, ‘What is going on?’” she told the newspaper. “Nobody ever cared what I wore before. Nobody ever cared what religion I was before.”

Bashir worked at AT&T’s office in Kansas City for 10 years as a fiber optics network builder before being fired from her $70,000-a-year job. She claimed she endured religious discrimination nearly every day of the final three years she worked there, including being asked if she was going to blow up the building and being called a “towelhead” and a terrorist.

AT&T said Friday it disagrees with the verdict and plans to appeal.

Despite the jury’s award, Bashir stands to receive much less than $5 million because Missouri law caps such awards at five times the actual damage amount, plus attorney fees.

Amy Coopman, Bashir’s lawyer, said attorney fees will be determined later by the judge.

The previous largest such verdict came in 2009, when Mohamed Alhalabi, an Arab-American Muslim, was awarded $811,949 in St. Louis County Circuit Court in a case against the Missouri Department of Natural Resources.

That same year, a Jonesboro, Ark., jury ordered AT&T to pay $1.3 million to two former employees fired for attending a Jehovah’s Witnesses convention.

Bashir said she called an employee help line in March 2005 and asked the company to provide sensitivity training for her co-workers.

“It was a worthless call,” she said. “Nothing ever changed.”

The harassment continued and in March 2008, the Equal Employment Opportunity Commission launched an investigation after she filed a complaint.

She said that made some workers angry and led to the final encounter with her boss.

Bashir said she became so stressed out that she couldn’t return to work. She asked that her boss be removed or that she be transferred, but neither happened.

She was fired after not returning to work for nine months.

“By firing me, they stole my ability to work at a job I liked,” Bashir said.

She said the incident was hard on her mentally and physically and tore her family apart. She is going through a divorce, and in October she and her daughter moved to Anchorage, Alaska, where she works as an apartment manager.

“I have mixed feelings,” Bashir said. “I’m happy not to be reporting to that management structure. But it’s hard in this economy to find a job with that level of compensation. I didn’t want to lose my job, because I felt I was doing good work.”

Information from: The Kansas City Star, http://www.kcstar.com

 

EEOC discrimination ruling called groundbreaking for transgender job seekers

From:  Star Tribune, Article by: SAM HANANEL , Associated Press, Updated: April 24, 2012 - 9:29 PM

WASHINGTON - In what is being called a groundbreaking ruling, the agency that enforces the nation's job discrimination laws has ruled that transgender people are protected from bias in the workplace.
The decision late last week by the Equal Employment Opportunity Commission (EEOC) said that a refusal to hire or otherwise discriminate on the basis of gender identity is by definition sex discrimination under federal law.

While some federal courts have reached the same conclusion, employment law experts said the EEOC decision is groundbreaking because it sets a national standard that offers employers clear guidance on the issue.

"This decision is important because the EEOC is the agency with lead authority to interpret and enforce the nation's employment rights laws," said Jennifer Pizer, legal director of the UCLA School of Law's Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.

The case involved a California woman who claimed she was denied a contractor job with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) after the contractor learned she had undergone a procedure to change her gender to female.

Mia Macy, an Army veteran and former police detective, initially applied for the position as a man and was told that she was qualified for the job as a ballistics technician. Then she informed the contractor that she was changing her gender. After that, she was told funding for the job was cut. She later learned someone else was hired for the position.

Macy filed a complaint with the ATF, which told her that federal job discrimination laws did not apply to transgender people. The Transgender Law Center, a legal rights advocacy group, took up her case.
The ruling does not yet determine that she was discriminated against but that she can bring a charge of discrimination under the law.

EEOC spokeswoman Justine Lisser said the unanimous ruling from the five-member agency does not create a new cause of action. It clarifies that charges of gender stereotyping are considered claims of sex discrimination under existing law.

Until now, Pizer said, it was common for transgender workers to have their complaints rejected by EEOC regional offices and state civil rights agencies due to confusion about the state of the law. "This is a confirmation that the courts are correct, so public and private employers coast to coast now have the benefit of the EEOC making this clear," she said.

