An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

urinals2Connecticut’s drug testing statutes applicable to employers have always been a bit tricky to follow.  I covered the basics of these laws back in 2010 (you’ve been reading that long, right?).

For job applicants, employers must follow certain rules. Once an applicant becomes an employee, a new set of more stringent rules apply.

But to what?

In a case earlier this year, a Connecticut Superior Court had to address that issue and more. In the case (Schofield v. Loureiro Engineering Associates), the plaintiff was forced to undergo drug testing of his hair by his employer, two weeks after starting. He was fired as a result of the test.

The employee claimed that the restrictive drug testing rules of Connecticut law should apply. However, the Superior Court said otherwise.  It found that the rules regulate urine-based drug testing only, not any OTHER form of drug testing.

[The drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing. . . . While the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from the disparate protections made evident in this opinion are undeniable, “the task of changing the law lies with the legislature and not with the judiciary.”

So, does this mean that employers are free to engage in all sorts of drug testing? Well, perhaps not. While disallowing any claim under the state’s drug testing laws, the Court did allow a “wrongful discharge” claim to proceed.

Thus, what the court giveth, it also taketh away.

For employers, drug testing of current employees in particular is fraught with challenges. Be sure your program meets all legal requirements (both state and federal) and use this case as a warning sign. Things aren’t always what they seem.

In various posts, I’ve talked about how there is a slow but increasing trend to encourage employers to “ban the box” when it comes to job applications. That catchy (yet non-descriptive phrase) refers to a checkbox that is often found on job applications that asks applicants if they have any criminal convictions.

The news this week on that issue is that Target is the latest big employer to adopt such a  practice.    This is also in response to the EEOC’s guidance from 2012 strongly encouraging employers to eliminate the practice. 

It’s quite likely that the Connecticut General Assembly will also revisit the issue in the upcoming 2014 legislative session.

For employers, it’s important to note that banning the “box” does not mean that employers shouldn’t consider past convictions at all in determining an employee’s eligibility for employment.  Rather, like many background checks, the employer in those instances will wait until the applicant reaches the interview stage or gets a conditional job offer to ask about those convictions.

Right now though, EEOC guidance notwithstanding, private employers still remain free (mostly) to use those convictions as they see fit in the hiring process.

Public employers have some additional restrictions, so if you’re using criminal convictions to make decisions about who to hire, make sure you understand all of the limitations, which cannot be fully summarized in a single blog post.

Footnote: In an earlier post last July, I criticized the Office of Legislative Research for a report that I thought did not accurately state the status of the law in the area. I’m pleased to report that the OLR has updated their report to better reflect the status and I strongly recommend it as further background on this important subject.

At a Sentencing Commssion hearing last week, former state lawmaker Ernie Newton — who was convicted in 2006 on corruption charges — urged commission members to address hiring discrimination against ex-felons, reports CT News Junkie.  There is no indication yet that they will do so, but his comments raised some eyebrows in the press.

Newton’s comments aren’t the first time, though, that the issue of hiring discrimination against felons has surfaced as a legislative proposal.  Back in 2010, the legislature overrode Governor Rell’s veto of a bill that restricts the use of background checks for state job applicants. 

Despite that, private employers are still free to make hiring decisions based on a criminal conviction. 

The topic is not going away any time soon.  In April, the EEOC released new guidance that suggested that employers use arrest and criminal records in their decision-making process with care.  The agency suggested that under some circumstances, there may a violation of Title VII if used improperly. 

With the state budget again dominating discussions, it is unclear yet whether the General Assembly has any desire to take up legislation on this topic any time soon.  The “long’ year begins on January 9, 2013 and runs to June 5, 2013.

UPDATED June 9, 2011 – The House approved the measure late last night, June 8th. For additional details, see this updated post.

In the closing hours of the General Assembly’s term, the Connecticut Senate has passed a bill yesterday that would ban the use of credit reports by employers in many situations.

Senate Bill 361 passed along party lines and can be viewed here. It now goes to the House for a possible vote by the end of the term.

Will Employers Be Banned From Using Credit Score Numbers?

The bill, in its present form bans employers from requiring employees or prospective employees to consent to a request for a  report that contains information about the employee’s or prospective employee’s credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers.

There are several exceptions, however:

  • Employers that are “financial institutions” as defined by the statute;
  • The report is otherwise required by law;
  • The employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law related to the employee’s employment,
  • The report is substantially related to the employee’s current or potential job or the employer has a bona fide purpose for requesting or using information in the credit report that is substantially job-related and is disclosed in writing to the employee or applicant.

