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DC Metro Area Labor & Employment Newsletter - September 2014

Applicants' Criminal Histories May Soon Be Off Limits in Initial Interviews in Montgomery County and District of Columbia
By: Jeffrey C. Seaman, Esq.

The District of Columbia has enacted a law that will prohibit employers with 10 or more full-time employees from inquiring about a job applicant’s criminal history during the initial application process. There is similar legislation pending in Montgomery County, Maryland, and a public hearing on the proposed law is scheduled for September 9.

The laws’ sponsors explain that criminal history inquiries on the initial employment application often preclude many people from even getting to the interview stage during the employment process, and that this dynamic prevents people with a criminal conviction from fully reintegrating as productive members of society. The sponsors of the Montgomery County bill note that approximately one in three adults have some record of arrest or conviction. The District’s Committee on the Judiciary and Public Safety writes in support of the law that 10% of the District’s population has a criminal history and that the number is increasing. The sponsors of the laws reason that by eliminating the automatic employment disqualification that a criminal history often carries with it, the jurisdictions will reap a net economic benefit in the form of reduced recidivism rates, lower law enforcement and corrections expenses, higher employment, and greater tax and sales revenues.

The proposed laws reflect guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC), which has explained that employers’ refusal to consider any applicant with a criminal history has disproportionately affected minorities, and creates the effect of racial and ethnic discrimination.

Both the District’s and Montgomery County’s pending laws are similar to laws passed by several states and a handful of cities in recent years. These laws are commonly called “ban the box” laws, a reference to the portion of many job applications requiring an applicant to indicate whether she or he has a criminal history.

Montgomery County

Under the proposed law (the “Fair Criminal Record Screening Standards”), employers may inquire about arrest or conviction records only after a conditional offer of employment is made to the applicant (and employers must inform the applicant that the offer is conditioned upon a subsequent investigation into the applicant’s criminal history).

After making the conditional offer and conducting the criminal background investigation, the employer’s assessment of the applicant’s criminal history must be “individualized.” More specifically, the law indicates that the employer should consider:

1. “only specific offenses that may demonstrate unfitness to perform the duties of the position;”
2. the time elapsed since the specific offense(s); and
3. any evidence of inaccuracy in the record.

If, after making its assessment of the applicant’s criminal history, the employer intends to take an “adverse employment action” (failure to hire, to discharge or not promote a person, “or to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or otherwise adversely affect the person’s employment status”), the employer must notify the applicant of its intent to do so, must provide the applicant with the criminal record report and must identify the items that are the basis of its decision to take the adverse action. The applicant would then have a week within which to provide the employer notice of any inaccuracy in the report. If the applicant provides that notice to the employer, the employer must delay the adverse action “for a reasonable period,” and must reconsider the adverse action in light of the information provided by the applicant. If the employer takes an adverse action even after considering the applicant’s inaccuracy claim, the employer must notify the applicant of that decision, in writing, within seven days of taking the action.

The law includes an anti-retaliation provision that prohibits an employer from retaliating against any person from “lawfully opposing” a violation of the article, or from participating or assisting in an investigation or hearing concerning a violation.

Violation of the law could result in awards of compensation, attorneys’ fees, damages for “humiliation and embarrassment,” and fines of up to $1,000.

The proposed amendment would not apply to employers that provide programs, services or direct care to minors or vulnerable adults.

A public hearing on the proposed Code amendment is scheduled for September 9.

District of Columbia

The District’s law, entitled the “Fair Criminal Record Screening Act of 2014,” was passed by the Council on July 14 and signed by the Mayor on August 22, 2014. The Mayor’s signature will be followed by a 30-day Congressional review, after which the act will become effective.

