Today, most Americans live in a jurisdiction that has enacted a “ban-the-box” law (also known as a “fair chance” law).  Ban-the-box laws restrict employers from inquiring about an applicant’s criminal background at various stages of the hiring process.  The purpose of these laws are to enable an ex-offender to display his or her qualifications in the hiring process before he or she must disclose a criminal record.  In fact, the origin of the laws’ colloquial name is the “box” that initial job applicants must check if they have a prior conviction.  These laws benefit an estimated 70 million people in the United States (or almost one in three U.S. adults) who have prior arrests or convictions.

Currently, there is no federal ban-the-box law generally applicable to private sector employers.  However, on December 20, 2019, President Trump signed into law the Fair Chance Act (also known as the Fair Chance to Compete for Jobs Act of 2019) which prohibits federal agencies and government contractors from inquiring about an applicant’s criminal history before making a conditional employment offer, unless a specified exception applies.  The law includes exceptions for law enforcement and national security positions that require access to classified information, and where an employer is legally obligated to conduct a criminal background check before making a conditional employment offer.
Continue Reading North Carolina Also Bans-The-Box

On Tuesday July 21, 2020, Kelley Drye’s Labor and Employment Practice hosted a webinar focused on best practices for navigating challenges of the “not so normal” workplace of 2020. A workplace where employers are challenged with new rules, laws, risks, and social issues brought on by the pandemic and a supercharged social and political climate.

Two news stories since Tuesday made these challenges real.

As we discussed in our webinar, employers are clearly navigating uncharted waters, including (one we discussed at length) the Black Lives Matter (BLM) movement and employers approach to handling activism in the workplace.

Now with the pandemic – this includes ‘management’ of face masks – which have become part of workplace attire for virtually everyone.


Continue Reading Consistency is Key – for Employee Masks and T-Shirts in the Workplace

As New York employers struggle to reopen their workplaces, implement new workplace COVID-19 policies, manage remote workers, and deal with employees who are quarantined, afraid of contracting COVID-19, afraid of the subway, and requesting job accommodations – this is a good moment to remember that all of the ‘old’ employment laws are still alive and well and being enforced.

Earlier today the New York Attorney General reported a $1.5 million dollar settlement of a sexual harassment complaint against a Long Island construction company, claims made by 18 female former employees.

The company, Trade Off Construction, denied all of the allegations and did not admit any wrongdoing in the settlement.


Continue Reading It’s Not Just All Pandemic, All the Time!

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

In May, the Equal Employment Opportunity Commission (“EEOC”) announced that FedEx Ground Package System, Inc. (“FedEx”) will pay $3.3 million dollars and provide programmatic relief to resolve a disability discrimination charge against the company.

Allegations against FedEx

In its Complaint (Equal Employment Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 15-cv-00256 (Western District of Pennsylvania, February 25, 2015) the EEOC alleged that FedEx violated the Americans with Disabilities Act (“ADA”) by discriminating against deaf and hard-of-hearing individuals who applied for and/or worked in the package handler positions with the company.  To be hired for such positions, applicants must be at least eighteen years old and pass a criminal background check.  Applicants attend a mandatory sort-observation tour (where they see an active package handling shift, observe loading and unloading delivery vehicles, the conveyor systems, scanning, sorting, and the routing of packages), and participate in an interview.


Continue Reading EEOC Delivers Hefty Fine for Disability Discrimination

In a long awaited landmark ruling by Justice M. Gorsuch, the Supreme Court ruled that Title VII protects gay and transgender workers. The Opinion provides:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear . . . An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Justice Gorsuch was joined by Chief Justice Roberts and by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.


Continue Reading The Answer is Clear—Title VII Will Protect Gay and Transgender Workers

Today the EEOC updated its Technical Assistance Questions and Answers (Q&A), “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Among the updates, the EEOC  provides Q&A guidance regarding: requests for accommodation (Q&A D.13, G.7); pandemic-related harassment in the context of telework (Q&A E.4); return to work guidance (Q&A G.6, G.7); and other questions related to age discrimination (Q&A H.1), pregnancy discrimination (Q&A J.1), and sex discrimination involving employees with caretaking or family responsibilities (Q&A I.1).

The EEOC also touches on an issue that all employers will undoubtedly face as employees return to work, namely, whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to an underlying condition. The EEOC’s June 11 Q&A D.13 states:


Continue Reading EEOC Updates COVID-19 Technical Assistance Publication with Q&A

Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.


Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback

Last week, the US Supreme Court made it easier for a federal worker to establish a claim for age bias.

This decision does not impact private employers, because it relied on the specific language of the federal sector section of the Age Discrimination in Employment Act (ADEA). But could this signal a possible future loosening of the burden of proof for other plaintiffs? We will have to wait and see.

SCOTUS held that federal employees can establish age discrimination under the federal sector section of the ADEA, merely by proving that age bias “taints the employer’s decision-making process.” Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882. This is weaker than the “but-for” standard of causation applicable to age discrimination claims under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In other words, the fact that the same employment decision would have been reached had age not been taken into account is not relevant for purposes of deciding a federal government employee’s age discrimination claim.


Continue Reading It is Now Easier For Federal Workers to Prove Age Bias

On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the