And what does “substantially related to the job” mean? Well, the bill also contains a definition for that as well.  According to the bill, it means that the position:

  • Is a managerial position which involves setting the direction or control of a business, division, unit or an agency of a business;
  • Involves access to customers’, employees’ or the employer’s personal or financial information other than information customarily provided in a retail transaction;
  • Involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, collect debts, transfer money or enter into contracts;
  • Provides an expense account or corporate debit or credit card;
  • Provides access to (i) confidential or proprietary business information, or (ii) information, including a formula, pattern, compilation, program, device, method, technique, process or trade secrets; or
  • Involves access to the employer’s nonfinancial assets valued at two thousand five dollars or more, including, but not limited to, museum and library collections and to prescription drugs and other pharmaceuticals.

As you can see, these exceptions are numerous. Of course, what is a “managerial” position in this context? The bill is silent.

And even if an employer falls within an exception, the employers still has to comply with the Fair Credit Reporting Act.

As for the scope of the bill, all employers (those that have 1 or more employees) would be covered by this bill.  If approved by the House (and signed by the Governor), it would become effective October 1, 2011.

 

While some matters get all the headlines, the work of the state and federal courts move on.  One such case came out earlier this week and I highlight it because it touches on a point that employers sometimes lose sight of — the ability to still make subjective decisions and have that decision supported by a court later on.

The case, Spell v. State of Connecticut (D. Conn., March 17, 2009)(Thompson, J.) (download here), relates to an applicant’s claim that he was not hired for a position with the Chief State’s Attorney’s office because he was African-American. He claimed he was “more qualified than any of the Caucasian applicants selected to fill the … positions.”  He also claimed that he was more mature and has more education than the Hispanic applicant who was ultimately hired for the position and that he had more experience than that person as well. 

The court granted the State’s motion for summary judgment, effectively dismissing the applicant’s claims on multiple grounds.  Part of the court’s decision focused on the theory that courts will not circumvent the judgment of the employer and that even subjective criteria are allowed in some circumstances:

Although Spell alleges that he was “more qualified than any of the Caucasian applicants selected to fill the … positions,” this allegation is insufficient to support a conclusion that the Chief State’s Attorney’s enumerated reasons were pretextual in this case…. Employers may base their hiring decisions on some subjective criteria.  Title VII only requires that a hiring decision not be based on a discriminatory reason; it “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position.” Thus, it was not improper for the Chief State’s Attorney to base its decision to internally promote [one person], rather than accept a new hire, on its subjective impressions of his work.

What’s the Take Away for Employers From This Case?

Employers have to make difficult hiring and hiring decisions all the time.  Every attempt should be made at the time to base the decisions on supportable items.  Objective criteria (this person has a certificaion that another applicant doesn’t) always help, but that does not mean that you should disregard subjective criteria (this person was more enthusiastic at the job interview) entirely. Courts willl support employer decisions in those cases but, as is the case above, the employer had some pretty good explanations for the court to rest its analysis on.

It’s been a little while since I’ve discussed quirky statutes that are often overlooked or misunderstood when talking about employment laws in Connecticut. Certainly, the drug testing laws in Connecticut may not be overlooked, but portions of it are often misunderstood.

Indeed, I suspect that many employers (and lawyers) are unaware that an "employee" as defined in the drug testing laws might include people who are not current employees of the company. This has important implications about who and under what circumstances an employer can test individuals for drugs.  Let me explain:

One of the lessons I can vividly recall from law school is the admonition of a law professor to always look at the definitions of words in particular laws. The cautionary tale that he told was that just because you think a word has a simple definition doesn’t mean the legislature has conferred the same commonly understood definition.

The drug testing statute is a perfect example of this. 

In Conn. Gen. Stat. 31-51t(1), an employee is defined  as "any individual currently employed or formerly employed and currently being rehired by the same employer within twelve months of terminating his employment, and includes any individual in a managerial position".  (Compare this with the definition of "employee" for purposes of paying wages.) This means that persons protected under the statute from certain types of screening may also include some types of former employees as well.

Connecticut rules provide employers with flexibility to drug screen job applicants, but prohibit various forms of testing on current employees (with notable exceptions for certain positions or if the employer has a "reasonable suspicion" of drug use).  The effect of this statute, therefore, is that employers who rehire people who worked for the company in the last year cannot typically test them for drugs — even though they might use that same procedure on other job applicants. 

Employers who would like to implement and administer a drug testing program in Connecticut need to remain vigilant to these types of quirks and ensure that their policy and procedures are aligned with how the drug testing laws in Connecticut are set up.

