EEOC Reports Increase in Charges Filed

In a November 23, 2010 press release, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing workplace anti-discrimination laws, reported that it received 99,922 charges in FY2010 (ending September 30, 2010), which is a record for the 45-year old agency. This represents a 7.2% increase over the number of charges filed in FY2009. To put this figure into perspective, it means that more than 11 new charges were filed every hour during the course of the year.

According to its Performance and Accountability Report for Fiscal Year 2010, the EEOC attributes the increase in part to the expansion of its statutory authority as a result of the passage of the ADA Amendment Act, the Genetic Information Nondiscrimination Act, and the Lily Ledbetter Fair Pay Act, all of which extend additional protections to employees and applicants for employment. The EEOC also has made it easier for individuals to file charges by telephone and email. These factors, coupled with a continuing poor economy, shouldn’t make the increase a surprise to anyone.

According to the Report, the EEOC filed 250 lawsuits on behalf of individuals in FY2010. The suits included 192 claims under Title VII, 40 claims under the Americans with Disabilities Act, 28 claims under the Age Discrimination in Employment Act, and two claims under the Equal Pay Act. The EEOC’s legal unit resolved 285 lawsuits in FY2010, for a total monetary recovery of $85 million, which represents only a portion of the $319 million the agency secured on behalf of individuals through all of its administrative enforcement activities during the year.

Comprehensive enforcement and litigation statistics won’t be reported until early 2011. But it’s obvious from the figures released so far that employers must be more vigilant than ever in making sure that they treat employees in accordance with the law. Even if a charge proves to be meritless, the cost in time and money to defend it can take its toll. Employers unsure of how to handle a particular employee-relations matter should consult with knowledgeable employment counsel before making a final decision.

MCAD Resurrects Discrimination Testing

Massachusetts employers beware. The Massachusetts Commission Against Discrimination may have you in its crosshairs. As reported by Lisa van der Pool in the current edition of the Boston Business Journal, the MCAD is resurrecting a testing program it first began in 1992, in which pairs of similarly qualified but demographically diverse “job applicants” apply for positions at the same employer. The program’s goal is to see how the two applicants are treated in an effort to root out discriminatory hiring practices. When it finds such practices, the MCAD will file a complaint against the employer even though there may be no individual complainant. According to the BBJ article, employers are targeted based on anonymous tips and “other sources.”

From an employer’s perspective, it’s easy to look at the MCAD’s testing program as a form of entrapment. But a more reasoned response is for employers to take a closer look at themselves and cure discriminatory practices before it’s too late. Most employers don’t have to be told it’s unlawful to discriminate. Those that aren’t sure whether they’re acting lawfully should seek the help of an employment lawyer or some other human resources professional. Those that don’t care they are breaking the law probably deserve the consequences imposed upon them by the MCAD.


Randy Moss Provides Valuable Lesson For Employers

I’m a New England Patriots fan. I have been for almost 30 years. But growing up, I always cheered for the Minnesota Vikings because of family connections to the Twin Cities. So it was with great interest that I sat down yesterday to watch the Pats–Vikings game three weeks after the Patriots dealt star wide receiver Randy Moss to Minnesota for a third-round draft pick in 2011 and a bag of balls. Depending on who you listen to, Moss’s usefulness as a deep threat no longer fit an offensive scheme that was focused more on the running game and short passes. Others are convinced was he was shipped out of town because he criticized Tom Brady’s hair one too many times. Regardless of the real reason, Bill Belichick and the Patriots made the decision that the team would be better off without Moss. So off he went to the Vikings, the team that originally drafted him.

What happened yesterday? Moss caught one ball for eight yards and drew a defensive pass interference call that eventually led to a Vikings touchdown. Things went downhill from there. Moss showed up to his post-game press conference wearing a black Boston Red Sox cap and announced that he wouldn’t speak with the media for the rest of the season. He then went on to interview himself, praising the New England Patriots while essentially throwing the Vikings and their coaching staff under the proverbial bus. After literally saluting Bill Belichick and the Patriots, he walked off the podium and into the night.

