LEGISLATION THAT COULD AFFECT YOUR HIRING PROGRAM
Arizona
Preemployment Inquiries Law
Upholding the merits of Arizona's employer sanctions law, which suspends and revokes the business licenses of employers that intentionally or knowingly employ workers who are unauthorized to work in the United States, a federal district court in Arizona denied a motion filed by a coalition of business groups and immigration rights advocates to permanently bar the Legal Arizona Workers Act (H. 2779). The Act's licensing sanctions did not "make employers conform to a stricter standard of conduct than federal law," the court noted (Arizona Contractors Ass’n v Candelaria, DAriz, February 7, 2008).
D.C.
Criminal Background Checks Rules
Each current employee in a covered position working with children or youth services providers shall be subjected to an initial criminal background check beginning within forty-five (45) days of the publication in the D.C. Register of the notice of final rulemaking implementing the criminal background check requirements of the Act. The personnel authority shall notify each current employee in a covered position that he or she shall be subject to an initial criminal background check under the Act prior to conducting any such check. Title 6, Chapter 4, Sections 412 through 499, as amended and adopted effective Jan. 25, 2008. ¶9-23,650.01 through ¶9-23,650.15.
Oregon
Criminal Background Checks Rules
An in-home care agency must insure that a criminal background check has been conducted on all current employees. If the screening indicates that the employee has been convicted for crimes against an individual or property, the agency shall make a determination of the employee's fitness to provide care to clients. Chapter 333, Division 536, Section 333-536-0050, as amended by PH 14-2007, effective Jan. 1, 2008. Para ¶38-23,650.31.
Tennessee
Recordkeeping/Posters Law
The state has enacted protections for social security numbers as part of the Credit Security Act of 2007 (Ch. 170 (H. 200), L. 2007).
Also, the state has updated its workers' comp poster.
EMPLOYMENT LAW
High Court will determine burdens as to "reasonable factor other than age." The Supreme Court will consider whether an employee alleging a claim under the Age Discrimination in Employment Act (ADEA) will have to bear the burden of persuasion as to his/her employer's defense that an employment practice with a disparate impact on older workers is permissibly based on a "reasonable factor other than age." The Second Circuit held that the employer has only the burden of production while the employee bears the burden of persuading the fact finder that the factors identified by the employer are unreasonable. (Meacham v Knolls Atomic Power Lab, USSCt, Dkt No 06-1505, January 15, 2008)
Twenty-eight laid-off employees sued, claiming their employer designed and implemented its reduction-in-force (RIF) process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees. A jury found in favor of the employees under a disparate impact theory of liability. The Second Circuit affirmed, finding the employees had established a prima facie case under the ADEA by showing that the subjective decisionmaking involved in the RIF created a disparate impact on ADEA-protected workers, and, notwithstanding the employer's facially legitimate business justification, there was sufficient evidence of an equally effective alternative to the subjective components of the RIF to support ADEA liability (85 EPD ¶41,753).
Rejecting the argument that the "reasonable factors other than age" criteria constitutes an affirmative defense for which the employer should bear the burden of proof, the Second Circuit found that the employer's burden was merely that of producing evidence that the challenged actions were motivated by a legitimate business reason. Accordingly, the Second Circuit held that it is the plaintiff's burden to prove that the factors identified by the employer were not reasonable. Applying this standard to the case, the Second Circuit found the employer satisfied its burden of producing evidence suggesting that a legitimate business justification motivated its use of subjective assessments in the RIF because these features were routinely used components of personal decisionmaking in general and were appropriate to the circumstances that provoked the RIF. The employees, however, failed to carry their burden of proving unreasonableness because the employer implemented measures to prevent arbitrary decisionmaking by individual managers and to ensure the layoffs satisfied business needs. Thus, the Second Circuit vacated the district court's judgment in favor of the employees and remanded the case with instructions to enter judgment as a matter of law in favor of the employer. (Meacham v Knolls Atomic Power Lab, 2ndCir, 88 EPD ¶42,476).
