Posted in EEOC, employment
In light of an influx of employers being sued for pregnancy discrimination — and losing their cases — in recent years, the Equal Employment Opportunity Commission released new guidelines to help employers prevent pregnancy discrimination earlier this month.
The new guidelines say that denying a woman work, or demoting or firing her due to pregnancy, intent to become pregnant, previous pregnancies, or being afflicted with a pregnancy-related medical condition is illegal and a form of sex discrimination. Related medical conditions can include mandatory bed rest, complications after delivery, lactation and even minor problems such as back pain. Employers are required to make “reasonable accommodations” for these and other pregnancy-related medical conditions, which may also qualify under the Americans With Disabilities Act.
Mind Your Business is pleased to hear the EEOC is paying attention to this issue, and fully supports the EEOC in its initiatives against pregnancy discrimination.
Just days before the new guidelines were released, the EEOC sued CCR Wellness Investments — also known as the massage chain Massage Envy — after a clinic manager in North Carolina fired an employee because she was pregnant. The employee, Morgan McCloskey, found out she was pregnant in the days between her interview and her first day of work. She informed the clinic manager of her pregnancy on her first day, and was fired four days later. The clinic manager said that “pregnant women should not be working,” according to EEOC documents.
Before the new guidelines were released, the EEOC’s pregnancy discrimination information had not been updated since 1983.
The Pregnancy Discrimination Act protects women who are pregnant from discrimination in the workplace. That act is an amendment to the Civil Rights Act of 1964.
photo credit: Sean Molin Photography via photopin cc
Posted in background checks, criminal background checks, criminal record
A recent audit of Michigan’s Medicaid Home Help Program found that, as of January 1, 2013, there were 3,786 home-healthcare providers who had a previous felony conviction on record. The audit also revealed that state social workers did not meet with those who required home-health care — or their families — to determine if proper care was being provided, and that the state had spent $160 million of Medicaid’s funds improperly between October 2010 and August 2013.
Michigan currently has 70,000 home-healthcare aides, which means approximately 5% of them had previously been convicted of a felony. Those convictions include homicide, sexual assault, drug abuse, financial crimes and more.
According to the audit report, the Department of Community Health and the Department of Human Services had been considering criminal background checks for several years without a plan being implemented.
The excuse for not implementing criminal background checks is that it is fairly common for families to hire individuals for home-health needs instead of going through an agency to hire a reputable, screened employee. It is therefore possible that families know the history of the person they are hiring, especially if it is a relative or friend.
In a memo that came out recently from the Department of Health and Human Services, Michigan was listed as a state that requires background checks for home-healthcare employees, though workers are allowed to perform their job duties for an indefinite period of time, so long as a background check is still pending.
However, even if other background checks had been conducted, Michigan law does not require criminal background checks specifically. Auditors recommended that, even if not required by state law, home-health workers should undergo criminal background checks prior to being hired by agencies, individual providers and subcontractors.
The director of the Department of Community Health, James Haveman, said that a new policy regarding background checks would be in place by the end of July to prevent future incidents.
“It’s not going to allow people who have been charged with murder or Medicaid fraud,” Haveman said. “They’re not going to be permitted as part of this program. I’m confident that we’ve tightened up this program and it will be tighter moving ahead.”
Posted in drug screening, drug test, drug testing, employee drug screening, pre-employment drug tests
As states pass legislation legalizing the use of marijuana, employers are finding themselves in a tough spot. Especially if they have policies in place that require applicants to pass a pre-employment drug test before an offer is extended.
Obviously, employers want to know that the people they hire are going to be good workers and that they will not put other employees — or the company — at risk for safety issues. Therefore, many companies have previously chosen to conduct a pre-employment drug test on potential candidates to ensure the applicant is not one of the 23.9 million Americans that are drug users.
But when states like Colorado have legalized marijuana — or as states such as California are considering legislation that would legalize the drug — can employers choose not to employ a candidate who uses a completely legal substance off the clock?
After marijuana was legalized in Colorado, the Mountain State Employers Council created guidelines to help the state’s employers with their drug-testing policies. Their guidelines state that employees cannot be punished for legal off-duty activities, but that employers can still conduct a pre-employment drug test on applicants (and refuse to hire legal drug users) without worry of discrimination.
Meanwhile, some employers prefer not to conduct drug tests at all, because the legalization of cannabis creates a gray area that’s akin to the space between a rock and a hard place: should it be treated as alcohol, fine in moderation? Or should its use be considered equivalent to an illegal substance? And how does marijuana usage fall in regard to zero-tolerance policies?
Traditional drug tests screen for nine different types of substances, including opiates, barbiturates, amphetamines, and THC, the active ingredient in marijuana. Some expect that, as marijuana usage becomes legal in more states, a standard pre-employment drug test will need to be changed to only test for harder substances. Others are likely to follow in Colorado’s footsteps, and revise their existing drug-testing policies to account for what the company will and will not allow in regard to hiring legal drug users.
Posted in EEOC, employment
The Equal Employment Opportunity Commission has released a new set of guidelines to help employers avoid discrimination lawsuits, this time in relation to avoiding discriminating against those who practice specific grooming habits or wear religious garb to their place of work.
