Tag Archives: Equal Employment Opportunity Commission

Obama’s second term: What will it mean for employers?


Federal agencies will continue to interpret the laws that protect employees very broadly and enforce them very aggressively.

By Jonathan A. Segal


FORTUNE — Democrats have retained control of the White House and the Senate. Republicans have retained control of the House. So the voters, again, have voted for divided government.

What will it mean for workers and their employers? Much of it depends on how Republicans read and respond to the election results.

For example, the House and most Senate Republicans have opposed Democratic proposals that would offer a path to citizenship for illegal immigrants and strengthen existing non-discrimination laws related to gender pay equity. Yet, exit polls suggest that the Democratic victory was in part due to big wins among Latinos and women.

MORE: Congratulations, Mr. President. Here’s how to fix the economy.

How the Republicans will respond to the election results is still up in the air. What is clear, though, is that President Obama will continue to control appointments to the administrative agencies. What is equally clear is that the administrative agencies will continue to interpret the laws that protect employees very broadly and enforce them very aggressively.

Expect the National Labor Relations Board to try to reduce the period of time for an election to take place after a union has filed a petition to represent a group of employees. Shorter election periods generally benefit unions, since unions can start to campaign long before employers even know of the campaign.

We can also expect the NLRB to continue to challenge common workplace rules, for example, rules that prohibit disparagement of an employer or its employees. The NLRB’s theory is that such rules interfere with what’s called protected concerted activity under the National Labor Relations Act. Protected concerted activity generally means that union and non-union employees alike have the right to discuss the terms and conditions of their employment, even with social media. That right may include comments that are negative, even disparaging.

The Equal Employment Opportunity Commission will also continue to focus on social issues. For example, the EEOC recently published guidance on how victims of domestic violence could be protected from discrimination under Title VII and the ADA. The EEOC had drafted but decided not to publish guidance in other areas, for example, what are reasonable accommodations for disabled employees under the Americans with Disabilities Act. It is reasonable to expect the EEOC to consider revisiting these and other issues that it had tabled.

MORE: Election 2012: Corporate America gets feisty

And we will likely see more legislation at the state and local level that will affect the employer-employee relationship. Over the past year or so, we have seen states and local jurisdictions impose restrictions on the use of credit reports in the hiring process, the timing of criminal records checks by prospective employers, and the acquisition and use of social media at work. Expect more of the same and anticipate that the bills will tend to favor expanding employee rights.

Former U.S. Speaker of the House Tip O’Neil once said, “all politics is local.” Not only that, but most voters are employees, too.

Jonathan Segal is a partner at the law firm Duane Morris LLP, where he is a member of the firm’s employment, labor, benefits and immigration practice group. This article should not be construed as legal advice. 



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Know Your Rights! How Employers Can And CAN NOT Use Your History Against You

If you pay any attention to national news, all you hear is: no jobs, economy bad, market struggling, jobs hard to find, double dip recession, down market, and did we mention no jobs? As an out of work labor force grows increasingly desperate, companies are being flooded with resumes and, therefore; hiring managers have the luxury of being quite choosy.

In order to thin the alarmingly huge herd of applicants, many companies are requiring prospective employees to submit to a criminal background check. These kinds of checks scour a person’s past and inform your future employer of any criminal activity associated with you, even stuff you’ve only been accused of can show up! It is important to understand what your individual rights are, so you don’t get unlawfully eliminated from your dream job.

What is and is NOT Legal
Even if you are one of the few Americans with a record clean enough to eat off of, chances are, you will still have to get a background check. If you plan on working in any kind of government job, expect to take one. Criminal checks for government positions are usually more extensive and involve livescan fingerprinting (which the applicant has to foot the bill for), so expect everything to come up. Other jobs in which you work with children, or the elderly will also ask their candidates to get checked out. Expect for them to look up your social media profiles as well, so watch how vulgar you get with your status updates while job hunting.

The specifics of the report will vary based on where you live, and the job you are applying for. Don’t worry though, there are some things from your past which won’t be visible in a criminal check. You can still maintain your innocent facade if any of these apply to you:

  • Bankruptcy that occurred more than 10 years ago
  • Civil suits and tax liens also vanish after 7 years
  • Anything from years prior that did not result in a criminal conviction

Basically if you had sketchy financial issues, but they happened a long time ago, you don’t need to worry. However, notice on the last bullet point that anything negative from years prior will not show up. This means that if you were arrested last week but were found innocent, that arrest will still show up on a criminal check. Bummer.