Judge sides with fired Jimmy John’s workers

From:  Star Tribune

Article by: Mike Huglett, Star Tribune, Updated: April 23, 2012 - 9:24 PM

A federal administrative law judge has ruled that a Twin Cities Jimmy John's franchisee violated the union organizing rights of six employees by firing them last year after they publicly protested the restaurants' sick leave policy.

The workers, who were all active in an attempt to unionize 10 local Jimmy John's, must be reinstated to their jobs and given back pay, according to an order late Friday by the Washington, D.C.,-based judge, Arthur Amchan.

"It's certainly a victory," said Erik Forman, one of the fired workers.

MikLin Enterprises, owner of the 10 Jimmy John's, said in an e-mail that, "we respectfully disagree with the [judge's] findings ... and we will decide our next steps shortly."

MikLin, owned by Mike Mulligan and his son Rob Mulligan, can appeal the decision, and Forman said he thinks the company will do so. Reinstatement of the fired workers would be postponed pending an appeal.

Amchan upheld much of a National Labor Relations Board complaint against MikLin. The board's Minneapolis office pressed the complaint after investigating unfair labor practice charges filed by the union against MikLin.

The judge's ruling is the latest turn in an unusual unionization battle pitting the Industrial Workers of the World against the popular sandwich chain.  In October 2010, the IWW narrowly lost a union election to represent MikLin's workers -- 87-85. It was a rare attempt to organize the fast-food industry, conducted by a union outside of the mainstream labor movement and known for grass-roots militancy.  After the election, pro-union workers continued their organizing efforts at Jimmy John's, focusing on MikLin's lack of paid sick leave. MikLin's employees were and still are subject to discipline if they call in sick without finding a replacement, according to Amchan's ruling.

MikLin in an e-mail said its absentee policies are fair and typical for the quick-serve food industry, and called "patently false" any claims that employees are required to work while sick.  Union activists claim that MikLin's sick leave policy gave ill workers an economic incentive to show up for work, thus jeopardizing public health.

Last spring, activist workers put up posters near Jimmy John's outlets, implying that sick employees might be making sandwiches.  The posters featured pictures of two sandwiches with the text, "Can't tell the difference? That's too bad because Jimmy John's workers don't get paid sick days .... We hope your immune system is ready, because you are about to take the sandwich test."

MikLin fired six workers for a "malicious" effort to damage the Jimmy John's brand. But Amchan ruled that the posters were protected speech under the National Labor Relations Act. He also concluded that Rob Mulligan violated labor law by encouraging employees to tear down the posters.

MikLin can appeal the administrative law judge's decision to the full board of the National Labor Relations Board in Washington D.C. If the board rules in the workers' favor, the company can then appeal to a federal court.  The appeals process could take one to two years to play out. "It's pretty frustrating," Forman said.

Mike Hughlett • 612-673-7003

References

The following is taken from the website Workplace Fairness (www.workplacefairness.org)

By:  Bob Rosner

Blacklisted:

• Get a reference in advice.
• Work around a bad reference.
• Hire a reference check service.
• Understand defamation. 

Blacklisted: Is a Former Employer Out to Get You?
Does this sound familiar? You keep getting turned down for jobs in your industry. Suddenly you start to wonder, is this a coincidence or are potential employers scared off because a former employer is saying bad things about me? Unfortunately, blacklisting can and does happen. Which reminds me the an old saying, "You're not paranoid if they really are out to get you."

Paranoid or blacklisted, it's often difficult to sort out what is really happening. But let's start with the law. The Supreme Court in Robinson v. Shell Oil Company (1997) has held that employees can sue employers for retaliatory negative job references under the civil rights act. That sounds like great news to someone who thinks they're being blacklisted, but most of us are loath to sue a former employer. That's why I'll start with strategies to prevent the problem of a bad reference in the first place and then explore what you can do if you think you're being blacklisted.

