"Ban the Box" to Become the Law for Federal Employers

Later today in Newark, New Jersey President Obama will announce an Executive Order prohibiting questions about criminal history on federal job applications. The announcement comes after years of nationwide lobbying by the "ban the box" movement. The Executive Order is geared toward giving people convicted of crimes a chance to land a job.

It's no secret that most employers reject job applicants who reveal a criminal history on a job application. Prohibiting criminal history questions on an application will at least keep people in the running for a job. Employers will still be permitted to run background checks. There are no laws forbidding employers to base hiring decisions on background checks, so the ban the box order may not result in more employment for people with a crime on their record. It will, however, increase their employment opportunities. It remains up to the individual to demonstrate that despite their history they have experience and skills that make them the most qualified applicant.

To help convicts get a job the State of Ohio created Certificates of Qualification for Employment ("CQE"). Ohio employers who hire a CQE holder are protected from lawsuits arising from conduct by the holder. Getting sued is often a reason why many employers do not want to hire people with a criminal history. Read more about the process of obtaining a CQE here.

FMLA, No-Fault Attendance Policies and the Statute of Limitations

          A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep't of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff's employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff's twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

          Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

          Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

          The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

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