Along Came The Equal Employment Opportunity Commission (EEOC)
Slightly sketchy job seekers can rejoice. The EEOC recently revised their stance on criminal checks so that it was a little more clear about what was acceptable and what was not. They wanted to make sure that an employer knows that they cannot simply deny someone a position that has a criminal background. The conviction has to cause a threat to the company that is consistent with the specific details of the job. OK, so those guidelines are somewhat subjective but at least it’s a step towards transparency when it comes to the role of background checks in the hiring process. The two big things that came out of the recent EEOC decision are: 1) Employers must know the difference between a conviction and arrest. You are innocent until proven guilty. Hello, this is America! 2) Employers CAN NOT disqualify someone just because he or she has a record.

What these two facts mean to you: If you were arrested for something that did not lead to a conviction but were you denied a position based on the results of a background check, that is illegal. AND even if you were convicted, unless the nature of your crime directly corresponds to the job duties (like a delivery driver having a DUI) you can’t be turned away. If you are, that is also illegal.

What Does This Mean?
If you don’t have a record and aren’t looking for a job, then this does not affect you at all. You are now free to go about your day. But, if you are like millions of other Americans with a less than perfect past, this could mean being able to earn an honest living by actually getting hired.

The decision by the EEOC will also help combat racial profiling. Since white, wealthy folks generally fare better in the criminal justice system, African Americans and Latinos have a higher arrest and conviction rate (this does NOT mean they commit more crimes than white people). Now that a conviction is no longer grounds for disqualification, this law could go a long way to help these communities combat record levels of unemployment. Certainly this can be seen as a step in the right direction.

If for some reason you feel that you have been wrongly denied a job then you can contact the EEOC and they will let you know what your next steps will be.

Kristen Bright is the social media consultant for Instant CheckmateInstant Checkmate is a personal criminal background check provider, and does not perform employment screening of any kind.


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Hooters has it both ways, sex and kiddies!

By Matt Coker, Fri., Dec. 17 2010 @ 8:57AM

Hooters restaurants in Anaheim and Costa Mesa routinely violate local and state laws regarding sexual entertainment and children, alleges the National Organization for Women (NOW).

Orange County’s NOW chapter is among four across the state that have filed formal complaints with their respective district attorneys. The Orange County District Attorney’s Office has not yet disclosed if it will launch and investigation.

The complaints boil down to this: to comply with the law, Hooters must either ban kids or sexual entertainment.
“Marketing to young children and advertising as a family restaurant while in reality being nothing but a provider of ‘vicarious sexual entertainment’ amounts to sexual exploitation and attempts to legitimize sex discrimination and hostile work environments for women,” says Patty Bellasalma, president of California NOW, in a statement released Thursday by the organization


“Every local county or city with a Hooters should consider a ban on marketing sexual entertainment to minors,” she continues, “and require that sexual entertainment businesses check IDs at the door.”

NOW’s complaints–also filed in Sacramento, San Bruno and San Francisco–break down as so:


  • The chain has used this designation to avoid compliance with regulations against sexual discrimination in the workplace.


  • Hooters advertises itself as a family restaurant.


  • Hooters does not comply with regulations for providers of sexual entertainment.

” It’s time to end this legal bait and switch,” reads the NOW statement, which also includes this:

On a typical evening, Hooters, Inc. serves children younger than 18 years of age and offers child menus, high chairs and booster seats.  They also display and sell products of prurient nature, including t-shirts in child sizes with statements such as “Future Hooters Girl.”  According to Hooter’s own employment material, a “Hooters Girl” is employed as a sexual entertainer and as part of her employment can expect to be subjected to various sexual jokes by customers and such potential contacts as buttocks slaps.  Hooters of America Inc. v Phillips, Case 173 F3d 933 (4/8/99).

The NOW complaints call on government authorities receiving them to either force Hooters, Inc. to comply with EEOC prohibitions against sexual discrimination (if they wish to be a family restaurant that serves children) or comply with regulations covering providers of sexual entertainment (which prohibit children from the premises).

So far, Hooters, Inc. has not reacted publicly to NOW’s complaints.


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