A California federal district court held that companies may owe a duty of care to their prospective contractor’s employees in the hiring of such contractors. In Carrillo v. Schneider Logistics, Inc., plaintiff Everardo Carrillo and others were workers at three California warehouses that Walmart owned or leased, but were actually operated by Walmart contractors. Plaintiffs sued both the contractor-employers and Walmart, alleging the contractor-employers failed to pay them wages (including overtime) in violation of state and federal law and that Walmart was responsible, among other reasons, because it negligently hired the contractor-employers.
According to plaintiffs, “Walmart knew or should have known that each [contractor-employer] had a track record of violating state and federal employment laws, and Walmart’s agreement with [these contractor-employers] created economic pressure to violate these laws.” Walmart engaged the contractor-employers and then allegedly failed to implement procedures to ensure legal compliance and turned “a willful blind eye to rampant violations.” Specifically, plaintiffs claimed it was not reasonably possible for the contractor-employers to meet the productivity requirements and labor cost goals set by Walmart’s contract while complying with the law and maintaining a profit. Walmart moved to dismiss, but the federal district court rejected Walmart’s arguments and found plaintiffs’ allegations sufficient — at least at the pleading stage — to support a duty of care between Walmart and the employees of its contractors.
On June 14, Governor Rick Perry signed a new law that will preclude most causes of action for negligent hiring or negligent supervision against employers, general contractors, and premises owners. The new law (Texas H.B. 1188) amends the Texas Civil Practice and Remedies Code to prohibit most causes of action “against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.”
The Texas legislature passed the law in response to its finding that applicants with criminal records seeking employment “receive less than half as many job offers as job seekers without criminal records.” The law’s purposes are to “enhance public safety, raise employment levels, decrease recidivism, and allow job seekers with criminal records to become self-sufficient, law-abiding citizens.” The law should also alleviate most employer concerns about the potential liability of hiring individuals with criminal records, thereby providing “more options when hiring, and thus increas[ing] the employer’s efficiency and profitability.”
WASHINGTON — The Equal Employment Opportunity Commission filed lawsuits Tuesday against discount retailer Dollar General Corp. and a BMW manufacturing plant in South Carolina over their use of criminal background checks to screen out job applicants or fire employees.
In both cases, the agency claims the practice discriminates against African-Americans, who have higher arrest and conviction rates than whites.
The two lawsuits are the first since the agency issued revised guidance last year to warn employers against using overly broad criminal checks in a way that could limit job opportunities for people with past convictions. The commission says it wants to reduce barriers to employment for those with past criminal records who “have been held accountable and paid their dues.”
The EEOC alleges that BMW’s policy affected dozens of employees working for a contractor that staffed a BMW warehouse in Spartanburg, South Carolina The contractor’s policy was not to employ anyone with a criminal record within the past seven years. When a new contractor took over the company, BMW ordered a new round of criminal background checks and fired anyone with a criminal record from any year.
Of the 88 workers fired, 70 were black. Some had worked for BMW — through the contractor — for more than a decade, the EEOC alleged in a lawsuit filed in federal district court in Spartanburg. The commission claims the BMW policy is a “blanket exclusion” without any regard for the nature and gravity of the crimes, how old they are, or whether they are relevant to the type of work being performed.
Members of the Public Safety Committee voted 5-0, with one abstention, to send the bill to the full council Monday.
The committee also voted down several amendments supported by the business community that Chairman Bruce Harrell said would render the protections of the bill “meaningless.”
“My intent here was that there be some nexus between the criminal history and the job. It does put a higher burden on the employer. That’s good policy,” Harrell said.
The committee heard testimony from dozens of people, many of them ex-convicts who described how hard it had been to find employment after they had served their time and were trying to restart their lives.
“When I got out of prison, and put in a job application, I was honest about my incarceration, but I found all doors closed,” said Nick Maxwell. “If a person has paid his debt to society, he should have an opportunity for a job and to feed his family. People shouldn’t have to serve a life sentence for their past.”
On May 25, 2013, Nevada Gov. Brian Sandoval signed a new law making Nevada the third state in the last 12 months to enact legislation restricting use by employers of credit reports and other credit history information for hiring and other employment-related purposes. Nevada’s new law, which goes into effect Oct. 1, 2013, follows closely on the heels of similar legislation enacted by Colorado in April 2013, and adds Nevada to the handful of other states that have similar laws: California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington.
