Employment Law Q & A

Q: Our company would like to run background checks on applicants for certain positions. Is that OK, or do we have to run a background check for every job position in the company?

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Q: Our company would like to run background checks on applicants for certain positions. Is that OK, or do we have to run a background check for every job position in the company?

A: An essential element in an employer’s proactive efforts to avoid charges of discrimination, is to avoid the disparate treatment of employees. That is, if all employees are require to endure a background check, it would be difficult for any employee or group of employees to claim discriminatory treatment. Accordingly, uniform background tests for all job classifications is clearly the best way for an employer to avid a charge of discrimination based upon its background check policy. However, it is not unlawful for an employer to require background checks on certain job classifications, while not requiring them on others. The key to avoiding a claim of discrimination under these circumstances is to have a solid bona fide business reason for doing so.

For example, an employer would arguably be justified in requiring background checks for employees who handle large sums of money like casino cage employees and accountants, as well as employees charged with the health and safety of a company’s customers and personnel such as armed security, while not performing similar pre-hire investigations on other job classifications such as clerical and grounds-keeping positions wherein employees are less likelyto create loss or liability for the employer, provided that the application of the employer’s policy does not result in a disparate impact on any protected category of applicants or employees. However, even if the employer’s background check policy does result in having a disparate impact (an unintentional discrimination resulting from policy that appears neutral on its face, but results in a negative impact on a certain protected group), an employer will be able to defend its policy and any resulting discrimination charge provided that the employer can show a legitimate business justification and job relatedness for its policy.

Q: Is there a “statute of limitations” for sexual harassment complaints? For example, if an employee brings forth a complaint from many years ago, are we obligated to investigate?

A: Well, it depends. There is a difference between a limit on a person’s time to make a legal claim of sexual harassment, and a time limit on the time an employee has to bring hostile working conditions to an employer’s attention. To successfully bring a legal claim of sexual harassment, an employee is required to file a charge of discrimination with its state (Nevada Equal Rights Commission) or the federal (U.S. Equal Employment Opportunity Commission) (EEOC) civil rights administration within 180 calendar days. However, the 180 day deadline is extended to 300 calendar days in states like Nevada wherein a state or local agency is available to enforce laws that prohibit employment discrimination on the same bases as the EEOC does. However, unless an employer has a policy to the contrary (which is not advisable), there is no limit on the amount of time an employee has to bring a hostile environment/harassment claim to its employer’s attention. Employers are advised to investigate and take serious all such claims, especially now in light of the #metoo movement. However, in circumstances wherein an employee alleges a charge of harassment against a supervisor or other person simultaneously to the employee’s receipt of discipline, and the alleged harassment took place long before the situation is brought to the employer’s attention, the credibility of the accuser must be evaluated and afforded the proper amount of weight.

Q: We are moving from a paper to an electronic time card system. Our senior management team wants all exempt personnel to log in and out of the new system. In other words, they want to track their time. Would this eliminate the exemption and open us up to liability for overtime?

A: No, and employer may track the time of its exempt personnel, and there are many legitimate reasons for doing so. For example, some employers what to know when their supervisory staff is on property, and/or working the expected number of hours. However, employers are cautioned against using any such tracking to deduct time from an exempt employee’s pay for hours not on the job, as doing so constitutes a violation of the Fair Labor Standards Act (FLSA), and may result in a loss of the exemption status. If the exemption status is lost, the government will require that the exempt employee be paid straight time for all hours worked, including time and a half for all hours over 40 per week. This is because, under the FLSA, with few exceptions, exempt employees must receive their full salary for any workweek in which the employee performs any work, regardless of the number of days or hours worked. As noted, making deductions from exempt salaries could result in a loss of the exemption, except for workweeks in which the employee performs no work, or an employee is absent for a day or more for personal reasons other than sickness or accident, and a few other narrow exceptions. However, if the tracking of an exempt employee’s time is solely used for the purpose of knowing when the employee is on the job or any other business reason other than to dock the employee for time not on the job, the practice is lawful and will not
result in the loss of an exemption. LW

Liberty Watch publishes this column to convey general information, and not for the purpose of providing legal advice. You should not consider any information in this column to be legal advice, and you should not act upon any such information. Readers should obtain specific legal advice directly from members of Clark Hill (or their own legal counsel) in relation to any decision or course of action contemplated. Clark Hill and its members provide legal advice only upon the execution of a formal attorney-client retention agreement establishing an attorney-client relationship. This column and its contents do not create an attorney-client or any other relationship between Clark Hill, any of its attorneys, and/or any reader or other person or entity.

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