Archives for December 2015
On November 2, 2015, President Barack Obama announced a new executive order to â€śBan the Box,â€ť which is a check off on federal job applications that requires job applicants to disclose their criminal conviction history on the face of the application. This initial disclosure often causes employers to eliminate applicants before ever considering their qualifications. Background investigations will still occur, but at the federal level, agencies will delay inquiries into criminal histories until later in the hiring process, perhaps after a conditional offer of employment has been made.
The National Employment Law Project (NELP) reports that 19 states have adopted â€śban the boxâ€ť policies. Seven of those same states have also removed the conviction history question on job applications for private employers.Â In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed removing the conviction question from job applications as a best practice indicating that federal civil rights laws regulate employment decisions based on arrests and convictions and that an automatic exclusion of an applicant based upon a prior criminal conviction may introduce discriminatory bias for workplace hiring decisions.Â Additionally, more than 100 Michigan counties and cities, including Genesee County, Saginaw County, Muskegon County, Detroit, Kalamazoo, Ann Arbor, and East Lansing have adopted â€śban the boxâ€ť policies. Private companies such as Target and Home Depot have also instituted ban the box policies for their organizations.
All of the 2016 Democratic presidential candidates have endorsed banning the box on applications and Republican presidential candidate Chris Christie signed a â€śban the boxâ€ť bill into law in 2014.Â In 2013, Michigan Representative Fred Durhal, Jr. (D-Detroit) proposed legislation (HB4366) to remove the criminal conviction request on employment applications, but this bill was not enacted into legislation.
Given what appears to be a growing national movement, the question remains as to what are the best employment practices for Michigan employers?Â Michigan employers must understand that both the Michigan Elliott-Larsen Civil Rights Act and Title VII of the Civil Rights Act of 1964 govern their employment practices. Although potential applicants with criminal convictions do not fit within a protected category, they could still claim unlawful discrimination based upon a negative disparate impact. Disparate impact is a theory of liability regarding a facially neutral employment practice (reporting criminal convictions upfront) that does not appear to be discriminatory on its face, but is discriminatory in its application or effect.Â Advocates for the removal of the conviction check on the face of the application argue that minority candidates are disproportionately excluded from consideration for employment. The 2012 EEOC Enforcement Guidance recommends that employers, after learning of criminal convictions, should assess whether an exclusion from employment consideration is consistent with business necessity by looking at the following factors:Â (1) nature and gravity of the offense or conviction; (2) how much time has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.Â The EEOC also suggests that if an application has been initially screened out because of a criminal conviction, an â€śindividualized assessmentâ€ť should be performed that would include re-notice to the applicant, an opportunity for the individual to demonstrate that the exclusion should not be applied due to his/her particular circumstances, and consideration by the employer as to whether additional information provided by the applicant warrants an exception to the exclusion. The EEOC also recommends that employers develop narrowly tailored written policies and procedures for examining applicants and employees for criminal conduct which could include identifying essential job requirements, determining specific instances that may demonstrate unfitness for performing certain jobs, and recording justifications for the policy and procedures utilized.
While states and local jurisdictions may have laws and/or regulations restricting or prohibiting the employment of individuals with records of certain conduct, for example daycare providers, school teachers, nonteaching school employees, and caregivers in residential facilities, if the exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation may not shield an employer from Title VII liability.Â CMDA will continue to monitor this issue to see if there is any forthcoming legislation that will impact Michigan employers.
Elizabeth Rae-Oâ€™Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.Â She may be reached at (734) 261-2400 or firstname.lastname@example.org.
Employers should re-evaluate the creation of indemnity with clients where workers are placed at client work sites and also analyze any existing indemnity provisions of contracts with others where either has agreed to provide indemnity.
The National Labor Relations Board (NLRB) reversed more than 30 years of precedent in the recent case of Browning-Ferris Industries of California, Inc., which effectively changed the rules regarding protection for previously protected employers.
Most employers found comfort that the NLRB would not likely consider them to be joint employers with other entities, such as franchisees, staffing agencies, and contractors/sub-contractors, unless they exercised â€ścontrolâ€ť over those entitiesâ€™ employees.Â This case, however, reaches beyond the NLRB and, if upheld through the appellate system, constitutes precedent for the proposition that more than one employer may be considered an employer, and hence responsible for whatever the other does, such as an improper firing, racial discrimination, sexual harassment, and so forth.
In the Browning-Ferris case, it was argued that both Browning-Ferris and Lead Point were joint employers because both entities could exercise â€śimmediate and direct control over the terms and conditions of workersâ€™ employment,â€ť with the NLRB coming down on the side of the new test.Â In reaching its decision, the NLRB did not accept the contention that an entity should only be considered a joint employer if â€śindustrial realitiesâ€ť made the entity â€śessential to meaningful bargaining.â€ťÂ Therefore, two entities may be considered joint employers of a single work force if they are both employers within the meaning of the common law and if they share or co-determine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, consideration is given to the various ways in which joint employers may â€śshareâ€ť control over terms and conditions of employment or â€śco-determineâ€ť decisions.Â The decision notes that a joint employer relationship will not be found based on a companyâ€™s â€śbare rights to dictate the results of a contracted service or to control or protect its own property.â€ťÂ Instead, the NLRB stated they will evaluate the evidence to determine whether a user employer affects the means or manner of an employeeâ€™s work and terms of employment whether directly or through an intermediary.Â Â In other words, the NLRB will no longer require that a joint employer not only possess the authority to control an employeesâ€™ terms and conditions of employment, but also exercises that authority.Â Therefore, reserved authority to control the terms and conditions of employment, even if not exercised, is clearly relevant to the joint employment inquiry.Â In this case, the client supervisorâ€™s detailed directives concerning employee performance, set conditions of hiring that the client was contractually bound to follow and had the authority to discontinue the use of any given employee, control the speed at which the workers were to perform their service, and other productivity standards. The contract between the entities gave the employer the right to control other terms and conditions, such as the right to enforce its safety policies against the employees supplied by the other entity.