Since 1964’s Civil Rights Act (Title VII), employers have been required to make exceptions for those who hold sincere religious beliefs — except in the event of “undue hardship” — and accommodate those religious garments or grooming habits. This can include religious clothing or accessories; shaving habits or wearing the hair, sideburns or facial hair in specific ways; and refusing to wear clothing that does not adhere to one’s belief system.
The EEOC, under these new guidelines, does allow employers to refuse religious accommodations if they threaten the health safety of other employees.
Customer preference or disturbance of co-workers does not constitute “undue hardship,” though the guidelines do not provide more information about what actually does constitute hardship for employers. Employers are also not allowed to require someone to cover up religious clothing or behaviors, or be placed in non-customer-facing jobs because of perceived or real customer bias.
The EEOC clarified that one’s religious adherence and practices may evolve over time, and that if specific grooming habits or garments are simply personal preference and not worn for religious purposes, that behavior is not protected under the Civil Rights Act.
Due to these new guidelines, it is expected that employers will see an upswing in EEOC religious discrimination litigation in the coming months.
Last month, the EEOC underwent a hearing before the House of Representatives to determine whether a previous guidance report that was released in 2012 has allowed the Commission to overstep its bounds. Information on that hearing has not been updated since June 10th.
Posted in background legislation, background screening, criminal background checks
After former Maryland M.D. William Dando had his medical license suspended following allegations of sexual assault, the state is now considering re-visiting legislation that would require all healthcare providers, including doctors, to undergo background checks.
Maryland is one of only 13 states that does not currently require background checks on doctors. The state had considered legislation as recently as last year (and as early as 2007) regarding whether healthcare professionals should undergo background screening, but after legislators could not agree over a single word’s usage during the 2013 assembly, the bill was dropped and not reintroduced.
However, as of this year, chiropractors, counselors and therapists — for both mental health and physical recovery — are required to undergo background checks per the state regulatory board.
Dando was able to get his medical license in Maryland, and practice medicine in the state for nearly two decades, before it was found that he had a previous conviction in another state for raping a woman at gunpoint. That conviction was from 1987, and he served four years of a 10-year sentence.
Now, Maryland’s Board of Physicians — the board that approved Dando’s license — will meet this summer to discuss options for screening, moving forward. Previously the Board only asked its applicants if they had previous convictions or arrests. Dando allegedly told the board that he had a previous assault conviction, but it may not have been investigated, and Dando was allowed to obtain his medical license in 1996.
Dando has pleaded not guilty to the new sexual assault charges, which were brought against him in April. His trial is scheduled for September.
If the Board of Physicians decides to approve a mandate to screen all doctors, it will then have access to the FBI’s national criminal database.
Posted in employment
According to the Bureau of Labor Statistics’ monthly news release, the unemployment rate decreased in June to 6.1 percent, down .2 percentage points from the previous two months. Almost 300,000 new jobs were available last month — thanks to growth in professional services, healthcare and other industries — and the number of unemployed people in the U.S. has declined by more than 2.3 million over the past 12 months.
However, the unemployment rate for teenagers increased in June to 21 percent.
Overall, June had a good month for growth, with 288,000 new jobs added. This number is higher than previous monthly averages of only 272,000 new jobs per month.
- Professional and business services saw 67,000 new jobs — also higher than its previous monthly average of 53,000 jobs — primarily in consulting positions, engineering services and computer systems.
- Forty thousand new jobs were added in the retail industry as well, primarily related to auto part dealers, electronics stores, and building and garden supply shops. Previously, the monthly average for retail work was only 26,000 new jobs.
- The healthcare industry also saw a gain of 21,000 jobs, a number fairly consistent with its previous average of 18,000 jobs added per month. Most of the new jobs were for ambulatory care services, though nursing facilities benefitted from the growth as well.
- The transportation, financial, trade and manufacturing industries also saw employment improvements, totaling 65,000 new jobs across all industries.
Mining, government construction and information jobs did not change significantly in June. None of the industries listed saw a decrease in the number of available jobs.
Posted in background checks, criminal background checks, nursing homes
According to a memo released by the Department of Health and Human Services, 10 U.S. states do not require any background checks on employees who work for home health agencies. There are currently no federal laws in place that mandate that background checks must be completed for those who work directly with individuals in need of in-home healthcare services.
The states that do not conduct any background checks on home healthcare workers are Alabama, Montana, New Jersey, North Dakota, South Dakota and Wyoming. Connecticut, Georgia, Hawaii and West Virginia also do not currently run background checks on home health workers, but these four states are in the process of developing screening policies.
The other 40 states, as well as the District of Columbia, have varying checks in place to prevent criminals from working with the vulnerable people that require in-home health services. These checks vary wildly, however, with some states only requiring state-wide checks and others conducting fingerprint or federal checks. Employees are allowed to begin work before all screening processes are complete in 26 states.
States also have varying rules about which crimes bar ex-convicts from employment as a home care worker. Only 35 states specifically lay out which types of felonies prohibit one from in-home work, and individuals are able to apply to have previous convictions waived in 16 states.
