SPECIFIC PROCEDURES MANDATED FOR
DISPOSING OF PERSONAL EMPLOYEE INFORMATION
As of December, 2006, New York State requires employers to properly dispose of records containing personal employee information through one of the following means: shredding, destruction, modification, or other reasonable action to insure that no unauthorized person will gain access to the personal information.
Affirmative obligations are now imposed on private sector employers to protect individuals from identity theft. Employment applications, disciplinary notices, and payroll records containing personal information are subject to the new disposal requirement. With regard to electronic documents, advice from information technology professionals is necessary to insure that such records are destroyed completely.
The law imposes a civil penalty of up to $10,000.00 for non-compliance and provides the New York State Attorney General with broad enforcement powers. Due diligence may serve as an affirmative defense to any such complaint.
EXTENDED DEPLOYMENTS MAY HURT BOTH
EMPLOYERS AND THEIR EMPLOYEES
On January 11, 2007, the Chairman of the Joint Chiefs of Staff announced that limits were being extended on the length of time that military reservists and members of the National Guard can spend on active duty.
The new policy could require citizen soldiers to serve on active duty in Iraq or Afghanistan for as long as 48 months, with an initial tour lasting up to 24 months followed by a return to civilian life and a potential second deployment of an additional 24 months.
U.S. SUPREME COURT EXPANDS PROTECTION
TO EMPLOYEES WHO ALLEGE EMPLOYER RETALIATION
Employees who bring retaliation claims under Title VII of the Civil Rights Act of 1964 are no longer required to prove that they suffered an "ultimate employment decision" or "materially adverse change in the terms and conditions of employment". The older standard required that the employee prove retaliation in such forms as a discharge, demotion, loss of pay, etc. In Burlington North and Santa Fe Railway Company vs. White, No. 05-259 (2006), the Court expanded its definition of acceptable forms of retaliation to include more subtle treatment such as a change in schedule or even the failure to invite an employee to lunch.
As articulated by the U.S. Supreme Court, the new standard is whether "a reasonable employee would have found the challenged action materially adverse, and whether such action might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
To guard against retaliation claims, employers should instruct their supervisors with respect to the newly established, broader standards. Employers should also review their stated policies to insure that they prohibit not only discrimination and harassment, but also retaliatory action.
EMPLOYMENT SCREENING DEVICES AND
THE AMERICANS WITH DISABILITIES ACT
Pursuant to the ADA, employers may not discriminate against potential employees on the basis of a disability, if reasonable accommodations could be made such that an employee could perform the essential functions of his or her job. Employers may not ask specific disability related questions or request a medical examination prior to conditionally offering an applicant a job. Because certain psychological or personality tests could be considered medical examinations that detect underlying psychological disorders, the ADA is sometimes implicated by the mere administration of a test.
Tests designed to measure an applicant's honesty or habits are permissible, but EEOC regulations forbid most other forms of psychological testing.
TITLE VII DISCRIMINATION CLAIMS
Title VII of the Civil Rights Act of 1964 forbids discrimination in the hiring process on the basis of race, sex, religion, color or national origin. Although Title VII specifically allows employers to administer "ability" tests to applicants, personality tests or psychological tests that are not carefully designed may cause an employer to run afoul of Title VII.
The protection afforded by Title VII may be violated if certain questions in a personality test have an adverse, or disparate, impact on a protected class of persons. For example, if certain questions tend to screen out more women than men, the adversely affected female applicant may have a legitimate claim of Title VII discrimination, so long as the question is not necessary to screen for a bona fide occupational qualification.