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For the first time, private employers will have easier access to criminal information about their employees through iCORI, Massachusetts’ online criminal records database. This will enable responsible employers to assure they are not exposing their business to unacceptable risk. But every new resource has its price. Among the highlights of the new law are stringent record-keeping and notification requirements. Along with new penalties.

Attorneys at Seyfarth Shaw LLP offer the following summary of the recordkeeping rules:

The new CORI law requires employers to follow certain procedures in order to access an individual’s criminal record through DCJIS. Before an employer conducts a criminal record check, it must have the subject of the criminal check sign a CORI Acknowledgment Form authorizing the employer to obtain his or her record and verify the subject’s identity by reviewing a form of government-issued identification. M.G.L. c. 6, § 172(a)(30)(c). Pursuant to the proposed regulations, acceptable types of government-issued identification include: (i) a state-issued driver’s license; (ii) a state-issued identification card with a photograph; (iii) a passport; or (iv) a military identification. 803 CMR 2.09(3). The proposed regulations require the employer’s representative to sign and date the CORI Acknowledgment Form certifying that the subject was properly identified. In the event that an employer is unable to verify an individual’s identity and signature in person, the proposed regulations allow the individual to sign an Acknowledgement Form before a notary public. 803 CMR 2.09(5). CORI Acknowledgment Forms must be maintained by the employer for at least one year.2 M.G.L. c. 6, § 172(a)(30)(c).

To obtain CORI from DCJIS, the individual requesting the record must provide DCJIS with information identifying the subject (name, date of birth, and last six digits of social security number) and certify under oath that: (i) he or she is the authorized designee of the employer; (ii) the request is for the purpose of evaluating an applicant or current employee; (iii) the applicant or employee has signed an acknowledgement form authorizing the employer to obtain criminal record information; and (iv) the requestor has verified the identity of the applicant or employee by reviewing a form of government-issued identification. M.G.L. c. 6, § 172(a)(30)(c). Although not specified in the statute, the proposed regulations state that the employer must submit the subject’s executed CORI Acknowledgment Form to DCJIS. 803 CMR 2.09(1)(a).

The proposed regulations also provide that the Acknowledgment Form is valid for one year from the subject’s having signed the form or until the subject’s employment ends, whichever occurs first. 803 CMR 2.09(9). An employer that submits a new CORI request within one year of the subject’s having signed the original Acknowledgment Form must provide the subject with written notice at least 24 hours prior to submitting the request. 803 CMR 2.09(9)(a). If the employee revokes his or her authorization upon receiving such notice, the employer may not request the employee’s CORI. 803. CMR 2.09(9)(c).3

Employers should be aware that DCJIS will maintain a log of all requests for criminal records, which includes the name of the requesting entity, the date of the inquiry, and the certified purpose of the inquiry. An individual may request a “self-audit” and obtain information from DCJIS regarding requests for the individual’s own CORI. M.G.L. c. 6, § 172(g); 803 CMR § 2.24.

A federal court on April 17th, blocked the National Labor Relations Board (NLRB) from issuing a rule that would require employers to post notices explaining workers’ collective bargaining rights.

The new rule would require employers to display prominently legal rights of employees to collective bargaining. The rule has been bitterly contested by employer organizations as the implementation date has been pushed back for over a year.

Part Two of the MA Criminal Offender Record Information (CORI) amendments kick in on May 4th

**Job applicants must signs acknowledgments that their CORI records are being sought.

**Job applicants must be provided with a copy of their CORI record if they are not hired as a result of the criminal information

**Employers must maintain the acknowlegment and the dissemination logs for 1 year.

**Employers must have a written policy on file if they conduct 5 or more investigations.

And much, much more. See the MA website for more information

Some regions will grow jobs slower than others, experts predict.

On February 1, 2012, the Bureau of Labor Statistics (BLS) released its “Employment Projections—2010-2020” projecting a hopeful addition (or regaining) of 20.5 million new jobs in the United States. Given that the “Baby Boomers” will age out of the employment pool and expand to fully one quarter of the US population, it is no surprise that healthcare jobs will be the fastest growing sector over the decade. The largest job losses are projected to be in manufacturing and the federal government. Apparel knitting mills are expected to lose 92,000 jobs and the Post Office is expected to lose 182,000 jobs.

BLS economists try to predict job growth by region. In general terms, population density is a predictor of demand. (The more people, the more buyers of goods and services.) Industry concentration is a predictor of supply. Our region, Providence-Fall River-New Bedford, is a mixed bag. We have a large, if slow growing population, but a heavy investment in the declining manufacturing sector.

Jed Kolko, Chief Economist of real estate search engine Trulia, and a commentator for Huffington Post, adds another factor when he predicts job growth trends. The weather. According to California resident Kolko, milder and dryer is better.

In “Where the Jobs Will Be in 2020“, Kolko challenges the BLS criteria for growth. “The decades long shift of American jobs and people from the Rustbelt toward the sun will continue,” he says. When he ranks the 100 largest metro regions in the US for job growth, Providence-Fall River-New Bedford ranks 92nd out of 100.

