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SHRM Newsletter- EEOC Clarifies Rules on Criminal Records
Posted on Sep. 4, 2013

This is Utah SHRM Legal-mail no. 2013-16 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







EEOC CLARIFIES RULES ON CRIMINAL RECORDS: Speaking at a recent workshop, an attorney with the Equal Employment Opportunity Commission (EEOC) has tried to clarify the EEOC’s rules on criminal records and employment. The attorney noted that having a criminal record does not grant someone protected status under the antidiscrimination laws. However, the lawyer noted that the use of criminal records can get an employer into trouble if that employer rejects Black or Hispanic applicants, but not White applicants, because of criminal history. The attorney also noted that even a neutral policy of not hiring persons with a criminal record may result in a disparate impact on minorities. The key defense for the employer in such situations will be the ability to show that the criminal record at issue is relevant to and disqualifying for the job in question. A classic example is that a DUI conviction is relevant and potentially disqualifying for an employee who must drive as part of his or her job, e.g. a delivery van driver, but not clearly relevant to a position that does not involve driving, e.g. a receptionist or custodian job.

IT’S EEO-1 REPORTING TIME: Remember that the EEOC annually requires certain employers to file the EEO-1 form. The EEO-1 is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender.  The form must be filed by Federal contractors and first-tier subcontractors with more than 50 employees (if their government contract is at $50,000 or more) and all employers with 100 or more employees also are required to report. Reports must be submitted by September 30, 2013 and can be filed online here:

NEW RULES FOR FEDERAL CONTRACTORS ON VETS AND DISABLED: The United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued new affirmative action rules impacting federal contractors. The new rules likely will take effect in the Spring of 2014. They will require contractors to annually adopt a benchmark for hiring veterans and hiring qualified persons with disabilities in various job groups. The disability goal varies based on the size of the employer. This is the first time contractors have been asked to meet quantifiable goals re: these two particular applicant characteristics. Although OFCCP calls the goals aspirational, an employer’s federal contract could be at risk if the employer does not provide OFCCP with documentation on its efforts to meet the goals. An article I read recently said those goals will be 8% (vets) and 7% (disabled) of a contractor’s workforce. You can read the full article (and get more details about the new rules) here:

IRS RECOGNIZES SAME SEX MARRIAGE NATIONWIDE FOR TAX PURPOSES: Not surprisingly, given other recent events, in late August of 2013, the Internal Revenue Service (IRS) decided to recognize same sex marriages based on the place of the ceremony. In other words, for federal tax purposes, the IRS will consider same sex spouses married (even if they live in a state which does not recognize same sex marriages) if the marriage is recognized in the state where it was performed. This means that employees of employers which provided health care coverage for the employees’ same-sex spouses may file claims for refund of income taxes paid on the value of the coverage for years for which the statute of limitations has not expired (i.e., the later of 3 years after the return was filed or 2 years after the tax was paid). Similarly, employees may seek refunds of income tax paid for health coverage on an after-tax basis (i.e., outside a cafeteria plan) for same-sex spouses. Employers may also file for refunds of social security and Medicare taxes paid on the value of health care coverage extended to same-sex spouses. You may want to check with your tax and benefits counselors to understand what this ruling means for your business.

THREE SHORTHAND RULES TO TRY TO MINIMIZE RISK IN TERMINATIONS: A client recently asked me to give him three quick tips to minimize risk in an employment termination. I wrote down the summary and read it again after I sent it. I liked it because it was clear and concise, results we lawyers do not always attain. So I thought I might share it with you. Here it is. To put yourself in the best possible position to defend a possible lawsuit if you do fire someone, keep in mind the triple goals of: (1) consistency (i.e. if the person sues you after termination, he/she will not be able to identify others who did similarly egregious behavior and were not fired); (2) job-relatedness and fairness (make sure you get his/her side of the story and rest the decision on clearly established facts--rather than on anger or bias about other things--after an appropriate investigation); and (3) documentation--clearly, carefully and accurately document what you did and decided and why.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012