Get a reference in advice. I know a lot of people who negotiated a letter of reference with their employer before they were let go. This can save everyone involved a lot of hassle and legal fees. The good news is that you may actually get to contribute to what the company actually says about you to potential employers.

Work around a bad reference. If you are sure that a boss will trash you in a reference, you can sometimes avoid the problem by going to another manager, a vendor or even a customer for a recommendation. This won't prevent the company from contacting your boss directly, but enough employers can be lazy in the hiring process that this may eliminate the problem.

Hire a reference check service. There are a variety of services on the Internet that will contact a former employers of yours to ask for a reference. They basically pretend that they'll be hiring you. Then they share the information that they receive directly with you. You'll have to pay for this service, but most of the prices that I saw listed on the Internet were very reasonable. Unfortunately this service can't find out if you are a victim of an "underground reference." That's when a former employer talks badly about you at professional associations or with vendors.

Understand defamation. A defamation claim is not about challenging whether or not you should have been let go. No this is about your reference. One expert called it a way of getting "monetary revenge on the employer who is sloppy, insensitive or downright mean." If you think a past employer is not telling the truth about you, contact an employment lawyer. Most will give you a free half hour consultation and sales pitch.

Talk to most employers and they'll tell you that they only give name, job title and dates of employment when asked for a reference. Talk to many job seekers and they believe that they're being blacklisted. As in so many things, the truth lies somewhere in between.

Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, "The Boss's Survival Guide." If you have a question for Bob, contact him via bob@workplace911.com.

A Job At What Cost? When Employers Log In To Dig In

 From:  NPR, All Tech Considered

by Dana Farrington 

How would it feel if you were in a job interview and the prospective employer asked for your username and password to see your Facebook profile? Robert Collins says he felt "violated."
"I felt disrespected. I felt that my privacy was invaded," he tells All Things Considered host Robert Siegel, "but not only my privacy, the privacy of my friends and that of my family that didn't ask for that."
Collins was applying for a job with the Maryland Department of Corrections. He let his interviewer log in and search his profile with the screen facing away from him. The justification? The department says it's concerned about gang affiliation and gang infiltration in its facilities.
"I can appreciate their need to create a secure facility, but not at the cost of invading privacy," Collins says.
The Legislative Battle
He got the job but has since left to attend nursing school. He also took his complaint to the American Civil Liberties Union. The state suspended the practice and then changed its policy after the original complaint. Now, providing the username and password is not mandatory, but "we don't really feel that that's an adequate solution," says Melissa Goemann, the ACLU's legislative director in Maryland.
  Collins and the Maryland ACLU are working with state legislators on a bill that would prevent employers from even requesting such information. The bill passed the state Senate and is currently being considered by a House committee.
Goemann says the current policy violates First Amendment rights as well as Facebook's own privacy policy, which states:

"You will not share your password ... let anyone else access your account, or do anything else that might jeopardize the security of your account."

Goemann calls the current policy "coercive," even though employers ask permission. Collins agrees.
"In today's jobs market, people can't afford to be jobless," he says. "People have to make that decision between their privacy and their family, and it's one that they should not be forced to make."
The Balancing Act
Why would employers even want to see this kind of information to begin with?
"At least conceptually, what employers are looking for is job-related information," says Steve Kane, a human resources expert with a background in labor law. "There are a whole lot of things one could argue could shine a light [on workplace performance]."
But that doesn't mean Kane thinks it's always worth it.
"What a lot of employers are doing ... I hate to use this word — are playing with fire," he says.
Employers are looking up information without getting permission. As the Associated Press reports:

"Companies that don't ask for passwords have taken other steps — such as asking applicants to friend human resource managers or to log in to a company computer during an interview."