Maybe global warming will alter Kolko’s predictions.

Are employers turning up their noses at the unemployed when it comes to considering them for job openings? The US Equal Employment Opportunity Commission is proposing to protect unemployed job seekers, by making it illegal for employers to consider the employment status of applicants.

The EEOC introduced a bill in August 2011 that would make it unlawful for an (employer) to refuse to consider or refer an individual for employment based on the individual’s status as unemployed or to limit, segregate, or classify individuals in any manner that may limit their access to information about jobs or referral for consideration of jobs because of their status as unemployed.

According Anne Duffy, counsel for the American Staffing Association “New Jersey became the first (and, so far, only) state to prohibit employers from discriminating against unemployed individuals…In 2011, bills were pending in Illinois, Michigan, and New York…So far in 2012, similar bills have been introduced in Arizona, California, Hawaii, Iowa, and Nebraska.”

Fernan R Cepero, PHR, New York State Director for the Society of Human Resource Management testified before the EEOC that “SHRM is unaware of widespread recruiting practices that involve blanket exclusions, (however) long-term unemployment might mean the job seeker’s skills might be outdated or obsolete.”

Today, the US Department of Labor issued a proposed regulation to eliminate the “companion exemption” for in-home and live in caregivers. The rule is entitled Application of the Fair Labor Standards Act to Domestic Service. The minimum wage and overtime rules would, if enacted, apply to all live in and day workers who assist the elderly and infirm in their own homes.

In-home care is one of the fastest growing occupations in the US, owing to the aging population and the cost of institutions for those unable to live on their own. Home Care Staffing companies would be required to pay employees for all hours on premise and to pay time and a half after 40 hours a week, even if the care giver is off duty, but available on call.

This is expected to have a major impact on the positions of unskilled workers and on the cost of keeping people in their own homes.

On November 23, 2011, Governor Patrick signed a bill that protects transgendered individuals from discrimination in employment. “An Act Relative to Gender Identity,” makes Massachusetts the 16th state extend protected class status to its 33,000 residents who identify as transgender. The law will become effective on July 1, 2012. The passage of this bill follows Governor Patrick’s February 2011 executive order prohibiting discrimination against transgender people in state employment.

What does the law say?

A number of Massachusetts laws will be amended to add “gender identity” to the list of protected classes. Among these, General Law Chapter 151B, Sections 3 and 4, will authorize the Massachusetts Commission Against Discrimination to investigate and adjudication discrimination on the basis of “gender identity,” and will make employment discrimination of the basis of “gender identity” an unlawful practice, respectively.

What is “gender identity?”

According to the Act, gender identity is demonstrated through an individual’s “appearance, or behavior.” The Act makes clear that it does not matter whether “that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

How does an individual “prove” that they identify as a certain gender?

According to the Act, an individual demonstrates gender-identity through the following:
• medical history, care or treatment of the gender-related identity;
• consistent and uniform assertion of the gender-related identity; or
• any other evidence that the gender -related identity is sincerely held, as part of that person’s core identity.
Thus, the Act provides that while medical evidence and consistent presentation are two ways an individual can demonstrate that their gender identity is sincerely held, “any other evidence” can be used to prove the same.

What does the law change?

Practically speaking, not much. More than 10 years ago, the MCAD extended protection to transgendered individuals under the existing sex discrimination and disability statutes. However, by formalizing “gender identity” as a protected characteristic, Massachusetts legislators have put employers on notice that they will be held accountable for discrimination against transgendered individuals.

Take-Aways:
• Ensure that managers understand that gender identity is a protected characteristic. Therefore, both managers and the company can be held liable if they know that an employee is being discriminated or retaliated against, or harassed because of their gender identity;
• The next time you revise your Employee Handbook, add “gender identity” to the list of characteristics that are protected by law, and by the Company;
• Handle a name change request from a transgender employee just as you would handle any employee’s name change request;
• Do not take any adverse action against an employee on the basis that other employees, customers, clients or patrons are uncomfortable around the transgendered employee;
• Do not refer to an employee with pronouns that are not gender-identity appropriate;
• Do not inquire about surgeries or medical procedures that an employee has undergone;
• Do not require an employee to provide legal or medical documentation that he or she identifies as a particular gender;
• Refer to an employee by his or her chosen name, not necessarily his or her legal name. In one MCAD case, the Commission found that an employer that insisted that a transgendered employee be called by her birth-name, “Raymond,” rather than by the name she identified with, “Rachel,” was evidence of transgender discrimination. That same Commission ruled that forcing an employee to dress in male clothing, because she was born male, was evidence of transgender discrimination.
• When in doubt, ask. Making sure a transgendered employee is not discriminated against is unchartered territory for many employers. A willingness to engage openly with transgendered employees can go a long way. Most transgendered employees will be welcome their employer’s good-faith efforts to understand and support their particular issues

- From a post by Allyson Kurker of the Kurker Law Group

The controversial National Labor Relations Board rule requiring businesses to post notices informing workers of their right to unionize has been deferred until Jan 31, 2012. According to NLRB staff, the delay will allow for “enhanced education and outreach to employers, particularly those who operate small and medium-sized businesses,”

The rule applies to all private-sector employers subject to the National Labor Relations Act. All covered employers must post the notice regardless of whether their employees are currently represented by a union.

