I recently had a consultation with an executive recruiter who stated that he recommended a specific worker to one of his corporate clients. However, after numerous interviews, the company decided not to hire this particular worker, simply because she was unemployed. Discrimination against the unemployed is rampant. Certain employers will not consider applicants who have been unemployed for more than six (6) months; while other jobs ads explicitly require applicants to be "currently employed," at the time of application. As of today, only Washington D.C. has a law making it illegal to discriminate against the unemployed. Oregon and New Jersey currently ban discriminatory language in job listings but not the practice of excluding unemployed applicants. Several other states are considering legislation on similar measures; including allowing unsuccessful applicants to sue under the same discrimination laws that apply to race or gender bias. However, it is unclear whether state laws would have much impact. New Jersey's law has been in place since 2011, and to date only one company has been cited for violations. As part of the ill-fated American Jobs Act in 2011, President Obama proposed banning job ads that discourage the unemployed and giving spurned job-seekers a way to file claims with the Equal Employment Opportunity Commission ("EEOC"). The Bill, however, did not make it through Congress. In Colorado, a House Bill forbidding employers from stating in job postings that unemployed candidates would not be considered was struck down in 2012.
While civil unions and domestic partnerships are not federally recognized, new Colorado legislation expands the available types of leave for those employees in a civil union or unmarried relationship. In March 2013, Colorado passed the Colorado Civil Union Act, which authorizes any two unmarried adults, regardless of gender, to enter into a civil union. A "civil union" means a relationship established by two eligible persons that entitles them to receive the benefits and protections and be subject to the responsibilities of "spouses." As it relates to employment, these "benefits and protections" generally include worker's compensation survivor benefits, protection from discrimination based on marital status and unemployment benefits. The federal laws do not provide protections or benefits to domestic partnerships or civil unions, and couples who have entered into a civil union in Colorado are not eligible for federal spousal benefits like those arising under the Family Medical Leave Act ("FMLA") or Employment Retirement Income Security Act ("ERISA.")
In Colorado, the Workplace Accommodations for Nursing Mothers Act of 2008 ("Colorado Nursing Mothers Act") requires public and private employers who have one or more employees to provide reasonable, unpaid break time or permit an employee to use paid break time, meal time, or both, each day to allow the employee to express breast milk for her nursing child for up to two (2) years after the child's birth. An employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet seat, where an employee can express breast milk in privacy. Reasonable efforts mean any effort that would not impose an undue hardship on the operation of the employer's business. Undue hardship means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business, or the nature and structure of its operation, including consideration of the special circumstances of public safety. Before an employee may seek litigation for a violation of this section, there shall be nonbinding mediation between the employer and the employee.
While volunteering at an employment law legal clinic recently a prospective client called in about a problem she was facing at work. The woman was approved for leave under the Family Medical Leave Act ("FMLA") as a caregiver for her son but also needed to have surgery. Her employer told her that any time off for the surgery and recovery would also count against her FMLA leave and she wanted to know if that was legal.