Accessing someone's Facebook profile could also reveal information that labor laws forbid employers to ask about, such as marital status, sexual orientation or political affiliation.
"We would like to believe that, you know, people are bias-free," Collins says. "But, you know, if we're honest with ourselves, we would admit that people do hold some personal bias."
Kane, the labor law expert, says employers should at least get the job applicant's written permission to access a social media account. And the employer should provide a justification for why that access is necessary.
Employers have to balance their need to know with the prospective employees' privacy, he says.
For some employers, the risks may be worth doing some extra digging. There has always been a downside to hiring the wrong person. Plus, almost all legal complaints filed are related to firing, not hiring, Kane says.
"Those cases are very, very infrequent," he says. "As a result, all employers have to do this balancing test."
Exceptions To Hypothetical Rules
Kane also notes that the rules are different for private jobs than for public ones, like the job Collins took with the Department of Corrections. The ACLU can argue that the government is violating employees' First Amendment rights; the argument is harder to make with a private company.
Any legislation on the topic should provide exceptions, Kane says, for protective service positions. In those cases, he argues, it may be necessary to know more personal information. However, Kane says he "can't think of that many jobs where you would need to know things that are not really job-related."
For now, he says, employers continue to wade through "unexplored territory."
"The law hasn't caught up with the technology here," Kane says.
As with other new technology through the years, he says, it will take time and new standards to answer the question of the employer's need to know versus the employee's privacy rights.
"What is considered private is always going to change," Kane says.
For Goemann of the ACLU, this fight has only just begun. Legislation similar to Maryland's is already being pursued in Illinois.
"I think as this story comes to light ... we're kind of just hitting the tip of the iceberg in terms of what's happening with employment," she says.

Measures Aim to End Bias Against Long-Term Jobless

From - The Wall Street Journal, February 24, 2012

By SHELLY BANJO

More than a dozen states are considering legislation to make it illegal for companies to discriminate against the unemployed.
State lawmakers say they see the bias turning up in a nation with an 8.3% unemployment rate: Companies that explicitly advertise that they won't hire someone who isn't currently employed.

Kim Keough, of Bethel, Conn., was laid off in 2008 and says she sees bias against the long-term unemployed.

The proposals from Connecticut to California range in scope from banning advertisements that require current employment to allowing unsuccessful job candidates to sue businesses under the same discrimination laws that apply to bias on the basis of religion, race, gender or national origin.
The efforts come as the percent of the long-term unemployed—people looking for work for more than six months—has consistently topped 40% since December 2009, when it broke that threshold for the first time since 1948, the year such data began being collected.
President Barack Obama included a similar measure as part of a federal jobs package that failed to gain traction in Congress last year.
Critics of the laws say creating a new protected class of employees places undue burdens on businesses and helps lawyers more than the unemployed.
"Creating a protected class of people who bring lawsuits is just going to benefit the people who bring the lawsuits," said Robert Topel, a labor economist at the University of Chicago Booth School of Business.
In New Jersey, the first state to pass such legislation, only one company, Crestek, Inc., has been cited for allegedly violating the law since it went into effect in June 2011. It was fined $1,000.
"We are challenging this. As a private employer, the government has no right in legislating how you hire and what's in your business's best interest," said Robin Lord, an attorney for Crestek, Inc., a Ewing, N.J., maker of industrial cleaning systems.
Supporters say the laws are needed to protect the unemployed.
Employers often worry that job skills erode the longer people go without working and may pass over unemployed workers because they assume other managers didn't hire them for good reason, said Gary Burtless, a senior fellow at the Brookings Institution and former U.S. Department of Labor economist.

Economists say that, generally, each passing month without a job makes an unemployed worker less likely to get hired. Many eventually drop out of the work force altogether.