So it really came as no surprise when I heard this afternoon that the Vikings had waived Moss, thus ending his brief return to the land of 10,000 lakes. It’s obvious that Minnesota had no use for a player whose heart and soul were still in New England, and it wasn’t about to pretend otherwise. Where Moss ends up for the remainder of the season is anyone’s guess at this point. As long as it’s not the Jets, I don’t really care.

What does all of this have to do with employment law? Maybe a little more than you think. It illustrates that when an employer makes a carefully reasoned decision to terminate an employee, it’s often best not to second-guess that decision. Rather, it’s in the interest of both the employer and the employee to cut ties as quickly and painlessly as possible so that both can move forward on positive paths toward future endeavors. By contrast, employers that fail to properly address problem employees frequently find themselves ensnared in a downward spiral that negatively affects productivity and employee morale (not just the employee in question, but everyone around him). Attitudes often become so polarized that when the employer finally terminates the employee, the first call the employee makes isn’t to a spouse, but to a lawyer. And even if the former employee doesn’t end up suing, there’s little to stop him from disparaging the employer to anyone who will listen. In this scenario, everyone loses. It should be clear, then, that decisive action by an employer often results in a much better outcome for both it and the employee.

So while the Patriots (6–1) and the Vikings (2–5) are heading in opposite directions this season, in my mind both are leading their respective conferences in how to properly handle a problem employee. The Patriots have already proven they can win without Moss. I’m guessing the Vikings will do no worse without him.

Massachusetts Bans Criminal Conviction Inquiries on Initial Employment Applications

Beginning November 4, 2010, Massachusetts employers – both private and public – will no longer be permitted to request an applicant’s criminal history information on an initial written application form. The only exception to this new rule is when an employer is prohibited by law from hiring someone because of a criminal conviction. This change in the law comes as part of recent legislation reforming the Commonwealth’s Criminal Offender Record Information (CORI) system, and is designed to open doors for reformed criminal offenders who may otherwise be denied employment opportunities.

Although employers will now be prohibited from requesting CORI data on an initial job application, the new law does not prevent employers from asking applicants about their criminal history during the interview process. But, as under the earlier law, such inquiries are limited. Employers may not request information about (i) an arrest, detention, or disposition regarding any violation of law for which no conviction resulted; (ii) a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace; or (iii) a misdemeanor conviction that is more than five years old.

Under the new law, CORI data will be maintained by a new state agency called the Department of Criminal Justice Information Services (“DCJIS”), which will largely supplant the existing Criminal History Systems Board. Beginning in May 2012, CORI records will be available to employers online. Employers will be required to first obtain a job applicant’s written authorization before requesting his or her CORI records. Most employers will be entitled to information concerning only (1) all murder, manslaughter, and sex offense convictions, regardless of when they occurred; (2) felony convictions up to ten years old or for which the applicant was incarcerated within the last ten years; (3) misdemeanor convictions up to five years old or for which the applicant was incarcerated within the last five years; and (4) pending criminal charges. Before questioning a candidate about his or her criminal history, or taking adverse action based on such history, an employer must provide the candidate with a copy of the CORI report. An employer that makes a hiring decision in reliance on information contained in an official CORI report will not be held liable in a subsequent negligent hiring lawsuit provided the hiring decision was made within 90 days of receipt of the CORI report.

Employers that conduct at least five criminal background checks per year must put into place a written policy stating that they will (1) notify applicants that they could be subject to an adverse hiring decision based on their CORI report; (2) provide a copy of the criminal record and policy to applicants; and (3) provide information about how an applicant can correct an erroneous report.

Lastly, under the new law, employers may not maintain CORI records for more than seven years from the date an employee terminates employment, or from the date the decision was made not to hire an applicant.

In light of the changes in the CORI law, employers doing business in Massachusetts must amend their employment applications to eliminate any questions seeking information about an applicant’s criminal history. If an application form cannot be amended before November 4, 2010, the employer should either instruct applicants not to answer criminal history questions, or cross out those questions on the application form.