Listening to the Supremes: 2013 Employment Law Update. Presented by:. Robert D. Kilgore Direct: (210) 819-2904 rkilgore @laborlawyers.com. www.laborlawyers.com. - PowerPoint PPT Presentation
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Listening to the Supremes:2013 Employment Law Update
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• U.S. Supreme Court was busy• Gridlock did not prevent more regulation• Enforcement strategies became paramount• Regulators breathed new life into existing laws• Agencies reinvented themselves to stay viable • Rulemaking predominated over legislation
• More investigators with less experience• More aggressive tactics• Closer scrutiny of position statements and documentation• Investigators shifting burden of proof to employer• Increased demand for on-sites
• Eliminate systemic barriers in recruitment and hiring• Protect immigrant, migrant, and other vulnerable workers• Coverage of gay, lesbian, bisexual and transgender
(“emerging and developing issues”)• Equal pay laws• Preserving access to the legal system• Systemic investigations to address workplace
• On April 25, 2012 EEOC issued “Enforcement Guidance”• Part of EEOC strategy targeting pre-hire selection criteria• Criminal background checks are under particular scrutiny
• Must make an individualized assessment• Consider many factors:
– Nature and gravity of offense– Time passed since conviction/sentence completion– Age at time of offense; age now– Rehabilitation efforts– Facts surrounding the offense– Number of convictions and offenses
• Consider many factors (cont’d):– Has person performed same type of work, post-
conviction, with no criminal conduct– Employment history before and after the offense– Additional training/education– Character references– Relevance of conviction to job duties
• Need background check policy and procedure that allows individualized assessment