"The longer you're unemployed, the more likely you are to be perceived as a risky hire and the less likely you are to get a job," Mr. Burtless said.
When Kim Keough lost her job in July 2008 at Stolt-Nielson USA Inc., a Norwalk, Conn., ship-tanker company, she expected to find another human-resources post within months. More than three years later, she is still looking and attributes the holdup in part to what she calls a widespread bias against long-term unemployed workers.
"Recruiters have told me not to bother sending in a resume if I'm not currently employed," said Ms. Keough, who is 46 years old and lives in Bethel, Conn. "It's damned if you do, damned if you don't...The longer you are out of work, the more discriminatory companies get."
Citing complaints of public job advertisements with explicit prohibitions on applications from unemployed workers, state lawmakers say removing the stigma of long-term unemployment could help the 5.5 million Americans who in January had been looking for work for more than six months. Nearly four million people in the U.S. have been out of work for a year or more, according to the U.S. Department of Labor.
Connecticut's proposed law would make it a discriminatory practice to refuse to hire someone who is unemployed, including it in the same human-rights statutes that protect classes such as a gender and race. Prospective employees could sue to recover damages and attorney's fees.
Under proposed legislation in California, a business would face $1,000 or more in fines for job postings or hiring decisions found to discriminate against the unemployed. In Florida, the fine goes up to $10,000 per violation.
The laws have varying levels of support. In Colorado, a bill to prohibit job ads from requiring applicants to be employed failed to make it out of a House Committee, which voted 7-5 Tuesday against an unemployment discrimination proposal. In Connecticut, the bill has the support of Democratic leaders, who hold a majority in the state.
With "Washington stuck in gridlock, we think we have a better chance of getting this passed at the state level," said state Senate President Don Williams, a Democrat. "We are not ordering employers to hire unemployed individuals, we are just asking businesses to ensure that everyone is able to get a foot in the door."
Write to Shelly Banjo at shelly.banjo@wsj.com

Working Pregnant Women Face Rampant Discrimination

From the Chicago Tribune:  6:27 p.m. CST, February 15, 2012


WASHINGTON (Reuters) - More than three decades after Congress passed a law trying to protect pregnant women in the workplace, discrimination is still widespread and needs to be combated with publicity and clearer guidelines, according to testimony Wednesday at a federal hearing.

The Equal Employment Opportunity Commission's legal counsel, Peggy Mastroianni, said the agency had resolved 52,000 pregnancy cases since 2001, with $150.5 million paid out in damages.

Discrimination against pregnant women includes firing, forced leave without pay, being denied a place to pump breast milk and being barred from some work, witnesses told the five-member EEOC panel at a hearing on the issue.

Decades after the passage of the 1978 Pregnancy Discrimination Act, discrimination ranges from the shop floor to the executive suite, with sexual stereotyping a major factor. It is found in every state, but is more likely to hit women in low-income jobs, they said.

"This many years after the Pregnancy Discrimination Act, we still have employers who still don't understand the basics. Are we getting the word out on fundamental issues?" said Commissioner Constance Barker.

The issue of workplace discrimination was highlighted two weeks ago when a federal judge in Texas ruled against a Houston mother who said she was fired after asking for a place to pump breast milk.

The EEOC helped litigate the case. General Counsel David Lopez said the agency was weighing whether to appeal the ruling.

The Pregnancy Discrimination Act forbids discrimination by employers based on pregnancy, including hiring, firing, pay, job assignments and promotions. Under the law, pregnancy is considered a temporarily disabling condition.

Witnesses said overlapping laws and rules, such as the Pregnancy Discrimination Act, the 1990 Americans With Disabilities Act and the Family and Medical Leave Act, had created gray areas that left employers uncertain about how to deal with pregnancy.

One issue was how to compare treatment of a pregnant woman with that of other employees, they said.

"In our view, the current laws are a little confusing and in some cases contradictory," said Deane Ilukowicz, a human relations executive with Hypertherm Inc, a Hanover, New Hampshire, maker of metal cutting gear.

Witnesses and panel members said the commission needed to provide clearer guidelines for workers and employers, work more closely with the Labor Department and carry out publicity campaigns, including through social media such as Twitter.