High Court to decide whether participation in an internal investigation is protected activity. In its 2006 decision, Burlington Northern & Santa Fe Ry Co v White (87 EPD ¶42,394), the US Supreme Court cleared up a split among the circuit courts when it established a broad framework for interpreting Title VII's anti-retaliation provision. In Burlington, the Court held that employer actions are retaliatory if they: (1) "would have been materially adverse to a reasonable employee or job applicant;" and (2) "could well dissuade a reasonable worker from making or supporting a charge of discrimination." On January 18, 2008, the US Supreme Court granted certiorari to Crawford v Metro Government of Nashville & Davidson County, Tenn (Dkt No 06-1595), deciding again to address further permutations of the anti-retaliation provision, this time dealing with employer's internal investigations. In Crawford, the Court will address whether Title VII's anti-retaliation provision protects employees from being discharged for voluntarily cooperating in their employer's internal investigations of harassment. In an unpublished decision, the Sixth Circuit Court of Appeals (2006 WL 3307507), held that an employee, who was fired eight months after her employer's internal sexual harassment investigation, did not engage in protected activity under either the provision's opposition or participation clause. She had not initiated or brought any complaint against her employer, nor had she filed a complaint after the investigation concluded. In addition, the circuit court held that participation in an internal investigation initiated by an employer in the absence of any pending EEOC charge is not a protected activity.
EEOC discards three bases for dismissing charges. Three bases for dismissal of charges are being eliminated from the US Equal Employment Opportunity Commission's (EEOC) procedural regulations because they are no longer necessary for the agency's case management goals, according to a final rule notice (Notice) published in the Federal Register on January 18, 2008 (73 FR 3387). Those bases are "failure to cooperate," "failure to locate" and "failure to accept full relief." The change in procedural regulations is effective February 19, 2008. Before 1977, dismissal of a charge was only authorized under the EEOC's procedural regulations when a "no cause" determination was issued, a charge was untimely, or a charge failed to state a claim, the agency explained in its Notice. The EEOC adopted three more bases for dismissal in 1977 in order to resolve charges that were timely and stated a claim, yet for which the Commission was unable to issue a determination on the merits for various reasons. Those three bases are currently set out in 29 CFR Part 1601, Section 1601.18(b) through (d). Paragraph (b) permits dismissal when the charging party fails to cooperate. Paragraph (c) permits dismissal when the charging party cannot be located. Paragraph (d) permits dismissal when the charging party refuses to accept an offer of full relief for the harm alleged in the charge.
Report from EEOC aims to increase federal employment of individuals with targeted disabilities. A comprehensive report addressing strategies to reverse the declining participation rate of federal employees with targeted disabilities was issued by the US Equal Employment Opportunity Commission (EEOC) on January 15, 2008. The full text of the report, Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force, is available on the EEOC’s website at http://www.eeoc.gov/federal/report/pwtd.html. The EEOC report reiterates the call for the federal government to be the nation's model employer, providing equal opportunity to all Americans, including those with disabilities. The report incorporates the best practices and innovative measures taken by agencies that have embraced the issue. The report also addresses agency policies and practices that may serve as barriers for individuals with disabilities.Targeted disabilities include deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorders, mental retardation, mental illness and distortion of the limb and/or spine.
Supreme Court dismisses case against Wal-Mart focusing on ADA's reassignment obligation. On January 14, 2008, the US Supreme Court dismissed Huber v Wal-Mart Stores, Inc (Dkt No 07-480) from its docket pursuant to Rule 46 because the case has settled. On December 7, 2007, the High Court agreed to consider whether qualified employees with disabilities who cannot perform their current jobs must be reassigned to vacant, equivalent positions as reasonable accommodations under the Americans with Disabilities Act (ADA) without having to compete for the open job with other non-disabled employees. This substantive question has created a circuit split, with some courts of appeal taking the EEOC's position that qualified employees with disabilities get the vacant position so long as they are actually "qualified" for it. Other circuits do not require "preferential treatment" for employees with disabilities, just the opportunity to compete for the vacant position. The issue, a perplexing one under the Act, turns on whether the ADA is itself an equal employment opportunity statute or an employment preference/affirmative action statute.
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SOCIAL SECURITY
SSA moves to establish new "routine use" for disclosure of information. The Social Security Administration has announced that it intends to establish a new "routine use" for the disclosure of information that will permit the agency to disclose information from 87 different systems of records in order to facilitate "response and remediation efforts" in the event of a security breach. Specifically, the new routine use would permit the SSA to disclose information to appropriate governmental agencies when it determines that the confidentiality of information in its records has been compromised if there is a risk of harm to economic or property interests, a risk of identify theft, or a risk of harm to the security of one or more data systems or programs of the SSA and if the disclosure of information is necessary to assist in efforts to prevent, minimize or remedy the harm.
Energy bill extends FUTA surtax through 2008. Among the many energy-related provisions in the Energy Independence and Security Act of 2007 recently signed into law by President Bush is a one-year extension of the 0.2% FUTA surcharge, which was scheduled to expire at the end of 2007. The surcharge will now continue through next year at which time Congress will decide whether to extend it again.
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