For employers in Connecticut, this isn’t exactly the best of times. But it isn’t the worst of times either. That seemed to be the message of a variety of economists at a conference I attended yesterday sponsored by the Connecticut Business & Industry Association.

In fact, a CBIA survey released yesterdacourtesy morgue filey (and sponsored by Blum Shapiro) found that a slight majority of Connecticut businesses responding expect growth over the next year but that executives were neither "overly positive nor negative about business conditions for their companies".  Several economists pointed out at the conference that Connecticut has fared better than the rest of the nation over the last year and that the state is much better off than the recession of the early 90s when nearly 160,000 jobs were lost in the state.

The mixed messages were discussed both at the conference and can be found in the survey too.  For every number that was raised as a positive, another number could be found as a negative.  For example, 67% of employers added new jobs last year, but 61% of employers are also coping with workforce shortages.  

As a result, the survey concludes that "to stay productive and competitive, employers may need to try new approaches to recruiting employees and developing and retaining incumbents."

A representative from AT&T at the meeting suggested that one option may be telecommuting and he relayed the fact that AT&T is going to have nearly 2000 employees off the roads soon with telecommuting.  But for other employers, other solutions are going to need to be explored.  Working with legal counsel can ensure that these options don’t create more problems than they solve (such as overtime issues, etc) but these types of issues are also going to require more than just legal advice.   As always, the businesses that can adapt quickly to these changes are the ones that are most likely to succeed in the long run.

With iPods becoming ubiquitous, I’m sure I’m not the only one who feels like they are listening to more music in general.  A favorite song of mine is "So Much to Say" by the Dave Matthews Band song.  (Don’t try reading too much into the lyricsPublic Domain — there isn’t much there.)  But this week, "So Much to Say" seems an appropriate label for all the great articles relating to labor & employment law.  There’s "Too Much" to write about individually, but here are a few of the posts that warrant a mention for one reason or another.  

  • Kris Dunn, over at HR Capitalist, has a thought provoking post this morning about whether the paying of staff by Jay Leno is a good or bad thing for the union in the writers strike. The comments, including by yours truly, show that this is no ordinary strike. 
  • George Lenard, over at George’s Employment Blawg, has a great post today about asking whether today’s job applicants are dumber.  He reports that "A recent press release from Wonderlic, Inc., reporting on a new study of company data, says applicants today aren’t as smart (lower cognitive ability) as similarly-educated applicants of yesteryear."
  • Paul Secunda, at the Workplace Prof blog posted a thorough analysis of the transcript of the oral argument in the Supreme Court case yesterday (you can find the transcript here). In that ADEA case, one of the issues presented is whether a plaintiff-employee can present evidence of other employees who also claim that they were discriminated against.  It remains to be seen where this case will come out.

    Ultimately, Paul concludes:

I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don’t think he has a majority on that point.

George Lenard, who runs the popular "Employment Blawg", has an interesting post this week about how current job seekers will have to undergo different scrutiny than perhaps the last time that they engaged in a job search.  As George notes, the biggest change is the prevalent use of background checks by employers.  George provides some useful tips to job seekers about what this means during the interview process.Searching for Information

For employers, some (but by no means all) will use these checks without a clear understanding of the laws that may be implicated. Indeed, some employers who do hiring infrequently, may not be aware of the extent of the development of this area of law.  This post will discuss one aspect of such compliance — the Federal Fair Credit Reporting Act.   

As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes: 

(1) the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
(2) the company must make certain representations to the consumer reporting agency from which the report is procured; and, 
(3) the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

The first and third obligations require a bit more explanation.  What is meant by the first requirement? Typically, a clear and conspicuous disclosure– in a stand-alone document — in writing to the applicant that the report may be obtained for employment purposes, and then, written authorization from that applicant.

Regarding the third set of requirements, before not hiring the employee based, in whole or in part, on information in  that report, the company must provide a copy of that report and a description of the applicant’s rights.  After taking an adverse action (i.e., not hiring the applicant), the company must provide further notice of the adverse action in a format that discloses, among other items, the name, address and phone number of the company that provided the background check. 

Of course, there are other state requirements that may apply, in addition, to other rules under FCRA itself.  For example, there are additional requirements for the use of "investigative consumer reports" and there are exceptions to the above rules (such as when criminal activity is suspected) that may apply. 

But for employers using background checks, alarm bells should go off when doing so.  In today’s age when doing a background check appears as simple as typing in some names or social security numbers into a computer database, nothing is that simple about these checks.   If employers are not following the rules, they risk substantial liability in the future for breaking them.  The Federal Trade Commission, the government agency responsible for oversight of this law, has a good primer on the subject for employers as well.