The hearing came ahead of the scheduled September release of the EEOC's four-year strategic plan, which is expected to give direction on how to combat pregnancy discrimination.

(Editing by Greg McCune and Doina Chiacu)

EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964; Pepsi to pay $3.13 million settlement

From the Star Tribune, January 11, 2012:

Pepsi Beverages will pay $3.13 million and provide job offers and training to resolve a race discrimination charge filed in the Minneapolis office of the U.S. Equal Employment Opportunity Commission (EEOC), government officials said Wednesday.

The settlement will be divided among 300 black job applicants who had applied for positions at Pepsi between 2006 and 2010. A portion of the settlement will go toward covering claims processing costs.

EEOC officials said in a statement Wednesday that their investigation found "reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964."

Pepsi Beverages, formerly known as Pepsi Bottling Group, reportedly applied a criminal background check policy that "disproportionately excluded black applicants from permanent employment," the EEOC document said.

Under Pepsi's former policy, job applicants who had been arrested but were never convicted of any offense were not allowed to be hired for any permanent jobs at the factory.

EEOC officials also said that Pepsi's former policy also denied employment to applicants who had been arrested or convicted of minor offenses.

While officials said that the use of arrest and conviction records to deny employment "can be legal" under Title VII of the Civil Rights Act of 1964, it is not legal when the records are not relevant for the job because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

EEOC Chair Jacqueline A. Berrien said that the agency has a longstanding policy on the use of arrest and conviction records in employment. She went on to commend Pepsi's "willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed."

Minneapolis EEOC spokeswoman Julie Schmid said she has never seen a conciliation agreement that large in Minneapolis the six years she has worked at the agency. "For our district, this is unusually large," she said.

The settlement is also "unusual," she said because Pepsi not only agreed to pay the cash, but agreed to offer previously affected black applicants jobs. "Usually the settlement just involves money. So this is unusual," she said.

Dee DePass • 612-673-7725

Advice for employees

The following was taken from Workplace Fairness Weekly:

http://www.workplacefairness.org/weekly:

Your Future at Work: Lessons for 2012:

• They're still the boss.
• Manage your stress.
• Internot.
• Break through the clutter.
• Show, don't tell.

Your Future at Work: Lessons from 2011
Let's face it, 2011 was rough year. An economy going sideways, layoffs, fear of layoffs, foreclosures, a year that many would prefer to forget. If I had to sum up the year in one word it would be "Ooops." Rick Perry said it, but we all lived it. Amidst the wreckage I'm going to offer five of the most interesting stories from 2011, along with specific strategies to help you take to put the lessons to work for you.
They're still the boss. An employee created a Twitter account that had both his name and his company's name in it. He quickly acquired 17,000 followers. When he decided to leave his company it was no big deal, he just changed the name of the blog and thought that the names were his. But his company felt differently and sued him for $340,000, valuing each name at $3.50 a month. When you create something using company equipment and on company time, they are still the boss of you.
Manage your stress. Of all the stress reduction techniques I've heard of, this one is hard to top. Hundreds gathered in Shanghai, China for a big pillow fight recently. Many wrote the names of bosses or professors on their pillow before they started bashing each other. Okay, maybe you can't start a big pillow fight, but you can try to find creative positive addictions to cope with your stress at work.
Internot. I'm as big a fan of the Internet as anyone, but there are some things you just can't do virtually. Like firing someone. Carol Bartz, CEO of Yahoo, doesn't have the greatest reputation. But when she was fired via email it created a wave of sympathy for her. Just because you have all these high tech gizmos, don't forget that some things are still best done face-to-face.
Break through the clutter. Have you heard of Roanald? He applied for a job and his cover letter is easy to find online. From his reference to being Prom King in high school to his gloating about his mastery of Rubik's cube, it's hilarious. The language is probably more colorful than most of us should use, but he is an inspiration to use your creativity to break through the clutter.
Show, don't tell. The Philadelphia 76ers basketball team decided to run an online contest to select a mascot from three possibilities. Jerry Rizzo decided to set up Twitter accounts for each mascot. Initially the team was annoyed and told him to stop. But after seeing all the interest that it generated, they ended up offering him the job as the team's social media coordinator. Everyone can tell an employer what they can do, Rizzo showed 'em. And wowed 'em.
I applaud the creativity and persistence of the stories above. No matter what 2012 throws our way, many of us will rise above it. And I think these stories and lessons could play a key role. Here's to a less volatile and more successful 2012.

