Labor & Employment

On July 1, 2016, an interim final rule adjusted the amounts of civil penalties assessed by OSHA. (Link) The penalties are being modified pursuant to the Federal Civil Penalties Inflation Adjustment Act, which requires federal agencies to adjust their penalties for inflation each year. As a result of this rule, OSHA is increasing its maximum penalties.  Until now, OSHA has been exempted from this law, and so OSHA’s maximum penalties have not been raised since 1990.  The result of these changes is a significant increase in penalty exposure for OSHA violations.

As we informed you on June 22, 2016, the Department of Labor (DOL) “persuader rule” was to go into effect on July 1, 2016.  However, on June 27, the U.S. District Court for the Northern District of Texas granted a nationwide preliminary injunction on the rule.  The so-called persuader rule required employers and law firms to file a Form LM-20 detailing expenditures on common legal services, such as supervisor training, drafting union avoidance materials, and providing other labor advice.

On April 11, 2016, Missouri Governor Jay Nixon signed an Executive Order that immediately implemented a “Ban the Box” policy for Missouri state agencies, departments, boards, and commissions. Under this Order, state employers must amend their initial employment applications to remove questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position. State employers may still request information about an applicant’s criminal past and may still conduct a criminal background check as a condition of employment, but the Order requires that state agencies wait until later in the application process to procure that information. The Order does not specify exactly when in the application process employers may make these criminal history inquiries.

Earlier this week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, affirming the Eight Circuit’s decision to not disturb a jury verdict against Tyson where the district court permitted the jury to draw an inference of class-wide liability based on representative or statistical evidence.

What is “Ban the Box?” Generally speaking, it is an international campaign seeking to eliminate the question—“Have you ever been convicted of a crime?”—from employment applications.  “Ban the box” laws usually provide that an employer must wait to ask applicants about their criminal histories until after a conditional offer of employment is made AND that an employer must consider how the individual criminal history is job-related for the position in question.

There currently are 21 states and over 100 cities and counties that have a “ban the box” law.  Further, 7 states have statewide “ban the box” laws that apply to private employers—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island.

On February 3, 2016, Husch Blackwell Labor and Employment attorneys Terry Potter and Robert Rojas presented a webinar on Workplace Safety vs. Workplace Gun Rights. The webinar focused on the legal landscape of current gun legislation, how certain legislation affects employers and the workplace, and how to minimize any risks associated with that legislation. Specifically, the presentation covered state-specific parking lot laws and posting requirements, both of which regulate where and how an employer may prohibit weapons on its property. Parking lot laws make it illegal for employers to prohibit the possession of firearms in personal vehicles on employer-owned property while posting laws require employers to use certain signage to notify employees, customers, and others that firearms are prohibited inside an employer’s buildings or worksite.

Listen to the Podcast

What’s required before you obtain a background check on a prospective employee? And what’s required before and after you take adverse action against a prospective employee based on the background check?

Joe Guffey discusses the do’s and don’ts of conducting employee background checks under the Fair Credit Reporting Act (FCRA).