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Check Your Background Checks


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Upcoming Events


What's in a Name


FMLA Update: New Forms!



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HR & the Law in the News
March 2015, Volume 14, Issue 3
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "When Enough is (not) Enough: Today's Legal Landscape in Workplace Flexibility" plus archived programs! Click here for more info including 2015 discounted, annual subscriptions still available - get the remaining 9 for the price of 7! 
Check Your Background Checks

If you conduct criminal or credit checks on applicants or employees take note that these continue to come under fire. Here are some highlights:


Half Empty: So far this year several lawsuits have already been filed alleging violations of the Fair Credit Reporting Act (FCRA) by employers' obtaining background reports (criminal, credit, other).  

  1. Authorization form - be sure yours is separate and apart from any other document, such as your employment application. The FCRA requires that the notice be provided "in a document that consists solely of the disclosure." 
  2. Make it clear and legible - the FCRA requires that your notice be "clear and conspicuous." 
  3. Pre-adverse Action Notice - if you receive information which may be used as a basis (even if not the sole basis) for not hiring, firing or taking other adverse action against an applicant or employee, ensure you issue a pre-adverse action notice and copy of the report before making your final decision or taking adverse action.
  4. Adverse Action Notice - once you have provided a person with a "reasonable" period of time following the pre-adverse action notice be sure you issue an adverse action notice (yes, it does seem a tad repetitive).  

Half Full: On February 20, 2015 the US 4th Circuit Court of Appeals (covering MD, VA, WA, NC & SC) found in favor of the employer.  In the case of EEOC v. Freeman the court considered a class action lawsuit pursued by the EEOC challenging the employer's use of certain background checks. The EEOC argued that the employer's use of criminal background checks had a disparate impact on black and male applicants and that its credit checks had a disparate impact against black applicants. 


The EEOC's expert and statistical evidence was provided by an organization/industrial psychologist and associate professor of criminology.  In short, the court found "an alarming number of errors and analytical fallacies," the expert's work was of a "slapdash nature," "slipshod" and...well you get the idea.  


Lessons learned?  Know before you go and choose before you use. 

  • FCRA Compliance - If you obtain background reports from a vendor or third party (aka a consumer reporting agency or CRA) ensure you are complying with the FCRA.  The Federal Trade Commission has a handy publication, "What Employers Need to Know".  Click here.  
  • Know your state and local laws - At least 11 states limit employers' use of credit information and many state and local jurisdictions limit employers use of criminal information or when you may obtain it. 
  • Track your results - The Uniform Guidelines on Employee Selection Procedures (UGESP) may require you to periodically monitor for disparate impact based on at least race and gender.
  • Other Backgrounds and People - The above may apply not only to criminal and credit checks but to other background histories such as driving and academic records, as well as non-employment relationships, including independent contractors.  
Upcoming Events
Last Month's Webcast: 
"Employee Handbooks: Read 'Em and Weep?!"
Click here for the archived version ($25 pp)
This month's webcast, "When Enough is (not) Enough: Today's Legal Landscape in Workplace Flexibility
March 25, 2015 10:00 - 11:15 a.m. EST

Click here for a program description or to register.


$49 per person. Live and archived webcasts are pre-approved by HRCI and SHRM for 1.25 credits. 
Discounted group rates available. Click here for more information. 
Get the remaining 9 for the price of 7
Click here for more information.


Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Public Speaking Events
Monday, March 23rd "Employee Handbooks: Read 'Em & Weep" presented at SHRM's Employment Law & Legislative Conference, Washington, DC

Tuesday, March 24th "When Enough is (not) Enough: Today's Legal Landscape in Workplace Flexibility" also presented at SHRM's Employment Law & Legislative Conference, Washington, DC
What's in a Name? 
A rose is not a rose; then again it might be. Employment and worker relationships have also come under scrutiny lately. I suppose it's more accurate to say the scrutiny continues. Here are a few examples:

Can a company offer employees whose jobs are abolished conversion to independent contractor (IC) status, but only if the employee first signs a severance agreement including a release of claims? On February 13th in EEOC v. Allstate Insurance Company the 3rd US Circuit Court of Appeals issued a precedential ruling and held, "Yes" and that such an action did not constitute unlawful retaliation.

Can a company classify any worker as an independent contractor instead of an employee?  To do so properly you need to ensure you meet not only the IRS "test" but any that may be applicable under your state code(s) or regulation(s). Many states have laws, regulations or an agency practice that may apply different rules or factors when assessing employee versus IC status.   Just ask UberFedEx and more.
FMLA Update: New Forms!
This one might have slipped right by you.  If you are an FMLA-covered employer take a peek at any of your notices: Eligibility & Rights, Designation, Medical Certification, etc. They all expired this past Saturday, February 28th. But VOILA!  Silently and magically new forms have appeared on the DOL's website!! Click here. But alas, they're only good through March 31st so stay tuned!

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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