Star Tribune article for job seekers

Job experts suggest a well honed resolution for the 2012 workplace

• Blog Post by: Dee DePass
• January 3, 2012 - 3:06 PM

Forget about that New Year resolution to lose weight.
What you really need is a resolution to keep your job, say job placement experts who insist that 2012 will be a pivotal year.
This is the year that "Employers are definitely turning their attention toward retention and recruiting," said John Challenger, CEO of the outplacement employment giant Challenger, Gray and Christmas.
While greater focus on employee retention is welcome news, employees shouldn’t relax.
 "Companies are concerned about losing talented workers, but they also know that the labor pool is full of willing and able candidates. So if you have a job, your workplace resolutions should be focused on keeping it as well as putting yourself in a position for a possible salary increase or promotion," Challenger said. "Those who want to keep or improve their positions in the new year are not going to do so by flying under the radar."
The problem is that no one knows for sure on which side of the economic sea-saw of employment they will land.
Recent employer surveys from manufacturing associations and the Federal Reserve Bank suggest employers are finally in the mood to hire. But economists say the European debt crisis, weak U.S. housing markets and government spending cuts could bring disaster to the jobs front.
So, job keepers and job hunters need to be resolute and aggressive, job coaches say.
For those looking to keep their jobs, Challenger offers these resolutions:

• Seek more responsibility
• Meet your boss's boss
• Set deadlines for your resolutions
• Join a company committee
• Find or become a mentor
• Align your career objectives with your company's goals
• Find ways to save your company money
• Become an expert on one aspect of your field.

Hope to nab a new job this year?
Here are resolution ideas from the state, business strategy firm Significant Solutions Inc. and Challenger, Gray and Christmas:

• Remain positive
• Join LinkedIn, Facebook, Twitter
• Volunteer / Join a community service group
• Join a professional trade association
• Meet 10 new people in your field
• Rev up your skills
• Conduct mock interviews
• Stay in touch. Send New Year’s cards to your contacts
• Visit one of the state's 46 Minnesota Workforce Centers 

© 2011 Star Tribune

http://www.startribune.com/blogs/136595673.html 

"Good Credit Only" Hiring Policies

Employers’ use of credit checks to screen job applicants is wide spread. A 2010 survey by the Society for Human Resource Management found that 60% of employers now check the credit of at least some applicants. Those candidates receiving poor credit scores are not hired. Employers who use credit checks maintain that how a person has handled his financial responsibilities is relevant to how they will perform in the job. They believe that someone having financial difficulties is more inclined to engage in risky behavior, such as stealing from the company.

Consumer advocates and others opposed to employers using credit checks to screen applicants, argue it leaves those who desperately need a job in dire circumstances. Once someone loses their job and is unable to pay their bills, their credit score plummets. This poor credit leaves them unable to find new work. As they slide deeper into debt, employers find them even less desirable and they are entrenched in circumstances from which they may never escape. Those opposed to using credit scores as a hiring screening tool, say it unfairly penalizes minorities; arguing there is no correlation between an individual’s credit score and their character or any job performance, and that credit reports are unreliable.

While using credit scores in making hiring decisions is not necessarily illegal, employers need to be careful. In some cases, credits checks can be found to be illegal if they have a disproportionate affect on minorities and other protected classes of workers.

