For Manufacturers Struggling with Labor Shortage, Time to Review Background Check Processes

July 26, 2021

As COVID-19 restrictions continue to relax, manufacturers are facing an ever-tightening labor market. Amidst supply-chain disruptions and computer chip shortages, human capital is proving to be increasingly scarce. Many manufacturers are struggling to fill open positions.


While some manufacturers are turning to automation as a solution to the labor shortage, other companies are grappling with the decision of whether to hire workers they may have traditionally excluded from manufacturing positions, such as workers with a history of criminal convictions or who test positive for medical or recreational marijuana use in states where it might still be permissible to do so.


“Ban the Box”


Some jurisdictions have enacted “ban the box” legislation, designed to remove criminal history as a barrier to employment. Such laws require employers to consider qualifications first when considering a person’s eligibility for employment. Practically, a “ban the box” legislation requires employers to assess when in the application process they can ask job applicants about prior criminal records. Some statutes permit the inquiry after the first in-person interview, for example, while other jurisdictions require waiting until after an employer makes a conditional job offer. The Fair Chance Act, which takes effect December 20, 2021, prohibits federal contractors from asking job applicants about criminal records before extending a conditional job offer.


Still, employers have to be mindful of equal employment opportunity concerns when conducting background checks, especially for criminal history. In the past, the Equal Employment Opportunity Commission (EEOC) has been concerned that even if an employer has a job-related reason for a background check, such a practice may tend to have a disparate impact on certain minority groups. Employers are always cautioned to review existing “neutral” policies to ensure they do not have a disproportional negative impact on a particular group, to minimize risk of discrimination claims.


An additional best practice for employers making decisions based upon a criminal history record is to conduct an individualized assessment (and certain jurisdictions have mandated this step). The EEOC, in its 2012 guidance, introduced the “Green factors” by stating that employers can support a practice that potentially otherwise has a disparate impact by showing they considered:


The nature and gravity of the criminal offense(s);


The time that has passed since the conviction or completion of the sentence; and


The nature of the job held or sought.


See Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).


An employer also must consider the many federal, state, and local laws impacting the decision-making process, some of which mandate individual assessments or notices.


Businesses conducting background checks using third-party consumer reporting agencies also must comply with the Fair Credit Reporting Act (FCRA). The FCRA requires companies to follow certain technical “consent and standalone disclosure” requirements prior to obtaining a background check report for an applicant. FCRA also addresses the steps manufacturers must take in the event of an “adverse action” based upon a background check report.


Marijuana


Manufacturers may shy away from hiring employees who test positive for marijuana use out of safety concerns. While employers may still prohibit impairment and use during work hours, some states prohibit basing employment decisions on marijuana use during non-work hours, and others prohibit pre-employment marijuana tests.

Medical marijuana presents another challenge, as some states may bar employers from utilizing positive tests based on medical marijuana usage for adverse job actions.


Author: Shannon L. Miller and Patrick O. Peters



Source: https://www.jacksonlewis.com/publication/manufacturers-struggling-labor-shortage-time-review-background-check-processes

You might also like

Contractor Takeover Leads to Tortious Interference with Contract and Conspiracy Claims

October 28, 2021
When a subcontractor is having trouble completing its subcontract work, it is not uncommon for a contractor to assert itself more directly into the completion process to help expedite the work. What’s the harm you might ask? A recent Loudoun County, Virginia case answered that question: It could lead to tortious interference with contract and conspiracy claims by the subcontractor. That case was Evans Construction Services (the subcontractor) versus Ox Builders (the contractor), and it also included a claim by the subcontractor against the contractor’s site superintendent, Lawler, as a co-defendant in the case individually. Evans alleged that Ox and Lawler tortuously interfered with Evan’s subcontracts by dealing directly with the subcontractors and directing the subcontractors’ work, cutting Evans out of the picture. Evans sought to recover its lost profits. Ox and Lawler argued against liability because Evans’ claims sought redress outside of Evans’ subcontracts with Ox and because Evans had no contract with Lawler at all, moving to dismiss Evans’ lawsuit as a matter of law. The court denied that motion, holding that the facts as pled by Evans were legally sufficient if ultimately proven by Evans, to support a claim for breach of legal duties separate from duties arising contractually only; and specifically for wrongful interference with Evans’ subcontracts and Evans’ related conspiracy claim against the defendants. Although the court acknowledged that Evans’ claims were interrelated with the Ox – Evans subcontracts underlying the parties’ relationship, those common facts could support both contractual and non-contractual breach claims in certain circumstances. The court further determined that such circumstances, if ultimately proven, included Evans’ claims that Ox and Lawler violated their independent common law duties to not interfere with Evans’ lower tier subcontracts and not conspire together to injure Evans in its business. The court, therefore, allowed Evans’ claims to proceed to trial on their merits. The defendants apparently did not argue to dismiss the conspiracy claim on the basis Lawler, as an employee of Ox, could not conspire with Ox, his employer (referred to as the intercorporate immunity doctrine), or at least that defense was not discussed in the court’s decision. But, regardless, this decision reflects the necessity for caution “going around” subcontractors when subcontract disputes arise. Author: Neil S. Lowenstein Source: https://vanblacklaw.com/construction/contractor-takeover-leads-to-tortious-interference-with-contract-and-conspiracy-claims/
OSHA inspection, CONSTRUCTION Management

