Ban-the-Box Bandwagon Requires Application Review

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On August 11, 2014, New Jersey joined Illinois and at least 11 other states, as well as dozens of cities and local governments, in prohibiting most employers from initially asking about criminal history on job applications. This follows the EEOC’s scrutiny of the use of criminal convictions in the hiring process. As “ban-the-box” increasingly becomes a national initiative, and because states frequently play follow-the-leader with respect to this type of legislation, employers should expect similar legislation to spread to other jurisdictions. Continue reading this entry

The New Protected Class: Unpaid Interns (Are They Worth the Trouble?)

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It is a constant challenge for employers to keep up with the panoply of protections afforded to actual employees by federal, state and local employment discrimination and other laws. Beware — there is a new trend afoot that adds yet another layer of compliance complexity. States are beginning to extend the protection of employment discrimination laws to a distinct category of persons who are not even employees at all — unpaid interns. Continue reading this entry

Too Late to Compel Arbitration? Think Again!

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In recent years, more and more employers are considering requiring employees to bring any claims arising out of the employment relationship in a private forum such as an arbitration. The American Arbitration Association provides a helpful guideline for drafting mandatory dispute resolution provisions. Some of the benefits of arbitration are well known: among other things, arbitration proceedings are confidential, efficient, and tend to be less expensive. Arbitrations also do not include a jury, potentially eliminating much of the uncertainty and unpredictability of litigation from an employer’s perspective. With the Supreme Court repeatedly indicating that courts should enforce arbitration agreements because the Federal Arbitration Act provides that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” arbitration agreements are becoming an increasingly attractive option for employers. Continue reading this entry

When Hiring a Foreign Employee May Really Be the Only Feasible Option

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The Board of Alien Labor Certification Appeals of the U.S. Department of Labor (“DOL”), otherwise known as the BALCA, recently issued an employer-friendly decision that contemplates how an employer can demonstrate it is not feasible to train a U.S. worker for a permanent employment position processed through the DOL’s Program Electronic Review Management System, commonly referred to as “PERM,” to obtain a DOL-certified labor certification. A labor certification is a process whereby an employer tests the U.S. labor market to determine whether domestic workers are able, willing, qualified and available to perform the duties a specific occupation in lieu of the necessity of permanently employing a foreign national in the occupation. Completion of the process is also a common prerequisite to obtaining U.S. permanent residence for a foreign national worker. Continue reading this entry

Button Bans – Be Careful

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Employers often implement dress code policies and practices which prohibit employees from wearing all types of buttons or insignia in the workplace. These kinds of policies may be put in place for customer relations, appearance or other purposes. Unfortunately, such a policy runs a significant risk of being found as illegal by the National Labor Relations Board (NLRB). The NLRB, with frequent support from the courts, has long held that employees have the absolute right to wear union-related buttons or other insignia in the workplace, although limited exceptions may be carved out where extraordinary “special circumstances” exist. The Board’s view has been that employees have the right to express their views about union issues through wearing buttons or other insignia – even where the employer consistently bans all other forms and types of these items from the workplace. Continue reading this entry