As with a “no hire of those unemployed” policy, if an employer’s practice of using credit checks to select job hires is shown to have a disproportionate impact on race or another protected class, the employer must prove that using credit checks is job related and justified by business necessity. And then, even after showing a business necessity, the employer could be required to show that there was no alternative, non-discriminatory way of obtaining the same information.

A recent example of a lawsuit involving credit checks occurred in December 2010. The EEOC sued Kaplan Higher Education Corp., alleging that its use of credit history to screen job applicants discriminates against African Americans. The lawsuit alleges that Kaplan has routinely rejected job applicants because of bad credit and that this practice has an unlawful, discriminatory impact because of race, in violation of Title VII of the Civil Rights Act of 1964. The EEOC maintains the job practice is “neither job related nor justified by business necessity.” The case is currently being litigated.

References:

“Credit History: Is it any of your employer’s business?” The Rights Stuff Newsletter, Winter 2011. http://www.humanrights.state.mn.us/education/articles/rs11_1credit.html

“EEOC Files Nationwide Hiring Discrimination Lawsuit Against Kaplan Higher Education Corporation.” December 21, 2011. http://www.eeoc.gov/eeoc/newsroom/release/12-21-10a.cfm

Goldfarb, Zachary A. “EEOC suing Kaplan over alleged racial discrimination.” The Washington Post. December 22, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105136.html

"Must Be Currently Employed" Hiring Policies

Millions of Americans are out of work. The national unemployment rate was 8.5% in November 2011. This number does not include the millions of unemployed workers who have simply given up looking for work.

Adding insult to jobseekers, is a growing trend among employers to refuse to hire unemployed workers. Advertisements seeking positions as varied as electrical engineers, restaurant managers, and mortgage underwriters have contained caveats that only currently employed candidates will be considered. Employers use this requirement as a way to distinguish among the many applicants in this economy. Employers theorize that individuals who kept their jobs during the economic recession must be good employees and anyone who did not must be bad. Employers worry that people who are out of the workforce have outdated skills or are poor performers. However, such reasoning does not take into account the myriad of reasons someone may be out of work. During the recession, companies let employees go for reasons that had nothing to do with their skills or work quality. They were likely victims of cost-costing measures, poor management choices, or their company simply failed.

On February 16, 2011, the EEOC (Equal Employment Opportunity Commission) held a public meeting to examine the impact of employers considering only those currently employed for job vacancies. While the unemployed are not a protected class under anti-discrimination laws, an employer’s policy of not hiring anyone that is not current employed, can have a disparate impact on racial minorities, individuals with disabilities, women, and older persons. That is, this seemingly non-discriminatory process of selecting job candidates can have an unintentional, discriminatory effect on protected classes of persons.

Employers should be cautious if using such a policy. If it is shown that the facially neutral policy has a disparate impact on a protected class of persons, the employer must prove the policy is job related and consistent with business necessity. That is, the employer must show that being employed is a necessary qualification for the job. Even if the employer can prove that this is true, the employer may still be liable for using such a policy if the employer refuses to adopt an alternative employment practice that has a less disparate impact and serves the employer’s legitimate business needs.

References:

Hunsinger, Dana. “Long-term unemployed face stigmas in job search.” USA Today. January 23, 2011. http://www.usatoday.com/money/economy/employment/2011-01-23-longterm-unemployed_N.htm

“Out of Work? Out of Luck: EEOC Examines Employers’ Treatment of Unemployed Job Applicants at Hearing.” February 16, 2011. http://www.eeoc.gov/eeoc/newsroom/release/2-16-11.cfm

“Businesses Refuse to Hire Unemployed, EEOC says.” Findlaw. February 19, 2011. http://blog.lawinfo.com/2011/02/18/businesses-refuse-to-hire-unemployed-eeoc-says/

“Firms refusing to hire unemployed, commission told.” Arizona Daily Star. February 17, 2011. http://azstarnet.com/business/local/article_fc59c0d1-b2af-5b7b-a305-2579d955d7c6.html