EEOC Issues Enforcement Guidance on Arrest and Conviction Records

A new Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII,” was issued by the Equal Employment Opportunity Commission (EEOC) on April 25, 2012. The Guidance provides that once the EEOC has established disparate impact (which it plans to do by issuing voluminous requests for applicant and hiring data from employers), an employer will have the burden of proving the affirmative defense that its policy or practice of relying upon arrest and/or conviction records in its hiring decisions is “job related and consistent with business necessity.” The EEOC recommends as a “best practice” that employers not ask about criminal convictions on job applications. For more information go to

Federal Health Care Reform Found Constitutional

The constitutionality of federal health care reform legislation, known as the Affordable Care Act (ACA), was upheld by the U.S. Supreme Court on June 28, 2012, with the exception of the provision expanding eligibility for Medicaid. Title 1 of the ACA, the employment-related section, was not addressed by the decision. Florida, et al. v. U.S. Dept. of Health and Human Services, et. al., Nos. 11-393, 11-398, and 11-400, U.S. Supreme Court (June 28, 2012).

DOL Publishes FMLA “Plan Language Booklet”

The Wage and Hour Division of the U.S. Department of Labor published a “plain language booklet” titled, “Need Time? The Employee’s Guide to The Family Medical Leave Act,” on June 20, 2012. In the booklet, the DOL answers common questions, clarifies employee eligibility, and clarifies FMLA protections. Download a copy of the 16-page booklet at

“Retaliatory Hostile Work Environment Claim” Now Recognized by All Circuits

Claims of “retaliatory hostile work environment” have now been recognized by all federal circuits, including the 11th Circuit. Under Title VII, an employee may now bring a “retaliatory hostile work environment claim”in all circuits based on severe and pervasive retaliatory acts by an employer after the employee engaged in a “protected activity.” Gowski, et al. v. Peake, et al., 11th Cir., No. 09-16371 June 4, 2012.