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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

Fair Pay Act Investigations

California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:

  • Seniority system, merit system, or system that measures earning by quantity or quality of production; or
  • Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.

Fair Pay Act Presentation

I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.

Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”

·         What are the actual tasks performed for each job?  What percentage of time is spent on each?

·         What experience, training and education are required for each job?

·         What knowledge is required to perform each job?

·         What kinds and amounts of physical and/or mental effort are required for each job?  Is one job more physical difficult or stressful?

·          What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?

·         What is the working environment?  Does one job involve an exposure to hazards or damages?

·         Does one job require supervision of other employees?

·         What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?

·         What are the programs, equipment, tools or products used for each job?

·         What kinds and amounts of physical and/or mental effort required for each job?

Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.

If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.

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.

The Magnificent Seven Wage and Hour Rules

The Magnificent Seven

The Magnificent Seven is one of my all-time favorite movies. The story is timeless and has been adapted several times. Yes, I know the Magnificent Seven is an adaptation of Akira Kurosawa’s Seven Samurai. Even Pixar came out with it’s own version in A Bug’s Life. I never tire of the story-line and the actors in the original Magnificent Seven. I even bare a scar on my forehead from when my brother tired to imitate James Coburn’s knife throwing skills. Thankfully the butt-end of the screwdriver hit me instead of the other end. Thanks, David!

When I saw the remake coming out with some of my current favorite actors, it definitely made my “must-see” list. It also got me thinking: what other Magnificent Sevens are worth considering?

The Magnificent Seven Wage and Hour Rules

Those familiar with my law practice know that I represent a lot of employers and employees regarding wage and hour disputes. I also frequently present seminars to attorneys, HR staff and payroll specialists regarding how to pay employees correctly. Therefore, I thought it would be fun to provide my Magnificent Seven Wage and Hour Rules.

In no particular order, here is my list of seven wage and hour rules to follow if you want to avoid problems in the workplace:

  1. Only pay a salary to employees if they are truly exempt from overtime.
  2. Keep accurate records of the hours worked for at least 4 years.
  3. Have policies in place providing for regular rest and meal breaks, and have employees clock out for unpaid meal breaks.
  4. Just because you think someone is an independent contractor, doesn’t mean the government or the courts will agree.
  5. Know if local ordinances require different rules for employees working in different cities and counties.
  6. Commission and bonus agreements should be in writing and identify when a commission or bonus is earned.
  7. Tips belong to the employees, not to the employer!

Employing workers in California can be difficult. Most employers make mistakes out of good intentions rather than evil objectives. Regardless of the intent, however, employers are responsible for following state and federal wage and hour laws. Hopefully this short list will help employers and employees avoid the most common wage and hour problems.

Now, go buy your ticket for the new Magnificent Seven. I don’t know if Denzel Washington, Chris Pratt and Ethan Hawke can match Yul Brynner, Steve McQueen and James Coburn, but I’m sure it will be a good time.

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.

Employers Must Provide Written Offer Before Using E-Verify

This year, Governor Brown signed AB 622, expanding the definition of “unlawful business practices” for employers using E-Verify.  The federal E-Verify system is administered by three different federal agencies, enables participating employers to use the system, on a voluntary basis, to verify that the employees are authorized to work in the United States.

Existing law prohibits state entities from requiring an employer—other than those government entities—to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds. Employers cannot use E-Verify to retaliate against employees.  For example, if you have an employee that makes an complaint about a violation of the law, and you want to terminate that employee, you cannot use E-Verify to determine the employee’s immigration status and use that as a basis for termination.

AB 622 adds Labor Code 2814 expanding the definition of an unlawful employment practice.  The new law prohibits an employer or any other person or entity from using the E-Verify to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment.  There are exceptions when federal law requires E-Verify.

The new law is intended to prevent discrimination in employment rather than to sanction hiring persons who are not authorized to work in the United States.

Employers Must Provide Written Offers Before Using E-Verify

Does this mean employers cannot use E-Verify?  No.  It just means, unless specifically required by federal law, employers must provide written offers before using E-Verify.

If an employer using E-Verify receives a “nonconfirmation notice”—i.e., E-Verify cannot confirm the employee is authorized to work in the United States or the employee is potentially using someone else’s social security number—the employer must provide the employee any notifications issued by the Social Security Administration or the United States Department of Homeland Security regarding the nonconfirmation notice.

Employers violating Labor Code 2814 could face civil penalties of up to $10,000 for each violation.

Employers should never retaliate against an individual for engaging in protected activity.  Newly enacted Labor Code 2814 adds additional penalties against employers misusing the E-Verify or similar systems.  Employers must provide written offers before using E-Verify.  The offer letters should state the offer is contingent upon the employee passing required background checks and proof the employee is authorized to work in the United States.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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, Berkeley, San Ramon, Concord, 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.