The new rule generally requires all employers to post the notice “in conspicuous places, including all places where notices to employees are customarily posted.” Therefore, both staffing firms and staffing clients will have to post the notice. The notice also must be distributed electronically, but only if the employer customarily communicates with its employees electronically.

Employers will have two options for notifying employees electronically. They can either download the notice and post it (e.g., on an intranet or Internet site), or provide a link to the NLRB Web site, where the full text of the notice will be published. The link must include the words “Employee Rights Under the National Labor Relations Act.”
Beginning Nov. 1, each NLRB regional office will provide employers with a copy of the notice free of charge. Employers also can print it directly from nlrb.gov. NLRB will make available foreign language versions of the notice, which are required at workplaces where at least 20% of employees are not proficient in English.

Failure to post the notice can be considered an unfair labor practice. Also, NLRB may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Anne Duffy, American Staffing Association, and Melanie Trottman,

Wall Street Journal

contributed to this article.

Newport Beach, Calif., January 13, 2011 — Demand for temporary workers in the United States is expected to increase 9.9 % on a seasonally adjusted basis for the 2011 third quarter, when compared with the same period in 2010, according to the Palmer Forecast™, released today.
The Palmer Forecast indicated a 12.4% increase in temporary help for the just-ended 2011 first quarter, which actually came in lower than anticipated, at an 8.9% increase, reflecting the downward trend in Q2 GDP.

Following recent trends, our 2011 third-quarter forecast shows growth and indicates another increase in demand for temporary workers, marking the seventh-consecutive quarter of year-over-year increases,” said Greg Palmer, founder and chief executive officer of G. Palmer & Associates, an Orange County, California-based staffing industry consulting firm.

“What is not as clear is the sustainability of the growth. There have been three consecutive months of small sequential declines, and the-year-over-year growth rates are growing, but at a decelerating rate, as evidenced by Q1 increases at 12.4% and Q2 at 8.9%, respectively. It also is important to be cognizant that consumer spending is relatively soft, the real estate and construction sectors are still depressed in many markets, and both state and local governments continue to make additional job cuts,” Palmer added.

The Bureau of Labor Statistics (BLS) reported that seasonally adjusted temp jobs grew 7.3% year-over-year in June. Temp job growth, seasonally adjusted, was down 0.1% sequentially from May.

“This trend is a sobering sign of a pause in the flexible labor markets, since historically, the May to June increase has been higher, at 1.6%,” said Palmer. “In 2010, temp help created 310,000 temp jobs and has been flat so far in 2011.”

The commonly referred to unemployment rate (U3) decreased to 9.2% in June from 9.1% in May, reflecting that 173,000 were added to the ranks of the unemployed.

The Labor Department report also reported that 18,000 non-farm jobs were added in June, of which 53,000 were service-related, and 4,000 were goods-producing jobs. The largest employment headwind continues to remain in the government sector, with the loss of 39,000 jobs in June and 659,000 jobs in the last 12 months.

“These latest statistics all add up to a growing amount of uncertainly and an uneven distribution as it relates to new job growth.” Palmer said. “The persistently high unemployment rates continue to have far-reaching effects across a broad spectrum of workers. Those at the lower end of the job market in terms of skills and education, along with workers in the previously mentioned hardest hit sectors of government, as well as in the real estate and construction sectors, are experiencing the greatest challenges.”

As reported by the BLS, workers with college degrees experienced a slight decrease in their unemployment rates in June to 4.4% from 4.50% in May. The unemployment rate for workers with less than high school degrees during the same period decreased to 14.3% in June from 14.7% in May. The U6 unemployment rate, which tracks those who are unemployed, as well as those who are underemployed and are working part-time for economic reasons, was up slightly at 16.2%. The U6 rate is considered the rate that most broadly depicts those most affected by the downturn and measures the rate of discouraged workers.

The next few quarters…
“We still expect the unemployment rate to remain stubbornly high for the foreseeable future, with one of the key aspects of the high rate continuing to be the much talked about skills gap found in available workers and their current skills, versus the required skills necessary for today’s increasing technical and skills-based positions,” Palmer said. “The key indicator to watch is the GDP rate. Historically, there needs to be greater than 2% growth to create jobs, and in the last two quarters, the rates have been slightly below that figure.”

The Palmer Forecast™ is based, in part, on BLS and other key indicators. The model was initially developed by The A. Gary Anderson Center for Economic Research at Chapman University and serves as an indicator of economic activity. Companies that employ temporary staff use the forecast as a guide to navigate through fluctuating economic conditions in managing their workforce to meet business demands.

The Palmer Forecast can be accessed at www.GPalmerandAssociates.com.