State-funded Medicaid programs and agencies that do not deal with insurance may have different rules than Medicare-funded home health programs, and therefore may not conduct the same screening policies.
You can view more information about the study and specific state requirements in the memo.
To learn more about protecting your loved ones who require in-home care, contact Mind Your Business.
Posted in background checks, criminal background checks, employment background screening, public service
Last month in Los Angeles, hundreds of California taxi drivers came together at City Hall to protest ride-sharing companies for their presumed lack of employee criminal history and fingerprint background checks, among other things.
The taxi drivers protested that ride-sharing app companies — such as Lyft, Uber and Sidecar — have fewer regulations and safety provisions than taxicab companies, and that the public would be safer utilizing traditional taxi services.
The taxi drivers also claimed that cab companies provide full insurance on all its drivers and vehicles. After the protest, Uber said in a statement that they already carry $1 million in commercial insurance policies on all its vehicles — as do Sidecar and Lyft — on top of the insurance policies that the individual drivers carry.
Uber also says that it conducts county, state and federal employee criminal history checks on all its drivers and contractors. Uber recently imposed a “safe ride” fee to put toward additional background checks and security after some allegations were brought against the company, most recently that one of its drivers was arrested for allegedly kidnapping a woman.
However, taxi companies are not immune to safety problems related to its drivers. Just months ago, it was discovered in court that Yellow Cab did not drug test or screen every contractor in its employ for an employee criminal history.
If both groups agree that public safety is the highest priority, what should cab and ride-share companies do to protect the public as best as possible?
- Conduct employee criminal history checks via a certified background screening company.
- Ensure the checks cover county, state and federal records to prevent felony convictions from other states going undetected.
- Fingerprint background checks never hurt when it comes to making sure your employees have clean records.
- Require all drivers and contractors to pass regular, random drug tests to ensure driver sobriety.
- Make sure the company’s insurance plan covers the driver, vehicle and any passengers, in case of accident. Do not rely on a driver’s personal vehicle insurance.
For more information about public safety and background screening, contact Mind Your Business.
Posted in babysitter, criminal background checks
The New Jersey Senate Health, Human Services and Senior Citizens Committee has unanimously approved a bill that will require those who run family day care centers from their private residences to undergo criminal record checks.
The bill applies to all family day care providers, which is defined as someone who is providing childcare for three to five children from a private residence for more than 15 hours per week.
These care providers do not have to be registered with the state, though if they register with the Division of Children and Families, they become qualified to benefit from certain state programs such as the Child Care Food Program. The bill will require care providers to pass criminal background checks in order to register — or renew their registration — with the DCF. The DCF will also have the authority to determine if someone with a previous conviction has been rehabilitated satisfactorily, and may therefore be allowed to offer in-residence care again, provided the conviction was not for assault, abuse or crimes against children.
N.J. Senator Shirley Turner sponsored the bill. Sen. Turner recognizes constituents’ need for these small care providers, and wishes to ensure that children and families are protected.
“Given their small size and informal operations, we have been appropriately wary of creating too many rules and regulations” for these small family care centers, Turner said. “But helping ensure these providers don’t have a criminal history is a common-sense requirement that protects children and gives families much-needed comfort.”
Now that the bill has passed the Senate Health, Human Services and Senior Citizens Committee, the bill will go to the Senate floor for further approval.
photo credit: Jason L. Parks via photopin cc
Posted in background checks, EEOC, pre-employment background checks, small business
During a hearing in the U.S. House of Representatives in mid-June, a conversation about employers conducting criminal background checks on prospective employees led to a discussion about whether or not the Equal Employment Opportunity Commission’s Enforcement Guidance is clear and fair to those who own small businesses. The document spans 58 pages, and can occasionally be contradictory to state laws.
At the risk of being sued by the EEOC, small businesses may be deterred from conducting any background checks at all, which can put not only its other employees, but also individuals outside the business at risk.
Many states require background checks for certain positions, including law enforcement and city and state employees and contractors, but the EEOC can still sue those companies, organizations or entities on the basis of discrimination for failing to meet EEOC standards as laid out in the guidance document. The U.S. Chamber of Commerce accused the EEOC of “questionable enforcement tactics and legal theories” in a report.
National Small Business Association president Todd McCracken said that the EEOC’s Enforcement Guidance report is too confusing and complicated for small businesses, which may not understand how to follow contradictory EEOC guidelines and state laws regarding screening, and may therefore decide to forgo background checks altogether in an attempt to avoid lawsuits.
“The EEOC has not clearly stated what it expects from the small business community,” McCracken said. “All the EEOC has done is indicate that it expects small firms to conduct a complex individualized assessment weighing numerous factors regarding the use of conviction records in each hiring decision. How that is to be done in practice is anybody’s guess.”
However, those companies that are not required to conduct checks — and therefore may skip the process altogether — may be risking their clients’ or other employees’ safety by not conducting any background checks. The House also took time during the hearing to discuss those individuals who were victims of assault or other felony crimes because they hired a company or service to perform work in or around their homes and the hired contractors had not screened their employees or subcontractors.
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