Background Check Problems

Overly Broad Background Check Authorization

Sarmad Syed wanted to work for M-I, LLC. Like many employers, M-I conducts background checks of its prospective employees. Following standard operating procedures, M-I had Syed sign a Disclosure Release. The release allowed M-I to conduct a background check under the Fair Credit Reporting Act. It also contained release of liability regarding M-I using or disseminating the information obtained.

The liability waiver at the heart of the present dispute reads as follows:

I understand the information obtained will be used as one basis for employment or denial of employment. I hereby discharge, release and indemnify prospective employer, PreCheck, Inc., their agents, servants and employees, and all parties that rely on this release and/or the information obtained with this release from any and all liability and claims arising by reason of the use of this release and dissemination of information that is false and untrue if obtained by a third party without verification.

It’s not clear whether M-I hired Syed, but Syed sued M-I claiming including a liability waiver violated the FCRA’s requirement that the disclosure document consist “solely” of the disclosure. 15 U.S.C. § 1681b(b)(2)(A)(i)  Syed sought statutory and punitive damages, attorney’s fees and costs. Syed did not seek actual damages, which would have required proof of actual harm.

Background Checks under the FCRA

The Ninth Circuit looked whether “a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” which simultaneously serves as a liability waiver for the prospective employer and others.”

The court found that a prospective employer violates Section 1681b(b)(2)(A) when the background check disclosure document includes a liability waiver. The court concluded that the disclosure document must consist “solely” of the disclosure, and a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure.  Section 1681b(b)(2)(A) unambiguously requires a document that “consists solely of the disclosure.” The statute does not implicitly authorize the inclusion of a liability waiver in a disclosure document. The statute’s explicit language does not allow a liability waiver.

In California, employers cannot obtain credit reports on prospective employees except in certain limited situations. Employers that can obtain credit reports need to follow the disclosure requirements.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

Cal Chamber Updates Employee Handbook Creator

California Chamber of Commerce Employee Handbook Creator

Employers looking to create an inexpensive employee handbook oftentimes use the California Chamber of Commerce’s Employee Handbook Creator. It is a good resource for obtaining up-to-date, compliant policies. Although not customized solely for your company, it contains the policies you need. It also tells you why the policies are in place.  The Employee Handbook Creator asks a series of questions, and includes policies appropriate for the number of employees.  It also identifies required policies versus recommended policies. The software now asks questions about where your employees work, so you can comply with local ordinances. For around $250, it’s an affordable and reasonable solution for smaller employers.

The Chamber recently updated its standard policies to include city- and county-specific policies regarding paid sick leave and minimum wage laws. With the ever-growing number of local ordinances imposing new obligations on employers, the policies are very helpful.

The Chamber also has a chart of local minimum wage laws and paid sick leave ordinances. The chart identifies whether there are specific posting requirements, which employers must comply with the local laws, and links to the ordinances and FAQs. This is a very helpful resource, and I’ve just bookmarked it.

In conjunction with Fox Rothschild, LLP, the Chamber also published a comparison of California State and local paid sick leave laws. You guessed it, I’ve bookmarked this one as well.

The California Chamber of Commerce has not paid me to provide this information. After creating, reviewing and revising scores of handbooks over the years, I’m just a fan of low-cost ways to help employers comply with the law.

Have Your Employee Handbook Reviewed by an Expert

Using the Chamber’s Employee Handbook Creator is not an excuse to avoid having an knowledgable professional review the handbook. The Chamber uses some language in its policies that I like to change, and the resulting handbook won’t necessarily express the culture of your business. Additionally, as good as it is, I’m always reluctant to rely entirely on a computer-generated document. I like to read and edit the employee handbook to make sure it actually fits the employment. The Chamber handbook is a lot better than copying the handbook from your competitor or your last employer, but I still recommend having it reviewed by counsel or knowledgeable HR professional before implementation.

Most employers should update their handbook every one to two years. Sometimes changes in the will require more frequent updates. For example, in the middle of last year the Fair Employment and Housing Commission implemented updated regulations requiring all employers to have a written sexual harassment prevention policy in place and distributed to all employees. I wrote about some of the new requirements here.

If you have a question about your employee handbook, contact the Nuddleman Law Firm, P.C.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Labor Law and Payroll Tax Seminar

Labor Law and Payroll Tax Seminar

The California Employment Development Department (EDD) and the Division of Labor Standards Enforcement (DLSE or Labor Commissioner) are hosting a free seminar regarding labor law issues, wage and hour requirements and payroll tax issues. The presentation will cover:

  • Record keeping requirements
  • Reporting requirements
  • Employer obligations
  • Payment requirements
  • Common wage and hour laws
  • Employer and employee rights and responsibilities
  • How to distinguish between an employee and an independent contractor

The presentation is being held on March 15, 2017, from 9 a.m. to 3:30 p.m. at the Dublin Civic Center.