 

Hiring the Right Attorney

FAQ’s on Hiring the Right Lawyer

When you are considering taking legal action, it’s important to hire the right attorney for you.  It is important to have an attorney you trust, and one that can provide you the services you need.  The following are some answers to common questions my clients have when hiring a lawyer.

How do I find an attorney?

Searching online for an attorney is one method of finding the right attorney, but choosing an attorney solely on the basis of an advertisement is not always the best idea. Talk to friends, family members, colleagues and your network contacts. They oftentimes have positive or negative experience with specific attorneys that can help refine your search or point you in the right direction. Check online reviews (such as avvo.com), but be aware that one person’s experience does not guarantee a similar experience.

What things should I be looking for when I hire an attorney?

Consider your needs. You likely want an attorney with experience area of law in your case.  While you may be able to save some money by hiring a less experienced attorney, it may cost you in the end because the less experienced attorney may take more time to do the work, or may make potentially costly mistakes.

Also consider what you are trying to accomplish.  Do you just want advice, or are you already involved in a lawsuit?  Do you want your attorney to be aggressive, or use other tools to resolve your matter? Do you need someone to take the case on a contingency basis or can you afford to pay legal fees? Being clear about what you want will help you find the right lawyer for you.

How many attorneys should I talk to before I make a decision?

That’s going to depend on what you are looking for, and how quickly it takes for you to find the right attorney for you.  You may have a good feeling about the first attorney you meet, or you may need to continue searching for an attorney that fits the qualifications you are looking for.  If you meet with an attorney, even if it’s not one you are going to hire, ask for referrals to other attorneys.  A responsible lawyer will want you to find the right attorney, even if that’s not the attorney you are currently talking to.

Will I have to give my name and the name of the other side? 

Yes.  Attorneys represent a number of clients, and are required to maintain a list of everyone they have represented so they can make sure there is no conflict of interest.  It’s better to find out if there is a conflict of interest early, and the only way to do that is to provide the attorney with the names of any interested parties.

Can I just prepare a written summary and email that to a bunch of attorneys to see who is interested in my case?

I recommend against it.  Although it may be quicker to send out a mass email to several attorneys at once, you don’t know whether the attorney you are sending your summary to will have a conflict.  What would happen if you send the email to an attorney that represents the other side?

While drafting up a summary of what happened and gathering the relevant documents is a good thing to do, I would not send that to a prospective attorney unless the attorney has asked for it.  If a firm’s website gives you the ability to send the attorney an email, keep the description short.  Rather than describing your case in detail, let the attorney know you’d like to talk with someone about a wrongful termination, or your unpaid wages, or whatever short description fits your situation.  A reputable firm will usually try to respond within one business day.

Why do some attorneys charge for the initial consultation and others don’t?

Attorneys have a variety of ways of handling initial consultations.  Some, like our firm, use the initial consultation to understand your case, analyze your legal and practical issues, and advise you regarding the various options available to you.  We focus on educating our clients so they can make informed decisions about how to proceed. To do it right, this takes time.  An attorney’s skill is reviewing your matter and analyzing your situation based on the law, and creating a solution to your problems.  Much like a doctor will charge you to examine the mole on the back of your neck to determine how to treat it, an attorney may want to charge you for providing the tools of his/her trade.

Is there anything I should do to prepare for the initial consultation?

Prepare a list of questions and, if practical, a short summary of the information you want the attorney to consider.  Even before you contact the attorney, make a list of questions you want answered. That way the attorney can be sure to answer any questions you might have.

It is also important to be extremely candid with the attorney.  Every case has good facts and bad facts.  Some clients don’t want to tell the attorney all the facts, because they are concerned the attorney will be less interested in the case. If you only tell the attorney the good facts, then the attorney cannot do his/her job.  Imagine asking a doctor to give you advice about your child’s cold, but deciding not to tell the doctor that the child has been vomiting and has a fever of 103. Like your doctor, an attorney can better assist you if you tell the attorney everything.

Remember, everything you tell the attorney is confidential.

How does the attorney get paid?

That depends on your agreement with the attorney.  Attorneys will typically work on an hourly basis, a contingency basis or a flat fee basis.  There are other fee alternatives, but those are the most common.  It’s a good idea to ask the attorney up front about the fees.  Even if an attorney charges for the initial consultation, he/she may be willing to represent you on a contingency or other fee basis.

Once you’ve agreed on a fee structure, get it in writing.  Most attorneys have standard fee agreements they use, although the fee agreements will differ from firm to firm.  Read the entire fee agreement, and ask questions about anything you don’t understand.  It’s the attorney’s job to help you understand your legal questions.  Starting the relationship with questions about how the attorney will be compensated could lead to problems down the road.