As we’ve blogged about before, the EEOC has become more aggressive over the past few years in scrutinizing employer use of criminal background and credit checks.  While federal anti-discrimination laws do not expressly prohibit employers from performing background checks or similar screening methods on employees or applicants, their use can be unlawful where the practice has a “disparate impact” on protected classes of employees under Title VII.  Recently, the EEOC has issued Guidance documents focusing on disparate impact cases involving criminal history and credit checks, all as part of its interest in “systemic” forms of discrimination.  In addition to issuing guidance limiting when and how employers can use criminal and credit history background checks in employment, the EEOC has been actively investigating specific employers, as some readers of this blog are undoubtedly all too aware.  In some cases, the EEOC has even initiated lawsuits challenging employers’ use of background checks.  For example, the EEOC has filed suit just a few weeks ago against Dollar General (EEOC v. Dollar General, No. 1:13-cv-04307, Illinois) and BMW (EEOC v. BMW Manufacturing Co., LLC, No. 7:13-cv-01583-HMH-JDA, South Carolina).

Many employers and employment attorneys who have argued that appropriate use of background checks can be important and necessary believe the EEOC is going too far.  Those employers have complained that the EEOC’s aggressive position presumes the use of criminal or credit background checks is per se unlawful and amounts to a de facto ban on their use under any circumstances, regardless of whether or not they result in an unlawful disparate impact.  If you are one of those raising such concerns, federal judges may be listening.  A few weeks ago, a federal  judge in the U.S. District Court in Maryland issued an opinion granting summary judgment dismissal in another of the EEOC’s enforcement lawsuits, EEOC v. Freeman (No. 1:10-cv-2882, Maryland).  The scathing opinion by U. S. District Court Judge Roger Titus held that the EEOC’s evidence was unreliable and failed to raise a question of fact or show Freeman’s background check policies created a disparate impact in violation of Title VII.Continue Reading Maryland Federal District Court’s Dismissal of EEOC v. Freeman Provides Guidance for Employers on Background Check Rules

The IRS issued Notice 2013-45 recently, the official guidance document explaining the one-year delay in the implementation of the employer pay-or-play penalties under the Patient Protection and Affordable Care Act (“PPACA”) health care reform.

As announced in a Treasury blog, the IRS has delayed for one year the information reporting requirements (found in sections 6055 and 6056 of the Internal Revenue Code) that apply to insurers, self-funded plans, government agencies and large employers regarding health plan coverage.  This purpose of this delay is to allow the IRS addition time “for dialogue with stakeholders in an effort to simplify the reporting requirements”  and for employers and other reporting entities to “develop their systems for assembling and reporting the needed data.”  Since the collection of this information crucial for the IRS’ determination of an employer’s liability for pay-or-play penalties will not occur in 2014, the IRS has announced that it will not impose pay-or-play penalties for 2014.  In the Notice, the IRS states that it expects that proposed regulations on the information reporting requirements will be issued later this summer.Continue Reading IRS Guidance On Delay in Implementing Pay-or-Play Penalties of ACA Health Care Reform Law

Recognizing that severance agreements are becoming more and more prevailant in the down economy, the Equal Employment Opportunity Commission (EEOC) yesterday issued a new technical assistance document titled Understanding Waivers of Discrimination Claims in Employee Severance Agreements (click on the title to access the document).  The new document is intended to help both employers and employees navigate