This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.
Political and economic tensions continue to influence employment-related legislation at the state level. As we approach the halfway point in the year, there are several noteworthy trends in state employment law that you should be aware of in order to proactively address potential high risk areas for your operation and stay compliant with the law. Below is a summary of some of the hot-button issues affecting employers at the state level.
The “Ban the Box” Movement
Some 65 million adults in the United States have a criminal record. According to a recent survey, more than half of all employers utilize criminal background checks to screen out prospective employees with criminal convictions. Recognizing the high recidivism rates for convicted criminals who cannot find work, more than 3 dozen states, counties, and local municipalities have implemented “ban the box” legislation in the last couple years.
Under these laws, employers are restricted from asking about a job seeker’s criminal history on an initial application. Depending on the specific law, an employer can inquire about a prospective employee’s criminal history either during the interview phase or after a conditional offer of employment. Proponents of “ban the box” laws argue that by preventing employers from inquiring about an applicant’s criminal history on the initial application, the applicant with a criminal conviction on his record will have a higher likelihood of receiving a job interview where he can attempt to impress the employer with his qualifications and job skills. Among the states that have adopted such laws are Connecticut, Hawaii, Massachusetts, Minnesota and New Mexico. Municipalities with “ban the box” ordinances include Philadelphia, Baltimore, Boston, Chicago, Cincinnati, Cleveland, Seattle and Washington D.C.
Considering Credit History in Hiring
More than a half dozen states limit the use of an applicant’s credit history in the hiring process. Another 20 states have bills pending that would regulate employment credit checks. The majority of these proposed laws would prohibit employers from using consumer credit information in the hiring process, unless the sought-after job involves financial decision-making or the handling of sensitive information. In contrast, New Jersey’s pending bill would ban the use of credit information in any employment situation by adding financial status as a protected category under the state’s anti-discrimination law.
Social Media and Privacy
As Congress and other states debate the issue, Maryland became the first state to make it illegal for employers to ask job applicants and employees for their social media passwords, or to retaliate for an employee’s refusal to do so.
The issue was brought to light when a number of job applicants were not hired by the Maryland Department of Public Safety and Correctional Services after providing their Facebook login credentials to the department. The department contended it was searching for gang affiliations, but finding none, it still found cause on the applicants’ Facebook pages not to hire them. The department eventually voluntarily dropped the practice.
Other states with similar pending legislation include California, Illinois, Michigan, Minnesota, Missouri, New York, New Jersey, South Carolina and Washington.
Sexual Orientation Discrimination
As it stands, Title VII does not prohibit discrimination on the basis of sexual orientation. However, an increasing number of states and local municipalities are amending their anti-discrimination laws and ordinances to protect homosexuals from workplace discrimination and harassment. Currently, 21 states prohibit sexual orientation discrimination under state anti-discrimination statutes, while 16 also protect gender identity.
E-Verify and Immigration Status
E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the United States. The program is free and, for most employers, it is completely voluntary. However, 17 states specifically require employers to use E-Verify in at least some circumstances. For example, in Arizona, all employers are required to use E-Verify to determine the eligibility of their employees. In Florida, only state contractors and subcontractors must use the system. A whole host of states have varying E-Verify proposals pending.
Mandatory Paid Sick Leave
In 2011, Connecticut became the first state to pass legislation mandating paid sick leave. Under the law, most service industry employers with more than 50 employees are required to provide paid sick leave to each of their service workers who have worked a minimum of 680 total hours and averaged at least 10 hours of work per week in the previous quarter. Qualifying employees get one hour of paid sick leave for every 40 hours worked, up to 40 hours of paid sick leave per year. San Francisco, Milwaukee, Seattle and the District of Columbia have also passed mandatory paid sick leave bills in recent years. Philadelphia passed a bill that takes effect on July 1 which amends the city’s minimum wage and employee benefits ordinance to require employers who contract with or receive financial assistance from the city to provide full-time employees who work on those contracts or projects with paid sick days. A much broader paid sick leave bill was vetoed by Philadelphia’s mayor last year. Arizona, Massachusetts, Hawaii, Pennsylvania, Wisconsin and Washington are among the states currently considering their own paid sick leave legislation.
Although there are currently no state laws that prohibit general workplace bullying, 13 states, including New York, Massachusetts, Illinois, Wisconsin, and Washington, are considering such legislation. In contrast to Title VII, which requires workplace harassment to be based on some particular protected trait to be actionable (e.g. race, sex, national origin), each of the proposed bills would prohibit abusive conduct, regardless of the worker’s protected status, so long the conduct was sufficiently deliberate and offensive. Employers and their allies have been able to turn back previous attempts to pass similar legislation arguing that it would encourage frivolous lawsuits and force employers to act as a sort of civility police. It remains to be seen whether any of the pending legislation gains any traction.
Employers must stay current on these ever-changing employment law trends, and we will continue to keep you up-to-date on these issues. In addition, we will be hosting our Annual Labor and Employment Law Seminar on June 1, 2012, which will cover labor and employment law developments and trends. You can obtain more information about our seminar and register by clicking here (pdf).