Tag Archives: Tracy A. Miller

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7 Ogletree Deakins attorneys earn honor

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, announced today that seven attorneys from the firm’s Arizona offices were selected by their peers for inclusion in The Best Lawyers in America© 2015. The 2015 list was compiled based on an exhaustive peer-review survey that included more than 5.5 million detailed evaluations of lawyers by other lawyers.

The Arizona-based Ogletree Deakins attorneys appearing on the 2015 Best Lawyers in America© list include:

• Joseph T. Clees (Employment Law – Management, Labor Law – Management)
• L. Eric Dowell (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• Leah S. Freed (Litigation – Labor and Employment)
• Mark G. Kisicki (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• James K. Mackie (Employment Law – Management, Litigation – Labor and Employment)
• Tracy A. Miller (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)
• Tibor Nagy, Jr. (Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment)

Best Lawyers® has also named Kisicki as the 2015 Labor Law – Management “Lawyer of the Year” in Phoenix, and Nagy as the 2015 Litigation – Labor and Employment “Lawyer of the Year” in Tucson. The publication awards this honor to a single lawyer in each practice area and designated metropolitan area.

Firm-wide, 184 Ogletree Deakins attorneys were named to the Best Lawyers© list. Many earned recognition in multiple categories—144 were named under the Employment Law – Management category; 104 were named under the Labor Law – Management category; and 105 were named under the Litigation – Labor and Employment category.

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Advice on doing background checks on potential employees

Many employers are surprised to learn that they should not automatically exclude an applicant based on a felony criminal record. Doesn’t an employer have a duty to protect other employees and customers?

Employers do have an obligation to properly screen employees, but they should ensure that the screening does not run afoul of anti-discrimination laws. Title VII of the Civil Rights Act does not protect individuals with criminal records per se, but rather prohibits policies that discriminate against applicants or employees based on race, either intentionally or in practice.

In June of this year, the Equal Employment Opportunity Commission filed lawsuits against BMW and Dollar General Corp. over their use of criminal background checks to screen out job applicants or fire employees. In these cases, the EEOC claims that the practice of automatic disqualification discriminates against African-Americans, who have higher arrest and conviction rates than whites.

While EEOC Guidance is not the law, it provides the EEOC’s view on the law and thus informs cautious employers of EEOC’s enforcement position. According to the EEOC’s April 2012 Guidance on arrest and conviction records, Title VII race and/or national origin discrimination may occur in two situations:

* When employers treat criminal history differently for different applicants/employees, based on their race or national origin (disparate treatment).
* When an employer’s neutral background check policy or practice disproportionately impacts protected individuals (disparate impact), unless the policy is job-related and consistent with business necessity.

A targeted screening process is the most common way an employer may establish that the background check is “job related and consistent with business necessity” — i.e., satisfy the “business necessity” affirmative defense — and, therefore, defend against an EEOC finding of disparate impact. The Guidance suggests that employers should use the targeted screening process to determine whether they may rely on the criminal background check information in taking adverse employment action.

A targeted screening process should take into account the following factors:
• The nature and gravity of the offense or conduct;
•  The time that has passed since the offense, conduct, and/or completion of the sentence; and
•  The nature of the job held or sought.

In its Guidance, the Commission repeats its long-held position that an arrest, by itself, is never job-related and consistent with business necessity because an arrest does not establish that criminal conduct has occurred, individuals are presumed innocent until proven guilty, and many arrests do not result in convictions. The Guidance makes no distinction between pending/current arrests and arrests that did not result in convictions, although employers often do. The Guidance provides, however, that an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.

In order to avoid EEOC charges and lawsuits related to criminal background checks, employers should follow these best practices:

• Eliminate policies or practices that automatically exclude people from employment based on any criminal record.
• Develop a narrowly tailored written policy for criminal background screening, wherein you identify essential job requirements, determine the specific offenses that may demonstrate unfitness for performing such jobs, determine the duration of exclusions for criminal conduct, record the justification for the policy, and note and keep a record of consultations and research.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity.
• Consider eliminating questions regarding criminal records from the employment application. The question can be asked later in the process when you have more information on the candidate. This also limits the number of targeted screening that must be performed.
• The background check consent form should be separate from other documents (e.g., employment application). It should describe the various types of background check information being requested and/or reviewed – e.g., criminal, credit, etc.
• Keep information about applicants’ and employees’ criminal records confidential, and only use it for the purpose for which it was intended.
• Do not use arrest information that did not result in a conviction. Pending arrests should be considered only if the employer has independent knowledge of the underlying facts.
• Comply with the Fair Credit Reporting Act when the records are obtained through a consumer reporting agency.
• Perform an individualized assessment of criminal background information before using it to exclude a candidate or an employee. Factors to consider are:

o Individual’s showing that he/she was not correctly identified in the criminal record;
o The facts or circumstances surrounding the offense or conduct;
o The number of offenses for which the individual was convicted;
o Older age at the time of conviction, or release from prison;
o Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
o The length and consistency of employment history before and after the offense or conduct;
o Rehabilitation efforts, e.g., education/training;
o Employment or character references and any other information regarding fitness for the particular position; and
o Whether the individual is bonded under a federal, state, or local bonding program.

Tracy A. Miller is shareholder with Ogletree Deakins in Phoenix. She represents management in all facets of labor and employment law and civil rights.

