Where the Road Is Going to Take You in 2016?

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Where The Road Is
Going To Take You in
2016
Presented by:
Bethanie Barnes, Esq.
Email: Bbarnes@laborlawyers.com

Presenter
• Bethanie Barnes, Esq.
Associate, Attorney at Law,
Fisher & Phillips

Presentation Objectives
• Cover notable legal developments in 2015
that will impact the way you do business
• Discuss the latest states to embrace the
“Ban-The-Box” Movement
• Identify and address potential Drug &
Alcohol Use Issues in the workplaces
• Identify best practices to help you navigate
the employment “mine field” in 2016

Looking Ahead to 2016

Federal Labor &
Employment Law
Developments in 2015

Supreme Court

• E.E.O.C. v. Abercrombie & Fitch
Stores, Inc. (2015)
• A job applicant bringing a Title VII
disparate treatment claim need only show
that the need for an accommodation was a
motivating factor in the prospective
employer’s adverse decision.
• An employer need not actually know of an
applicant’s need for accommodation or that
an applicant requested accommodation.
Title VII Disparate Treatment

Executive Branch

Executive Order : Mandatory Paid Sick
Leave for Federal Contractors
• Beginning January 1, 2017, federal contractors must
allow employees to accrue at least 1 hour of paid sick
leave for every 30 hours worked, up to 7 days of paid
sick leave
• Paid Sick Days can be used for an employee or an
employee’s “family member” in order to
– Care for a physical or mental illness, injury, or medical condition
– Obtain preventative or diagnostic care
– Obtain special services/treatment for victims of domestic violence,
stalking, or sexual assault
• Can require a doctor’s note under limited
circumstances
• Department of Labor will issue implementation
regulations, containing additional requirements in
Sept. 2016

Department of Labor Proposed Revisions –
Overtime Exemption Regulations
• Proposed revisions will impact the
minimum salary needed to qualify
for the white collar exemptions and
highly compensated individual
exemptions
• DOL proposes to adjust minimum
salary from $23,660 to $50,440 for
“white collar” exempt employees
and from $100,000 to $122,148 for
“highly compensated” individuals

Expansion of Ban the Box

Ban the Box Initiatives
• In 2015, Six new states joined the trend of
prohibiting employers from making inquiries into
the applicant’s criminal history on the job
application and during the initial hiring stages
• In most jurisdictions, these laws only apply to
Public Employers and Government Contractors
• Even in states with Ban the Box laws, employers
may be permitted to inquire into the applicant’s
criminal history later in the hiring process

GEORGIA
• Only applies to Public Employers
• Removes questions regarding criminal
history from all applications for state
employment
• Inquiries into an applicant’s criminal record
are postponed until after the initial stage of
the state employment application process

NEW YORK
• Only applies to New York State agencies
• Delays inquiry into the applicant’s prior
convictions until and unless the agency
has interviewed the candidate and is
interested in hiring the candidate

OHIO
• Only applies to Public Employers
• State employment applications cannot
contain questions about a candidate’s
conviction and arrest history
• Requires every decision maker to weigh
factors analyzing the position’s duties and
the relevance/relatedness of the
employee’s conviction

OREGON
• Applies to Public & Private Employers
• Delays inquiry into an applicant’s prior
convictions until the initial interview with
the applicant
• Limited exceptions for certain positions

VERMONT
• Applies to Public Employers only
• Eliminates criminal record inquiries from
state applications
• Limits criminal background checks until an
applicant is deemed qualified for the
position

VIRGINA
• Applies to Public Employers only
• Removes criminal history inquiries from
state employment applications
• State employment decisions cannot be
based on an individual’s criminal history
unless demonstrably job-related and
consistent with business necessity

BEST PRACTICES IN PRE-
EMPLOYMENT SCREENINGS

Best Practices
 Identify legitimate business reasons that support
the type of background check desired before
you perform it
• Analyze the job duties and job functions of the
position
• Determine how the particular background check
information will be relevant to predict whether the
applicant can perform the essential functions of the
job

Best Practices
 Build your background check criteria based on
legitimate business reasons customized on a job
description by job description basis
• Decide whether to do financial background checks
and the extent of them based on job-description
specific business reasons
• Decide what type of criminal background check to do
including, but not limited to, the types of criminal
activity you’re looking for and the age of criminal
convictions on a job description by job description
basis

Best Practices
 Develop your negative adjudication criteria on a
job description basis based on job-relatedness
and suitability
• Number, nature, and gravity of offense (e.g. felony v.
misdemeanor)
• Time passed since the offense or completion of the
sentence
• Nature of the job held or sought
 Maintain consistency in your negative
adjudication within each job description

Best Practices
 Train, train, train!

BREAKING BAD
BEHAVIOR:
DRUG & ALCOHOL
POLICIES AND TESTING

Recreational Marijuana
• 4 states have de-criminalized sale,
possession or use of marijuana –
Colorado, Washington, Oregon, Alaska
• Use and possession still unlawful under
Federal law
• Employers may discipline or discharge for
workplace use, being “under the influence”
at work, or positive test

But, I Have A Prescription!

Potential Employer Issues
• Medical marijuana use lawful in many states now
• Must marijuana use be permitted at or during work?
• May an employer continue to enforce its drug-free
workplace policy?
– Using at work and being at work under the influence may
absolutely still be prohibited
– Most states’ laws do not require employer to
“accommodate” medical use
– Prohibitions against off-duty use (and residual retention of
THC in blood) less clear
– Safety-sensitive positions are special – example fork lift
drivers

Potential Employer Issues
• Federal DOT Motor Carrier Regulations
– No exception for state medical marijuana laws
– May not report for or remain on duty while
using or after testing positive

Improper Use of “Legal” Drugs
• Abuse of prescription medication a fast-
growing form of illegal drug use
• Drug and alcohol policy should specifically
address using prescribed drugs properly
• Common scenario: Employee prescribed
drugs that could impair ability to safely
perform job

www.laborlawyers.com ● Phone (213) 330-4500www.laborlawyers.com
The Doctor Said It’s Good For My Heart.

Employers’ Alcohol Use Policies
• Continues to be permissible for employers to
prohibit
– Drinking at work
– Being at work “under the influence”
• BUT: some jobs may actually involve permitted
drinking during work hours, such as at lunch with
clients
• In states with “lawful conduct” statutes, employers
can’t prohibit consumption of alcohol away from the
workplace – only at work. But, can still prohibit
being at work under the influence.
• Alcohol addiction may implicate disability issues
under ADA and related state laws

Enforcing Your Drug &
Alcohol Policy

• Employee Privacy Concerns
• Protocol and procedure for
employee searches
• Circumstances requiring your
personnel to undergo testing
Enforcing Your Drug & Alcohol
Policy

Enforcing Your Drug & Alcohol
Policy: Testing
• Pre/Post Offer Testing
• Reasonable Suspicion
Testing
• Random Drug Testing
• Post-Accident Testing

Best Practices
• Have a written policy that
– Clarifies expectations for applicants and
employees
– Addresses marijuana and alcohol use
– Specifies the circumstances under which you
will require an individual to undergo testing;
CAUTION: must comply with state laws
protecting employee privacy
• Prevent inconsistency – avoid discrimination
• Give clear guidance for supervisors’ actions

Where The Road Is
Going To Take You in
2016
Presented by:
Bethanie Barnes, Esq.
Email: Bbarnes@laborlawyers.com
Visit HireRight.com for more info on Background Screening.

Where the Road Is Going to Take You in 2016?

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