This decision leaves employers guessing as to how much indirect control they must have over another entityâ€™s employees to be deemed a joint employer. It is unclear what one must do to â€śaffect the means and mannerâ€ť of the employeeâ€™s work and terms of employment and what it means to â€śshare or co-determine those matters governing the essential terms and conditions of employment.â€ť Therefore, to avoid joint employer status under the new test, an entity must take a more hands-off approach than ever before to the employees of the sourcing entity.
Some general rules can be established.Â All contracts must be reviewed with staffing agencies and other contractors to ensure that both entities are not performing management function. The new test takes into consideration whether the potential to control employees exists so all contracts should include language making clear that all such control tests and control rests with one entity. While a bulletproof contract can be helpful evidence, what ultimately matters is whether the parties conducted themselves in accordance with the language of the contract.
When communicating expectations, allow the client to set the goal and to define the means of achieving that goal. Once management is delegated to another entity, a joint employer relationship will evolve. Alternatively, if one entity is to be the sole employer, all decisions regarding firing, hiring, and the way work is done has to be left to that entity. The contractual language must decide whether the employer indemnifies the client or the client indemnifies the employer and the resulting pricing and profit margin have to be calculated to accommodate this dedicated risk. If the client understands there is a transference of risk included in the cost of doing business, a meaningful arrangement can be created, with the division of risks and resulting exposure to the various wage and hour laws, employment laws, civil rights laws, and unemployment compensation laws being dedicated to a single entity rather than two entities. The result would be to make the employer an integral part of the client management team. The client could avoid the secondary exposure by having the employer make these decisions. This effort requires confidence, a substantial expenditure of time, and careful contract draftsmanship, but can result in long-term relationships where the employer is not simply another vendor to the client, but an integral part of the management and decision process.
Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or email@example.com.
Stolle v. Kent State University
Dr. Ronald Stolle, a non-tenure track faculty instructor in the Department of Finance for Kent State University (KSU) sued the College and several administrators alleging retaliation for exercising his First Amendment Rights. The facts of the case show that on January 8, 2011, Dr. Stolle wrote a three page letter to the Speaker of the Ohio House of Representatives and other legislators on KSU Department of Finance letterhead. The letters addressed reform measures on higher education. Dr. Stolle said that these letters constituted his personal opinions. Dr. Stolleâ€™s use of the Collegeâ€™s letterhead was actually a violation of University policy as any and all dealings with government had to be approved under the direction of the president of the University. The Dean of the College of Business requested that the Chair of the Finance Department have a meeting with Dr. Stolle to advise him of the breach of University policy by use of the KSU letterhead. The meeting took place. Dr. Stolle maintains that he was advised to cease and desist all communications with legislators. The Finance Dean disagreed that this was stated and indicated Dr. Stolle was told to no longer use KSU letterhead for such communications. Dr. Stolle wrote additional letters to the Columbus Dispatcher and Cleveland Plain Dealer advocating the abolition of tenure at state universities. Dr. Stolleâ€™s appointment was still renewed for the 2011-12 academic year.
In January of 2012, the University, citing budget deficits, did not renew Dr. Stolleâ€™s academic appointment in 2012. The University denied that Dr. Stolleâ€™s letters to legislators or letters to the editor had anything to do with the non-renewal of his position.
The Court granted the College and several administrators Motion for Summary Judgment but did not dismiss the case against the Chair of the Department which went to trial. The trial against the Chair of the Department was confined to the issue of whether the Chair retaliated against Dr. Stolle in the exercise of his First Amendment rights. After a four day trial, a unanimous jury found that Dr. Stolle failed to prove the Department Chairâ€™s decision not to renew his employment contract was retaliatory for exercising his First Amendment rights.
On appeal, the United States Court of Appeals for the Sixth Circuit found that Dr. Stolle failed to prove that he suffered an adverse action and that he did not make out a prima facie case of First Amendment retaliation. The Court found that the primary focus of the meeting where Dr. Stolle was notified of policy violations concerned his use of the Collegeâ€™s letterhead to communicate with legislators. Dr. Stolle also admitted that no one ever told him his job was in jeopardy.
Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or firstname.lastname@example.org.
We are pleased to announce that Jennifer A. Richards has joined our Firm as an attorney in our Livonia office.
She focuses her practice on municipal law, insurance defense, law enforcement defense, and litigation and appeals. Ms. Richards writes briefs for submission to all levels of state and federal courts, arguing cases in all levels of state and federal courts of appeals, and performing research for all areas of law handled by the Firm.
Prior to joining CMDA, Ms. Richards served as a research extern at the Michigan Court of Appeals drafting research reports and proposed opinions for Michigan Court of Appealsâ€™ judges in criminal cases.Â Additionally, she worked as a student intern in the University of Detroit Mercy School of Law Veterans Clinic assisting military veterans with their benefit requests before the Veterans Administration.
Ms. Richards may be reached at (734) 261-2400 or email@example.com.