The new law will prohibit employers with 10 or more employees in the District of Columbia from asking applicants about arrests or any criminal accusations that are not pending or that did not result in a conviction. The employer may ask about convictions, but only after making a conditional offer of employment. If after making a conditional offer the employer learns that the applicant has a criminal conviction history, the employer may only withdraw the offer (or take other “adverse action”) for a “legitimate business reason.” The employer’s withdrawal or other adverse action must be reasonable, and must be based on the following:

1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
2. The bearing, if any, the offense will have on the applicant’s fitness or ability to perform one or more such duties or responsibilities;
3. The time that has elapsed since the occurrence of the offense;
4. The age of the applicant at the time of the offense;
5. The frequency and seriousness of the offense; and
6. Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

An applicant who believes that an offer has been withdrawn or that “other adverse action” was taken because of a criminal conviction may request, within 30 days of the withdrawal or adverse action, the following:

1. Copies of all records procured by the employer “in consideration of the applicant,” including criminal records; and
2. A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

The Office of Human Rights may impose penalties of between $1,000 and $5,000 for violations of the law, depending upon the size of the employer.

As with any law, there are nuances that require careful examination of particular factual circumstances that will vary from case to case, applicant to applicant, and employer to employer. But the table below should be as useful guide to the basic application of the new laws.

Ban the Box Summaries
DC and Montgomery County

	District of Columbia	Montgomery County
To whom does the "Ban the Box" Law Apply?	Employers with 10 or more employees whose work location is in whole or in part in the District.	Employers with 10 or more full-time employees in Montgomery County
What types of Employers are excepted from the application of the new law?	Where law requires consideration of an applicant’s criminal history for purposes of employment (e.g., financial institutions are required by certain laws to inquire about criminal histories), OR where a position is designated by the employer as part of a government program or obligation designed to encourage employment of those with criminal histories, OR to facilities that provide programs, services or direct care to minors or vulnerable adults.	Where law expressly permits inquiry into an applicant’s criminal history, OR employers that provide programs, services or direct care to minors or vulnerable adults.
At what point in the process is an employer permitted to inquire about an applicant's criminal history?	Only after a “conditional offer” is made.	Only after a “conditional offer” is made.
Are there any aspects of a criminal history about which an employer may not ask?	An employer may ask about and conduct investigation ONLY of convictions or pending criminal charges. Employers may not inquire about arrests.	An employer may ask about and conduct investigations of the applicant’s conviction and arrest record.
If the investigation reveals that an applicant has a criminal history, what are the employer's obligations?	Before taking adverse action, the employer should consider the following factors: (1) The specific duties and responsibilities of the position; (2) The bearing, if any, the previous offense will have on the applicant’s ability to perform the duties or responsibilities of the position; (3) The amount of time that has elapsed since the commission of the offense; (4) The age of the applicant at the time of the offense; (5) The frequency and seriousness of the offense; and (6) Any information produced by the applicant or on her behalf regarding her rehabilitation and good conduct since the commission of the offense.	Before taking adverse action, the employer must engage in an “individualized assessment,” considering the following factors: (1) Only specific offenses that may demonstrate unfitness to perform the duties of the position; (2) The time elapsed since the specific offense; and (3) Any evidence of inaccuracy in the record. If after making the individualized assessment the employer decides to take adverse action, the employer must provide the applicant or employee with: (1) A copy of the criminal record report, and (2) Notification of the contemplated adverse action and the items upon which the prospective adverse action is based.
What are the applicant's obligations following an adverse action?	If the employer takes adverse action, the applicant may within 30 days request the following: (1) a copy of all records procured by the employer regarding the applicant, including criminal records, and (2) a notice that advises the applicant of his or her opportunity to file an administrative complaint with DC’s Office of Human Rights.	If the employer takes adverse action, the applicant has 7 days after being notified of prospective adverse action to provide employer with notice of evidence of the inaccuracy of any items upon which the prospective action is based.
What further obligations does the employer have?	If the employee makes a timely request for the records and notice set forth above, the employer must provide the records and notice within 30 days of the request.	If applicant provides notice of evidence of inaccuracy, employer must (1) Delay the adverse action “for a reasonable period,” and (2) Must reconsider the prospective action in light of the new information. IF employer takes final adverse action after delay and reconsideration, employer must notify applicant in writing of the final adverse action in writing.
What are the penalties for violations of the law?	Between $1,000 and $5,000, depending upon size of employer.	Up to $1,000 in fines, plus compensatory damages, lost wages, attorneys’ fees.
Who decides whether there has been a violation?	The D.C. Office of Human Rights.	County Commission on Human Rights; the applicant may also pursue litigation in civil court.

