Employers Must Exercise Caution When Using Employee Selection Tools

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Published on Tuesday, 24 April 2012 05:08

As highlighted by a recent lawsuit filed by the United States Justice Department (DOJ) employers must exercise caution when using employee selection tools (such as written examinations) for hiring or promotion purposes, because such tools can have a disparate impact in the workplace. In the lawsuit, the DOJ alleges that the city of Jacksonville, Florida, discriminated against African-Americans in its fire and rescue department. Specifically, the lawsuit challenges the fire department’s use of written examinations for the promotion of firefighters to four ranks – Lieutenant, Captain, and District Chief, all in the suppression line, and Engineer. The complaint filed by the DOJ asserts that the examinations have a disparate impact on African-American candidates in two ways. First, African-American candidates for promotion pass the examinations at much lower rates than white candidates. Second, even those African-Americans who pass the examinations are rarely promoted because the fire department allegedly selects candidates for promotion in descending rank-order based primarily upon each candidate’s written examination score and African-American candidates score significantly lower than whites. According to Thomas Perez, Assistant Attorney General for the Civil Rights  Division, “This complaint should send a clear message to all public employers that employment practices that have the effect of excluding qualified candidates on account of race will not be tolerated…At best, these tests measure only a slice of what is necessary to be a supervisor, but they stand in the way of qualified African-Americans advancing in the fire department. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”  Read More.

College Sued for Alleged Age Discrimination

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Published on Thursday, 19 April 2012 02:14

According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) Marymount Manhattan College refused to hire a choreography instructor for a tenure-track assistant professorship due to her age. Marymount is a private liberal arts college in New York City. The EEOC has charged that Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition. After determining that the 64-year-old was the leading candidate, Marymount’s search committee allegedly expanded its search to include a less qualified, 37-year-old applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.” The EEOC alleges that Marymount passed over the 64-year-old applicant and instead hired the 37-year-old applicant because of age. Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA). Elizabeth Grossman, regional attorney of the EEOC’s New York District Office, commented that “Older workers have the right to be evaluated based on their abilities and not based on their age. The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment ettings.” Read More.

Employers Must Avoid Discriminatory Hiring Practices

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Published on Tuesday, 31 January 2012 21:53

Title VII of the Civil Rights Act of 1964 prohibits discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In terms of hiring, employers must ensure that they are not excluding a particular class of protected individuals in violation of Title VII, such as all women. In a recent case, the Equal Employment Opportunity Commission (EEOC) charges that Mavis Discount Tire refused to hire women for a wide variety of positions even though some of the applicants had superior qualifications. The Millwood, New York-based company, which also operates as Mavis Tire Supply Corporation and Mavis Tire NY, sells tires and a variety of other automotive parts and services. The case involves the Mavis job positions of tire installers, mechanics, assistant managers, managers, and related positions. The EEOC alleges that since at least 2008, only one woman was employed in any of these positions out of approximately 800 employees. The EEOC also alleges that out of approximately 1,300 hires that Mavis made between 2008-2010 for the above listed positions, not one was female. Additionally, even though Mavis allegedly failed to properly maintain applications—which is itself a separate violation of federal law—the applications that were available indicated that Mavis rejected women with superior credentials and experience, and less qualified men were hired.

Anna M. Pohl, EEOC trial attorney, commented that “Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past.”

For employers concerned about possible discriminatory hiring practices in their workplace, the Office of Federal Contract Compliance Programs (OFCCP) has created a Guide for Small Businesses with Federal Contracts, which contains helpful information even for those employers who are not dealing with federal contracts. Specifically, the OFCCP created a self-audit for employers to take in order to assess their hiring practices in the workplace, to ensure that discrimination is not occurring. On the issue of discriminatory hiring practices, the self-audit asks: (1) Were there women and minority applicants? (2) What were their qualifications? (3) How did their qualifications compare to the qualifications of the people who were hired? (4) Why did the decision-makers select those hired and not the women and minority applicants who seemed to have comparable qualifications? (5) Were all the qualifications necessary for successful performance of the job? Employers would be wise to keep this checklist as a guide when hiring and to take the self-audit created by the OFCCP to help ensure that they are not engaging in discriminatory workplace practices. For more information on the self-audit, click here.

Labor Commission Issues Updated FAQs on Wage Theft Prevention Act

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Published on Thursday, 26 January 2012 20:06

On January 23, 2012, the California Labor Commissioner released an updated and expanded version of the previously issued “frequently asked questions” (FAQ) related to the new Wage Theft Protection Act (AB 469). The Wage Theft Prevention Act went into effect on January 1, 2012. The new legislation amends existing laws, and adds new requirements which “criminalizes willful violations for non-payment of wages after a court judgment or final administrative order; requires restitution to the employee in addition to a civil penalty for failure to pay minimum wages; requires that specified information be provided to employees at the time of hire and in wage claim proceedings and that employers update changes within specified periods; extends the time period for obtaining judgments on final orders for collection of penalties by the Division of Labor Standards Enforcement (DLSE); enhances bond requirements for employers with convictions or court judgments for non-payment of wages including requiring an accounting of assets upon request by DLSE or court order; establishes that penalties under the Labor Code for failure to comply with wage-related statutes are minimum penalties; and allows employees to recover attorney’s fees and costs incurred to enforce a judgment for unpaid wages.” 

The new legislation also requires that employers provide notice to employees of  their rate(s) of pay, designated pay day, the employer’s intent to claim allowances (meal or lodging allowances) as part of the minimum wage, and the basis of wage payment (whether paying by hour, shift, day, week, piece, etc.), including any applicable rates for overtime. The new law also requires that the notice contain the employer's "doing business as" names, and that it be provided when the employee is hired and within 7 days of a change, provided the change is not listed on the employee’s pay stub for the following pay period. The notice must be provided in the language the employer typically uses to communicate workplace information to the employee. The Labor Commission has provided translated notices. The Commissioner is also recommending that all non-exempt existing employees be provided with the same information although the new legislation only pertains to new hires. A template has been provided by the Commissioner which can be found at: http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html. Read More.