Criminal Background Checks and EEOC Enforcement

lemonRecent surveys demonstrate that nearly 92% of employers use criminal background checks for employment decisions. Public employers often have prescribed statutory background check requirements. Because a criminal background check (CBC) conducted by private companies are most often used by employers, employers need to be aware of their responsibility to obtain prior authorization from the prospective employee, and their need to insure that even with the private vendor doing the check that the employer is not violating Title VII. Further, the guidelines adopted by the EEOC layout safe harbor behaviors that a prudent employer should adopt.Continue reading

Avoid Litigation: Separate Performance from Protected Status and Separate by Agreement


It is no surprise that a problem employee’s performance issues are not the sole source of angst for an employer. Sometimes that problem employee seeks to protect their deficient performance by filing claims for a host of other issues that give the errant employee protected status. Perhaps they claim to be harassed by other employees or their supervisor. Perhaps they have claims that include unpaid wages, loss of breaks, loss of lunch periods, discrimination based on their protected status as a person of color, age over 40, gender or sexual preference. Believe it or not, a person can be subjected to unlawful practices and also be a terrible employee. By failing to fully investigate and deal with the protected status claims, whether intentional or not, you may subject your organization to litigation when you fire the employee for poor performance. Keep protected status and poor performance separate by dealing with both squarely and straightforwardly. Most importantly, deal with both.Continue reading

Making Lemonade: Just Cuz Or Just Cause Discipline?



Just Cuz Or Just Cause Discipline?


Just Cuz’ I want to is a sufficient reason for discharge in an at-will employment situation. In the public sector, “Just Cause” is a very common element of employment and is becoming more prominent in private sector employment. Some states integrate just cause into the fabric of the legal elements in “for cause” termination. In a true labor/employment written contract, when “just cause” is included as a basis for termination it looks something like this:Continue reading