The preceding is provided for informational purposes, and is not intended as legal advice. The publication of this article does not create an attorney/client relationship. Application of the laws will be dependent upon the situation under which a claim may arise.

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The "Unpaid" Intern
By: A. Ari Ghosal, Esq.

You are contemplating hiring an “intern” for your organization. You have budget constraints, but you could sure use the extra help. What should you do? Should the intern be classified as an unpaid volunteer or paid employee? Recently, the US Department of Labor (“DOL”) issued guidelines on how to structure an internship program in compliance with the Fair Labor Standards Act.

The DOL guidelines present a six-factor test for identifying a valid internship:

1. The internship is similar to training that would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer providing the training derives no immediate advantage from the activities of the intern;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Internships allow students to gain valuable skills that bridge the gap between education and employment, and at the same time benefit employers with reduced labor costs. At issue is whether employers can simply use labels such as “intern” to avoid paying individuals who perform work for the employer. In one such recent case, Glatt v. Fox Searchlight Pictures, Inc., the Second Circuit applied the DOL’s six factor test and found that former “interns” were actually employees who were entitled to be paid for the work that they performed.

Organizations should be wary of this decision. In Moore et al. v. NBCUniversal Inc., a former Saturday Night Live intern filed a class action lawsuit against NBCUniversal. Even though Moore is pending, should the court rule in favor of former unpaid interns, it will provide an important indicator of the court’s policy interest in the area of internships and willingness to protect a new class of “employees” not previously considered by employers.

Internships in the public sector and for nonprofit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. However, under the FLSA and DOL guidelines, the best practice for compliance for a nonprofit would be to clarify any ambiguity in the terms of the internship opportunity and to create and ensure an unpaid internship program that benefits the intern, rather than answering an immediate need of the organization.

From the outset, an organization should clarify that the intern is a “volunteer” and expects no pay. Adherence to these guidelines can help eliminate possible liability under the FLSA. Structuring an internship program to coincide with an academic institution for credit is an additional avenue to avoid liability. Above all, the employer should consult local law regarding the definition of a “volunteer” versus an “employee” in an effort to proceed with the least ambiguous approach.

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The Americans with Disabilities Act: A Brief Overview of What Employers Should Know
By: Tiffany M. Releford, Esq.

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate against a qualified individual with a disability in any term or condition of employment, as well as retaliate against an individual for asserting his/her rights under the ADA. It is important to note the ADA does not prohibit an employer from hiring the most qualified candidate for a job; it only prohibits an employer from discriminating against a qualified applicant or candidate because of his/her disability. Below is a brief summary of what else employers should know about the ADA.

Who is covered? The ADA covers any employer with 15 or more employees.

What disabilities are covered under the ADA? Disabilities covered are physical or mental impairments that substantially limit a major life activity. A person can have a record of a disability or be regarded as having a disability. This means the impairment must significantly limit a major life activity such as walking, hearing, speaking, or caring for oneself. Disabilities not covered include illnesses of limited duration, broken bones expected to heal, or current use of illegal drugs.

What obligation does an employer have under the ADA? Once a request for a reasonable accommodation is made by an employee or applicant, the employer must engage in an interactive process with the employee or applicant to determine if the requested accommodation will allow a qualified applicant or employee to perform the essential functions of the job. However, unless the disability is obvious, an employer’s obligation to provide a reasonable accommodation applies only to known physical or mental limitations. An accommodation must be provided unless doing so would cause an undue hardship on the employer. Please note an undue hardship requires the employer to show, among other things, the accommodation would be unduly costly, extensive, disruptive, or would fundamentally alter the nature or operation of the employer’s business. In making this analysis, the size of the employer, financial resources, nature of the business and costs to the employer should be considered.

How does an employer determine the reasonable accommodation? Providing a reasonable accommodation does not mean an employer must provide the specific accommodation requested by the employee. The employer and employee should engage in interactive dialogue to determine what reasonable accommodation is suitable. While some accommodations may be alternative work schedules, job restructuring, modifying equipment or devices; the appropriate accommodation should be determined on a case-by-case basis. Although one or more employees may have the same disability, the reasonable accommodation may not be the same for each employee, as there is no one size fits all solution when it comes to disability accommodations.

What information can an employer ask about the individual’s disability? An employer should refrain from asking about the nature or severity of a disability. If the employer is unable to determine the reasonable accommodation because the disability is not obvious, the employer should request the employee or applicant have a doctor provide documentation about the disability and possible reasonable accommodations.

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Employer Liability for Harassment of Employees by Strangers

True or False: Employers can be held liable for harassment of their employees by third parties (non-employees).

TRUE.

A recent Fourth Circuit case, Freeman v. Dal-Tile Corporation, squarely ruled that employers can be held liable for harassment by third parties. In Freeman, the employee (Freeman) complained to her employer that she was harassed repeatedly by the employers’ vendor. The supervisor ignored Freeman’s complaints forcing her to go to human resources who promised that the vendor would be banned from the premises. The employer ultimately lifted the ban but prohibited the vendor from direct communication with Freeman. Freeman resigned and sued. The Fourth Circuit Court found that the employer failed to take prompt remedial action to end the harassment since the harassment occurred for several years before being addressed in any way.

The Freeman case is not the first case to hold an employer liable for harassment by third parties. Other Courts have found liability for harassment by third parties and the EEOC issued an informal discussion letter in 2013 on this issue.

What is Third Party Harassment?

Third party harassment is harassment conducted by someone outside of your organization. Examples of third party harassers include customers, vendors, guests, independent contractors and delivery persons. Just as with harassment by employees, to be actionable, harassment by third parties must be unwelcome and so severe and pervasive that it creates a hostile work environment. Liability for this conduct is imposed on an employer if the employer knew or should have known about the problem and failed to take appropriate action to protect the employee.

Suppose you have a customer who flirts with your receptionist every time he calls and visits. In the case of membership organizations, what if one of your members acts inappropriately toward your staff at a conference? What about holiday parties or other social events that are related to the job? How about the UPS delivery woman? How can you protect your staff from “strangers”?

How do I Protect My Employees from Third Parties?

First, you need to know of the conduct before you can take action. If you witness it, you need to stop it. Otherwise, it is up to the employee to notify you of the unwelcome harassment. Once you are on notice, however, you need to take prompt, remedial action. If further information is needed, conduct an investigation, just like you would for harassment by an employee. If the harassment is confirmed, although it may be awkward, you need to tell the customer to stop and take action to protect the employee from further harassment by the customer. In sum, employers must follow the same process for third party harassment they do with harassment by employees.

How do I Protect my Organization?

Employers can minimize their risk by taking the same preventative measures that should be taken with regarding to harassment by employees.

1. Review your harassment policy. Make sure it includes the basic provisions including, without limitation (a) definition of harassment and prohibited conduct; (b) complaint procedure; (3) investigation procedure; (4) anti-retaliation provision; and (5) confidentiality. In addition to those basic requirements, make sure the policy includes complaints against third parties.
2. Disseminate the policy and train your employees. This is very important as the policy is worthless if no one understands or knows about it. Obtain documentation from each staff member acknowledging receipt of the policy and attendance at training.
3. Follow your policies. The only thing worse than not having a strong policy is not following a policy. Promptly and thoroughly investigate ALL claims of harassment, including claims against third parties. If harassment is found, take prompt action to protect the employee.
4. Train your managers. In order to follow the policies and be aware of the requirement to protect employees from harassment by third parties, managers need to be educated. Document the training.
5. Document the investigation and outcome. In the event you have a complaint, document the complaint, the investigation and the outcome.