During an OSHA inspection: Know your rights

October 13, 2021
During an Occupational Safety and Health Administration (OSHA) inspection, the OSHA official, escorted by management, will tour the facility or construction site to observe working conditions, identify violations, and so on.

OSHA’s new initiative to protect workers from hazards of extreme heat | FIRST, VERIFY

October 4, 2021
As part of the Biden-Harris administration's interagency effort and commitment to workplace safety, climate resilience, and environmental justice, the department's Occupational Safety and Health Administration is initiating enhanced measures to protect workers better in hot environments and reduce the dangers of exposure to ambient heat. To combat the hazards associated with extreme heat exposure – both indoors and outdoors – the White House, on September 22 nd announced an enhanced and expanded efforts the U.S. Department of Labor is taking to address heat-related illnesses. While heat illness is largely preventable and commonly under-reported, thousands of workers are sickened each year by workplace heat exposure. Despite widespread under-reporting, 43 workers died from heat illness in 2019, and at least 2,410 others suffered serious injuries and illnesses. The Atlantic Council's Adrienne Arsht-Rockefeller Foundation Resilience Center estimates the economic loss from heat to be at least $100 billion annually – a number that could double by 2030 and quintuple by 2050 under a higher emissions scenario. What is the initiative? To highlight its concern and take necessary steps, OSHA is implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard. In addition, the agency is forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group to provide a better understanding of challenges and to identify and share best practices to protect workers. OSHA implemented an intervention and enforcement initiative recently to prevent and protect workers from heat-related illnesses and deaths while they are working in hazardous hot environments. The newly established initiative prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit. Scope of the initiative: The initiative applies to both indoor and outdoor worksites. Indoor worksites that may be impacted by extreme heat include foundries, brick-firing, and ceramic plants, glass production facilities, rubber products factories, electrical utilities (particularly boiler rooms), bakeries, confectioneries, commercial kitchens, laundries, food canneries, warehouses without adequate climate control, chemical plants, and smelters. Outdoor work activities that may cause exposure to extreme heat include agriculture, landscaping, construction operations, refining gas/oil and well operations, asbestos and lead removal, waste collection activities, package and mail delivery, and any other activities that require moderate to high physical exertions or the wearing of heavy or bulky clothing or equipment on a hot day. According to Jim Frederick, Acting Assistant Secretary for Occupational Safety and Health, usually agricultural and construction workers often come to mind first when thinking about workers most exposed to heat hazards. However, without proper safety actions, sun protection, and climate control, intense heat can be injurious to various workers indoors or outdoors and during any season. Heat-related directives: OSHA Area Directors across the nation will institute the following: Prioritize inspections of heat-related complaints, referrals, and employer-reported illnesses and initiate an onsite investigation where possible. Instruct compliance safety and health officers, during their travels to job sites, to conduct an intervention (providing the agency's heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas, and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions. Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present. In October 2021, OSHA will take an important step toward a federal heat standard to safeguard protections in workplaces across the country by issuing an Advance Notice of Proposed Rulemaking (ANPRM) on heat injury and illness prevention in outdoor and indoor work settings. The advance notice will initiate a comment period allowing OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, exposure monitoring, and strategies to protect workers. How should employers prepare? Employers should be aware of potential citations relating to heat illness and should prepare for inspections by reviewing their procedures and developing a manner to monitor outdoor (and, in certain industries, indoor) temperatures, ensuring employees have access to shade and water. They also need to educate employees on signs of heat illness and provide access to ventilation or cooling areas in their workplace. Once OSHA’s ANPRM is released, employers need to be ready with data and information to identify complexities with compliance. Source : https://www.osha.gov/news/newsreleases/national/09202021
More Posts

Book a Service Today

Share by: