Two Hot Issues: Criminal Background Checks and Paycheck Fairness Act

In the last week, both in practice and in my daily review of labor and employment law websites and blogs, two issues have come up so frequently, I feel compelled to blog about them myself.

Criminal Background Checks

The use of criminal background checks has been raising concerns for some time. Last month, the EEOC made its position clear: a blanket refusal to hire workers based on criminal records or credit problems can be illegal if it has a disparate impact on racial minorities. At least one commentator has questioned whether this position is creating a new protected class, i.e. felons.

On a related front, Massachusetts recently enacted legislation with a “ban the box” provision, which prohibits employers from requiring applicants to check a box if they have a criminal history. This provision becomes effective on November 4, 2010, and is similar to Hawaii law, the only other state with a “ban the box” law applicable beyond the public employment realm.

There are also additional state laws (e.g. in Hawaii, New York, Pennsylvania and Wisconsin) that broadly protect individuals from employment discrimination based on criminal records, although the details of the individual laws vary. For a comprehensive discussion, go here.

Paycheck Fairness Act

The Paycheck Fairness Act is back and may be close to being passed.

The Act makes five significant changes to current wage and hour law, including changes to available defenses and damages, creation of new non-retaliation provisions, changes from an opt-in to an opt-out class action, and additional reporting obligations.

If it passes, the Paycheck Fairness Act will be the most significant employment legislation to pass since the ADA Amendments Act. I will keep you posted.

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