Although I am not presenting at this seminar, I’ve presented similar topics to various groups in the past, and it is an area that requires attention. Many new or smaller employers, and even some more established and larger employers, make small but costly mistakes. This presentation will help employers understand their obligations, and make corrections to avoid problems in the future.

I doubt the presentation will cover what to do if you’ve already made a mistake without increasing your liability, which is unfortunate. I always prefer to include possible resolutions to common labor law issues when an employer discovers a possible problem.

Register for Labor Law Seminar

Employers interested in attending can register at www.edd.ca.gov/Payroll_Tax_Seminars/ or call 888-745-3886. The agencies conduct these presentations periodically, so if you can’t make the March 15th presentation, check for other available dates.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

New Anti-Harassment Regulations

New Anti-Harassment Regulations In Effect

Effective April 2016, the Fair Employment and Housing Commission adopted new regulations regarding sexual harassment in the workplace. Employers have an affirmative duty to create a workplace environment that is free from sexual harassment and other employment practices prohibited by the Fair Employment and Housing Act. The new anti-harassment regulations provide clarity, but also create some ambiguity. Employers who have not modified their handbooks to comply with the new regulations could find themselves in trouble.

What Must Be Included in Policies Under the New Anti-Harassment Regulations?

In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, all employers must develop a written harassment, discrimination, and retaliation prevention policy that lists all current protected categories covered under the Act. The list is ever-growing, so it is important to list all protected categories.

The anti-harassment policy must indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act. The new anti-harassment regulations also require employers to create a complaint process to ensure that complaints receive:

(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.

The regulations don’t define “qualified personnel,” but it likely refers to the same persons that can conduct sexual harassment prevention training, or other persons trained to conduct investigations. The new regulations beg the question of whether an existing employee can ever truly be “impartial.”

Anti-Harassment Complaint Process

The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. Other individuals, such as the following, must be available to receive complaints:

(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

The new anti-harassment regulations require supervisors to report any complaints of “misconduct” to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training. The regulations do not define “misconduct,” but the term is arguably broader than complaints about sexual harassment.

Not surprisingly, when an employer receives allegations of misconduct, it must conduct a “fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.” The regulations do not, however, define what constitutes “due process.” Additionally, I guarantee there will be litigation over whether the conclusions reached are “reasonable,” and “based on the evidence collected.”

The policies must state that “confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.” The policy must also state “that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.”

Finally, the policy must make it clear that “employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.” Again, note that the anti-harassment regulation is not limited to complaints about harassment. Arguably, employers cannot retaliate against an employee because the employee participates in any “workplace investigation.”

Disseminating Policies Under the New Anti-Harassment Regulations

The new anti-harassment regulations also dictate how the policy must be provided to employees:

(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
(2) Sending the policy via e-mail with an acknowledgment return form;
(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
(4) Discussing policies upon hire and/or during a new hire orientation session; and/or
(5) Any other way that ensures employees receive and understand the policies.

Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

The new regulations can be found at Cal. Code Regs., tit. 2, § 11023

If you haven’t updated your handbook recently, now is a good time to review the policies to ensure your handbook complies with the new regulations.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

IMDb Halts Age Discrimination Law

New Age Discrimination Law in the Entertainment Industry

In 2016, the California legislatures passed AB 1687, “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”  The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. Although Governor Brown signed the new age discrimination law, IMDb sued the government, arguing the statute violated its first amendment rights.

Injunction Prohibiting Enforcement of Age Discrimination Law

On February 22, 2017, U.S. District Court Judge Vince Chhabria issued an injunction prohibiting the government from enforcing the statute. According to Judge Chhabria’s order, “it’s difficult to imagine how AB 1687 could not violate the First Amendment.” Although the government established a valid “goal” of limiting age discrimination, the government failed to show that the restriction is “actually necessary” to serve a compelling government interest. The government “presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it’s necessary to combat age discrimination).” The court held “there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.”

So, for the time being, IMDb can continue to publish the ages of actors. I guess Hollywood will have to find another way to combat age discrimination in the entertainment industry. The judge’s order, although not the conclusion of the litigation, is a definite preview of how the court views this new age discrimination law.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.