Editor's Note: This is the fourth of five articles this week by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2017. Below, a quick look at two important employment issues that could arise next year.
Momentum for ‘Ban-the-Box’ Continues to Grow
Last year I wrote an article about the "ban the box" movement — an initiative intended to prevent employers from learning about and considering the criminal history of an applicant in the early stages of the hiring process.
The initiative, which delays the background check inquiry, is intended to provide job applicants with a criminal record a more fair chance to make their qualifications known to prospective employers.
Momentum for the policy continues to grow with a total of 24 states now having adopted statewide policies, according to the National Employment Law Project. Additionally, nine states have now removed the conviction history question from job applications for private employers. Although Arkansas has not yet adopted a statewide policy, Pulaski County has now joined the movement by unanimously passing an ordinance removing criminal history questions from the county’s initial employment applications.
The stated purpose of Pulaski County Ordinance 16-1-29A, which took effect in August, is to assist in the “successful reintegration into the workforce of people with criminal records by removing barriers to employment and enhance the health and safety of the community by assisting people with criminal records to lawfully provide for themselves and their families.” The ordinance requires that background checks are delayed until after a conditional offer of employment is made.
If a background check reveals an offense, the county is required to conduct an individualized assessment that consists of a consideration of the nature and gravity of the offense, the time passed since the offense and the nature of the job.
If Pulaski County rescinds an offer of employment based on a finalist’s criminal history, the applicant must be provided with an adverse-action letter that specifies the deadline by which the applicant may contest the accuracy of the reported information or provide evidence of rehabilitation.
Attorneys with expertise in employment screening can help private sector employers who are considering the implementation of a ban-the-box policy. Human resource professionals should be prepared to discuss with counsel the company’s current hiring process and to provide documents that are involved in the hiring process, including employment applications, offer letters and adverse-action notices.
(By Regina Young, a partner at Wright Lindsey Jennings in Little Rock. Her active trial practice includes defending employers in federal and state court litigation and appeals. Email her here.)
Protected Concerted Activity Under the National Labor Relations Act
Recently, the National Labor Relations Board (the board) seems to be focusing more on violations of the National Labor Relations Act (the act) involving non-unionized employees.
That’s right, non-union employees as well as employees represented by a union are protected by the act. Under Section 7, employees have a right to engage in "concerted activities for the purpose of … mutual aid or protection" or "protected concerted activity."
Protected concerted activity involves two or more employees taking action for their mutual aid or protection regarding terms and conditions of their employment. The board’s concept of the type of conduct protected by Section 7 is broader than you might expect.
For example, an employee at a used car dealership in Yuma, Arizona complained to his manager about how sales commissions were being calculated. Later, the owner asked the employee to come to a meeting in the sales manager’s office.
During the meeting, the employee lost his temper and began yelling at the owner calling him a "f--king motherf--ker," a "f--king crook" and an "a--hole." He also told the owner he was "stupid" and stood up during the meeting, pushed his chair aside and warned the owner that if he was fired, the owner would "regret it."
The employee was fired by the owner for his conduct at the meeting. After reviewing the facts, the board concluded that the employee’s conduct was protected by Section 7 of the act and it was against the law for the owner to fire him.
In a similar case, an employee of a catering company became upset because he thought a supervisor had been disrespectful of his co-workers.
The employee posted on Facebook that the supervisor was "a nasty mother f--ker," a "loser," and said "f--k his mother and his entire f--king family."
When the posting was brought to the attention of the employer, the employee was fired. The board found that the employee’s Facebook posting was not so egregious as to lose protection under Section 7 of the act. The board ordered the employer to reinstate the employee and pay him full back pay.
Employers must be very careful how they deal with situations that could involve an employee engaged in protected concerted activity under the National Labor Relations Act.
Currently, the five-member National Labor Relations Board consists of only three members: two Democrats and one Republican. The two vacant seats will be filled by President-elect Trump, giving Republicans majority control.
But this does not mean that employers should expect immediate relief from what some would consider overreaching decisions by a board controlled by President Obama’s appointees.
(By John Davis, a partner at Wright Lindsey Jennings in Little Rock. He represents employers in labor and employment law matters and workers' compensation defense. He advises clients in connection with wage and hour issues, union activity, and employment policies and agreements. Email him here.)