June

"Mayor Gregory A. Ballard recently signed an ordinance that generally prohibits the Consolidated City of Indianapolis and Marion County (hereinafter, ""City"") and its vendors from inquiring into an applicant 's criminal history until after the applicant 's first interview.

In addition to ""banning the box,"" the Ordinance further restricts the types of arrest and conviction records the City or its vendors may ask about or otherwise consider following the first interview. The Ordinance joins an ever-growing patchwork of laws that curbs inquiries into or the use of an applicant and|or employee 's criminal history in employment decisions. Indeed, approximately 10 states and 50 localities have ""banned the box"" and, although many of these laws only apply to public employers, several local ordinances cover government contractors.

And, many more jurisdictions have imposed other limitations on criminal background checks for private and public employers, as well as for city vendors. When vendors violate the Ordinance, the City may deny awards of contracts. Vendors also may incur a fine of no more than $2,500 for a first violation and $7,500 for a second or subsequent violation. Unless otherwise exempted, vendors should refrain from asking questions relating to arrests and|or convictions until after the applicant 's first interview. "

"The Sixth Circuit affirmed a lower court order granting summary judgment in favor of Kaplan in a high-profile credit check lawsuit that the EEOC brought against the education company.

The EEOC alleged that Kaplan 's use of credit checks causes it to screen out more African-American applicants than white applicants, creating a disparate impact in violation of Title VII of the Civil Rights Act of 1964. In support of its allegations, the EEOC relied on statistical data compiled by its expert witness. The expert witness assembled a team of ""race raters"" and directed them to review the photos and classify them by race. Based on the results of this ""race rating,"" in a sample of 1,090 (out of 4,670 applicants), the percentage of black applicants who were flagged for review based upon their credit histories was higher than the percentage of white applicants who were flagged. The lower district court excluded the EEOC 's expert 's testimony as unreliable. The EEOC 's ""homemade"" methodology for determining race was, ""crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself."""

"Wisconsin has become the thirteenth state to enact a law limiting the circumstances under which employers may request or require access to the personal internet accounts of applicants and employees. The 2013 Wisconsin Act 208,which amends the Wisconsin Fair Employment Act (WFEA)and will be enforced by the Department of Workforce Development (DWD), prohibits employers from ""requesting or requiring"" employees and applicants to provide ""access information"" for their ""personal Internet account"" or ""to otherwise grant access to or allow observation of that account."" In addition to prohibiting these requests for access information and access, the new law, as a general rule, prohibits employers from discriminating or retaliating against (e.g., discharging or refusing to hire) an employee or applicant who exercises their rights under the law. While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Because the meaning and impact of the law 's requirements and exceptions will evolve over time, employers should approach access issues with care and on a case-by-case basis. Employers should also keep in mind other risks associated with monitoring the social media activity of employees and applicants."