Recent Developments Highlight Need to Conduct
Individualized Analysis of Criminal Background Checks
Larry S. Perlman
As pre-employment criminal background checks have become
the norm, employers must take care to ensure compliance with federal and state
laws regarding use of criminal conviction data. Because of historically
disproportionate rates of incarceration among African-American and Latino
individuals, the EEOC has long considered exclusion of applicants based on
criminal conviction history to be per se evidence of race discrimination.
According to the EEOC, a company's criminal conviction
policy that disparately impacts African-American or Latino employees violates
Title VII unless the employer can show that the policy is job-related and
consistent with business necessity. In 1987, the EEOC issued a Policy Statement on the Issue
of Conviction Records under Title VII, which provides that in order
to meet this standard, companies must conduct an individualized analysis,
considering three factors for each applicant:
In 2008, the EEOC announced that discrimination related
to criminal background checks was a key action items of its five-year E-RACE Initiative aimed at eliminating 21st century manifestations of discrimination.
Accordingly, the agency has aggressively conducted investigations alleging discrimination
based on applicants' criminal backgrounds. This issue promises to remain a hot
area of enforcement. On July 26, 2011, the EEOC held a public meeting to "Examine Arrest and Conviction
Records as a Hiring Barrier". Although the EEOC did not
announce whether it will update the 1987 policy statement, commissioners in
attendance made it clear that this issue remains a high-priority enforcement
State and local jurisdictions also have passed
legislation addressing criminal background checks. For example,
Criminal Record Screening Standards Ordinance,
which became effective in July 2011, prohibits employers from requiring job
applicants to disclose their criminal histories prior to the first job
interview. Employers that do not conduct interviews are absolutely barred from
making any inquiries or gathering any information about an
applicant's conviction history.
Employers doing business in Philadelphia should review
and update their policies as necessary to ensure compliance with the new
ordinance. On a broader level, all employers should review their criminal
background check policies to ensure compliance with federal, state, and local
law. At a minimum, instead of absolute bans on hiring employees with criminal
convictions, companies must ensure that they are performing an individualized
analysis of each applicant's situation, in accord with the factors described
"You're Fired" Does Not End H-1B Employment
Anita M. Sorensen
Making a Donald Trump "you're fired" announcement may be
sufficient to end the employment relationship with most employees, but not with
those relying on H-1B employment authorization. As shown by Limanseto v. Ganze & Company,
OALJ Case No. 2011-LCA-00005 (June 30, 2011), failing to take the additional
steps required to complete a "bona fide H-1B termination" can be costly. An
administrative law judge (ALJ) recently found Ganze, a California accounting
firm, liable for back pay and other costs of more than $150,000 even though Mr.
Kevin Limanseto, the foreign worker, provided no services during the period
authorized for H-1B employment.
Under the H-1B classification, an American company may
seek permission to employ a foreign worker temporarily in a specialized,
professional position. The employer faces a complex regulatory scheme in
seeking, maintaining, and ending H-1B employment authorization. In 2008, Ganze
filed papers with the U.S. Department of Labor (DOL) and the Department of
Homeland Security (DHS) to seek authorization to employ Mr. Limanseto in H-1B
status as an accountant. As required, Ganze made promises about the wages and
working conditions, and promised to pay the reasonable return transportation
costs if it terminated Mr. Limanseto before the expiration of the H-1B
authorization. DHS approved the H-1B petition for employment from October 1,
2008 through September 21, 2011.
At the time Ganze filed the H-1B case, Mr. Limanseto was
already working for the accounting firm while he was in a different immigration
status. In August 2008 (before the H-1B authorization became effective), Ganze
told Mr. Limanseto he was fired. Mr. Limanseto went to work for another company
and then returned overseas at his own expense in 2009. In August 2010 (two
years after terminating him), Ganze sent a notice to DHS stating that the
accounting firm did not employ Mr. Limanseto. DHS promptly revoked the H-1B
petition approval. Mr. Limanseto filed a complaint with the DOL claiming back
pay for the full period approved for H-1B employment. The ALJ granted the
claim, stating, "immigration authorities and the Secretary of Labor expect to
be told when an H-1B nonimmigrant isn't working for the petitioning employer."
Because Ganze did not give timely notice to the government and did pay the
return transportation costs, the ALJ found Ganze liable for the full period
approved for H-1B employment - three years of back pay with interest. The ALJ
also refused to reduce the back pay award by the amount that Mr. Limanseto
earned in 2009 through other employment in the United States or for the time
period after he returned to live overseas. "The failure to prove every element
of a bona fide termination leaves an employer who petitioned for an H-1B
worker's admission liable 'for the entire period of authorized employment' . .
. ." (emphasis in original).
To complete a bona fide H-1B termination under federal
law, an employer must take the following steps:
As shown by Limanseto and other recent cases,
failure to comply with the H-1B regulations can result in substantial liability
and other sanctions being imposed against the employer. For example, see DOL v. Board of Education,
Case No. 2011-LCA-00026 (July 7, 2011), in which a school district was
ordered to pay more than $4.2 million in back pay for failing to comply with
H-1B regulations and is temporarily barred from filing further H-1B cases.
Labor and Employment Trivia
This week we add a new feature to our weekly Employment
Law Update, Labor and Employment Trivia. Following our regular articles
each week, there will be a trivia question with some historical perspective. It
is hoped that our readers will have some fun and learn a thing or two about the
field in which we work. The answer to each week's question will appear in the
following week's update. Readers are invited to send comments or suggested
trivia questions to Mark Neuberger at firstname.lastname@example.org.
This week's question: What labor union leader garnered
nearly one million votes for president of the United States while he was jailed
inside a federal prison?
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