Nonexempt Vs. Exempt Employees

Arizona employers face an onslaught of wage and hour claims

For Shayna Balch, business is booming.

Since the start of 2012, the labor attorney at Fisher & Phillips in Phoenix is seeing — on average — one to three wage and hour cases filed each day. This is compared with one or two a month in previous years. Nationally, the number of new Fair Labor Standards Act suits lodged in federal courts between 2010 and 2011 jumped more than 15 percent, according to Federal Judicial Caseload Statistics.

Historically, Balch says wage and hour cases have not been an issue in Arizona. Because of that, employers are not prepared for the trend and she worries that this a ticking time bomb waiting to explode.

“There are multiple causes (for the increase)” says John Thompson, who handles wage-hour cases at Fisher & Phillips and is the editor of the firm’s Wage Hour Laws Blog.

“They include a greater familiarity of plaintiff’s lawyers with wage-hour laws and with the many areas in which non-compliance can occur; workers’ increasing awareness of wage-hour requirements — including via the Internet and the media; the growing number and complexity of the laws themselves;  and the stepped-up enforcement efforts of government officials.”

As the economy suffered and employers looked for ways to reduce labor costs, many of the cost-cutting measures conflicted with employment laws, according to Phoenix attorney John Doran of Sherman & Howard, and that has led to an avalanche of wage and hour claims. The number of collective actions has increased by more than 400 percent nationally in the last decade. In Arizona, the increase has been even more dramatic.

“In Arizona, there has been a sudden and dramatic increase in wage and hour collective and class actions,” Doran says. “This should be a source of serious concern for Arizona employers.”

It’s particularly stressful for employers desperately trying to recover from the recession.

“Employers have looked for every possible angle to reduce labor costs including overtime, and many of those angles simply do not jive with the wage and hour laws,” Doran says. “This has been especially true with employers trying to convert their employees into independent contractors, which is an extremely difficult, and often mishandled strategy that has the attention of the Department of Labor and the I.R.S.”

The Department of Labor has increased its strength thanks to a significant bump in funding under the Obama Administration, increasing both its enforcement and public awareness campaigns. More than 250 new investigators have been hired and the revitalized Wage & Hour Division launched its “We Can Help” campaign in 2010 to increase visibility and accessibility to workers.

“The DOL has also been more aggressive in pursuing employers, by expanding the scope of wage and hour investigations, issuing more administrative subpoenas, and imposing more penalties on employers,” says Phoenix attorney Tracy A. Miller, shareholder. Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

And the DOL is making it even easier for employees to build cases against their employers. Last year, the DOL developed a smartphone application that allowed employees to keep track of their own time and monitor employer compliance with certain wage and hour requirements. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Empowered with DOL-provided tools, “We are seeing more individuals who file suit on their own behalf,” says Stephanie Quincy, a partner in the labor and employment practice group for Steptoe & Johnson. “In Arizona, if wages are not paid when they are due or the wages are withheld without a good faith reason, the employee is entitled to three times the amount, as a punishment for the employer. We are seeing employees filing these suits themselves, without an attorney.”

So where are employers most susceptible?

“The biggest increase has been in lawsuits and investigations involving workers who claim to be misclassified as independent contractors,” Miller says. “Failing to pay workers for pre-shift and post-shift activities, such as computer boot-up and power-down, is also still a hot issue. Another common mistake that the DOL and private litigants are focusing on is the failure to include bonuses and commissions when calculating overtime. Wage payments during temporary company shut downs and furloughs has been a hot issue, although usually these issues are resolved without a lawsuit.  Cases involving the misuse of the tip credit or tip pools have also been on the rise.  Finally, we continue to see off-the-clock cases from employees who work remotely and/or routinely use smartphones.”

All of this is a conundrum for employers, considering the changing face of the economy and the workplace. The DOL is encouraging employers to comply with the Fair Labor Standards Act, which was enacted in 1938 when people worked at work. Now, thanks to technology, many of us can work anywhere and anytime.

To protect themselves, employers of all sizes should engage in serious introspection, Doran advises.

“An internal wage and hour audit, if not a must, is still the most valuable tool employers have to fend off such claims,” Doran says, “Annual or bi-annual audits would include analyzing job descriptions and comparing them with what is actually happening in the workplace day to day; examining timekeeper practices; ensuring that supervisors and managers are adequately and accurately carrying out otherwise compliant pay practices; and much, much more. These audits are best conducted through outside legal counsel in order to cloak them in attorney-client privilege.”

Quincy says employers should examine each employee and determine if the employee — not the position — is doing the type of work that is considered “exempt” or “non-exempt.” Non-exempt employees must be paid overtime. Employers should also carefully examine deductions from pay and time, including automatic deductions such as rest and meal breaks. Employers must train supervisors that any changes to hours worked must be explained to the employee and the employee must sign off on them.  The employer should hold supervisors accountable for encouraging — or pressuring — employees to work off the clock or not to accurately record their hours.

“Often businesses feel as though they must be in compliance because they have been paying workers in the same way for years without any problems,” Miller says. “Very few businesses are completely in compliance with the wage and hour laws, however, and an investigation or a lawsuit is an expensive way to learn about violations.  Businesses that proactively audit their pay practices end up saving a lot of money in the long run.”