Alexandria VA June 4 2013 An officer who was seriously injured when a taxi driver allegedly shot him in the head is suing the Alexandria Yellow Cab company, alleging negligent hiring.
Kashif Bashir allegedly shot Alexandria police Officer Peter Laboy in the head Feb. 27 as Laboy attempted a routine stop of Bashir’s taxi. Bashir was charged with aggravated malicious wounding, attempted murder of a law enforcement officer and two counts of using a weapon in the commission of a felony.
Bashir, who had been working for Alexandria Yellow Cab for four years, was wanted in February for acting in a “menacing and threatening manner,” according to the lawsuit. A gun and several cans of beer – some empty and some full – were found in Bashir’s cab after his arrest.
The lawsuit alleges Alexandria Yellow Cab did not perform any type of “adequate or effective background screening prior to hiring Bashir” and other drivers, failing in ensuring public safety.
Specific government job categories must be considered for mandatory drug testing in Florida, an appeals court (1013L) concluded in a ruling that said a judge went too far in blocking enforcement of across-the-board public employee screening ordered by the state’s governor.
The U.S. Court of Appeals in Atlanta said in its ruling today that a Miami federal judge must reconsider the matter, and weigh, for example, whether employees who carry firearms or operate heavy machinery or large vehicles may be subjected to the required tests.
The American Federation of State, County, and Municipal Employees Council 79, sued Governor Rick Scott, a Republican, in 2011 to challenge his executive order requiring drug testing of state employees at agencies under his control, as well as pre-employment screening. The union contended the testing violates constitutional protections against unreasonable search and seizure.
Florida’s policy mandating “suspicionless drug testing” of as many as 85,000 state employees “almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications,” the appeals court said.
Congressman Steve Cohen (D-Tennessee-09) has introduced legislation in the U.S. House of Representatives – H.R. 645, to amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.
Written by John Connelly
On March 8, 2013, the United States Citizenship and Immigration Services released a new version of Form I-9, Employment Eligibility Verification (identified as Rev. 03/08/13). The new form is available for immediate use, and employers must begin using the updated Form for all new hires starting May 7, 2013.
Notable changes to the Form I-9 include:
Updated Instructions: The instructions are now six pages in length and provide better guidance about the obligations for both employees and employers. The revisions include a clearer explanation about when Form I-9 must be completed and when it must be updated.
Updated Layout: Form I-9 has been expanded from one to two pages, excluding the instructions and the list of acceptable documents. Formatting and layout changes were intended to make completing the form easier for both employees and employers. Employers should be sure to include the employee’s name in the first field on page two.
Changes to Section One – Employee Information and Attestation: New data fields were added to Section One. The new data fields request the employee’s foreign passport information, telephone number, and e-mail address. These new fields were added in an effort to facilitate employment verification matching with the E-Verify system.
Changes to Section Two – Employer or Authorized Representative Review and Verification: Section Two now includes an expanded document entry field. The new response fields were included to accommodate scenarios where an employee provides a combination of List A documents. Additionally, there is now additional space for information regarding SEVIS registration and Employment Authorization Documents (EAD). The Certification area also has been redesigned to clarify the three attestations an employer makes when certifying the Form.
As a reminder, new hires must complete Section One (now page one of the revised form) no later than the first day of employment. The employer must review the employee’s original documents verifying identity and employment authorization and complete Section Two (now on page two of the revised form) within three business days of the employee’s first day of employment.
Completing a new, revised Form I-9 for existing employees is required only if employment eligibility must be re-verified on or after May 7, 2013. Employers should use caution when identifying those employees requiring reverification. Unnecessary reverification may have the unintended effect of violating the Immigration and Nationality Act’s anti-discrimination provision.
Story reported by:
By James E. Hall, Mark T. Kobata and Marty Denis, workforce.com
Wynona Harris, a bus driver employed by the city of Santa Monica, California, was fired on the same day she submitted a doctor’s note to her supervisor stating that she could continue working through her pregnancy with limited restrictions. Harris sued, alleging pregnancy discrimination in violation of California’s Fair Employment and Housing Act, or FEHA.
At trial, the city asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives. The city could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The appeals court reversed the decision. It held that the requested instruction was legally correct and that refusal to give it was prejudicial error.
The California Supreme Court affirmed the appeals court’s decision. The state Supreme Court held that when a jury finds that unlawful discrimination was a “substantial factor” motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay or an order of reinstatement.
Read this news coverage here workforce.com