Employment Law Dilemmas: What to Do When the Law Forbids Compliance
| Publication year | 1998 |
| Pages | 15 |
| Citation | Vol. 11 No. 10 Pg. 15 |
Steven C. Bednar, J.
I. INTRODUCTION
The 1990's have seen the passage of significant employment legislation. The Americans With Disabilities Act, the Civil Rights Act of 1991, the Family and Medical Leave Act, the Uniformed Services Employment and Re-Employment Rights Act, and most recently the Health Insurance Portability and Accountability Act, have all recently appeared in an already dense constellation of employment-related legislation. Congress, state legislatures, and the courts have now created a complex galaxy of employment laws which not only overlap, but frequently impose confusing and sometimes conflicting obligations. As the obligations and prohibitions on employers increase, the path of legal compliance becomes precariously narrow. In some instances, there is no path left at all. In these situations, employers find themselves in double-bind dilemmas - the "Catch 22's" of the law. The action necessary to comply with one law invites a violation of another.
This article reviews several examples of situations where compliance with one employment regulation enhances the risk of violating another. In many instances, the problem is created by the existence of an employment statute which specifically authorizes conduct which is prohibited by the common law or another statute. Now, more than ever, human resource managers and employment law attorneys are required to view the world of employment regulations with a broad perspective that understands that caution in one area of employment law may constitute carelessness in another. As human resource managers slow down to carefully navigate the traffic of congested employment laws in front of them, they must realize that the greatest vulnerability is being hit from behind.
II. THE QUAGMIRE OF COMPETING EMPLOYMENT REGULATIONS
The text below reviews several employment statutes and common law obligations of employers which create conflicting and sometimes incompatible obligations. A review of the general statutory or common law scheme of each area of regulation is beyond the scope of this article. The materials are limited to a brief discussion of the competing requirements between statutes or between a particular statute and the common law and suggestions as to how to remain on the narrowing path of compliance.
A. Title VII Restrictions on Criminal Background Checks vs. Negligent Employment Torts
Title VII of the Civil Rights Act of 1964[1] imposes significant restrictions on an employer's ability to use criminal background information in the hiring process. These restrictions arise from the fact that disqualification based upon the existence of a criminal record tends to have a disparate impact on one or more of the classes protected under Title VII. In contrast, the common law imposes a duty to exercise care to ensure against hiring an applicant whom the employer knows or should know may engage in violent or injurious conduct. Failure to exercise the required degree of care in hiring, which often requires an evaluation of criminal background information, can result in liability for negligent employment. Employers are thus faced with the dilemma of discharging their common law obligation to gather necessary background information without violating the statutory restrictions of Title VII as to how such information is used.
I. Ensuring Compliance With title VII's Restrictions Title VII restricts the use of criminal background information in the hiring process. For example, an arrest is not conclusive of any wrongdoing. Therefore, absent a strong showing of "business necessity," considering an arrest record in connection with an application for employment violates Title VII.[2] Most Equal Employment Opportunity Commission ("EEOC") decisions acknowledge the possibility of a "business necessity" defense. However, this defense has been rejected in each of the numerous reported decisions in which it has been asserted. Even an employee bonding requirement has been rejected as a "business necessity" justifying a conviction-based disqualification of a minority applicant.[3] As a result, consideration of an arrest record in the hiring process is, as a practical matter, illegal per se.
It should be noted, however, that inquiring into an arrest record on an employment application does not itself violate Title VII. An employee who fails to disclose an arrest may be validly disqualified based upon falsification of information on the application.[4] However, the practice of inquiring into arrest records on an employment application is a dangerous one because if an arrest is disclosed, it requires the employer to explain why it required disclosure of the arrest if such information is immaterial to the employer's hiring decisions.
Title VTI does not prohibit an employer from requiring job applicants to disclose criminal convictions, whether misdemeanor or felony. However, as applied by the EEOC, Title VTI does not permit a criminal conviction to serve as an automatic bar to employment. To satisfy Title VII, a conviction-based disqualification must be justified by "business necessity."[5] The "business necessity" standard is applied more leniently in the context of convictions as opposed to arrests. To determine if this standard is satisfied, EEOC decisions require the following factors to be considered: (1) the job-relatedness of each conviction; (2) the nature of the conviction; (3) the number of convictions; (4) the facts surrounding each offense; (5) the length of time between the conviction and the employment decision; (6) the applicant's employment history before and after the conviction; and (7) the applicant's efforts at rehabilitation.[6] Of these factors, job-relatedness is the most critical.[7] EEOC decisions illustrate that the job-relatedness inquiry focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the applicant's conviction.
2. Negligent Employment Torts:
Satisfying Common Law Obligations Under Utah law, an employer may incur liability for negligent employment when (i) the employer knew or should have known that its employees posed a foreseeable risk to third parties, including fellow employees; (ii) the employee did indeed inflict such harm; and (iii) the employer's negligence in hiring, supervising, or retaining the employee proximately caused the injury.[8] In a negligent employment claim, the most important element in determining whether an employer breached its duty of care in hiring is the element of foreseeability. An employer who fails to obtain information in the hiring process which would have disclosed that a risk of injurious conduct by the employee was foreseeable may incur liability for negligent hiring if the type of harm which would have...
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