Have you ever had a background check conducted for an employee and then wondered if you can use the information provided for another purpose?
The Federal Trade Commission recently posted an article to its blog explaining how, in accordance with the FCRA, an employer or other user of a consumer report cannot “double dip” the information contained within a report. This means that consumer reports ordered for one reason cannot be used for another.
Employers who engage the services of a background screening company should also make sure to read the Notice to Users of Consumer Reports: Obligations of Users Under the FCRA, which explains employers obligations under the law.
Some employer obligations to remember include:
- Having a “permissible purpose” to request a consumer report from a background screening company.
- Providing notice regarding the background investigation and securing the person’s written consent.
- Adverse action notices must be sent out in the event that a negative decision is made based on the content of the consumer report.
On November 14, 2016 the United States Citizenship and Immigration Services (USCIS) released a new version of the Form I-9, Employment Eligibility Verification.
Implemented in 1986 by the Immigration Reform and Control Act, employers use Form I-9 to verify a person’s identity and eligibility to work in the U.S. Employers are required to keep an I-9 Form on file for every employee on their payroll.
Changes to the Form that employers should be aware of include:
- Section 1 now only requires “other last names used” rather than all “other names used.”
- The certification for certain foreign nationals has been streamlined and now takes less time to complete.
- Prompts have been included to ensure information is entered correctly.
- Space has been added in order to enter multiple preparers and translators.
- A supplemental page for the preparer/translator has also been added.
- There is now a dedicated area for including additional information rather than having to add it by writing in the margins.
- The instructions have been separated from the form and include specific instructions for completing each field.
Additions have also been made to make the form easier to complete electronically:
- Drop-down lists and calendars for filling in dates.
- On-screen instructions for each field as well as easy access to the full instructions.
- Checks to ensure information is entered correctly.
- A button to print the form.
- An option to clear the form and start over.
- When the form is completed and printed, a quick response code is automatically generated.
It is important for employers to review the instructions for completing the new Form I-9 before using it for hiring purposes. Employers should also continue to follow the existing storage and retention rules for all of their previously completed Forms I-9.
The deadline for employers to make the switch to the revised form for new hires is January 22, 2017. It is not necessary to issue the revised form to current employees.
For more information about USCIS and its programs, please visit uscis.gov.
“Businesses that ask a job applicant about his or her criminal history during the hiring process could be fined and forced to pay the applicant up to $500 under a new law being considered by city leaders.
A Los Angeles City Council committee backed a plan Tuesday to penalize businesses that weed out applicants based on criminal convictions.
The rules are part of a law under consideration by the council aimed at giving former convicts a better shot at obtaining employment.
The Ban the Box ordinance, approved in concept last year by the council, bans private employers with 10 or more workers from asking questions related to an applicant’s criminal history before a conditional offer of employment has been made.
Employers also have to strip criminal history questions from job applications under the proposed law. The “box” refers to “check box” indicating a conviction on an application.
Exemptions for employers in the child care or law enforcement industry are allowed under the ordinance.
Los Angeles non-profits, churches, and other groups support the law, contending it will cut jail recidivism rates by helping former convicts land jobs.
Both the state and federal governments have similar rules in place for applicants seeking public sector jobs, while San Francisco has laws that also apply to private companies.
Some Los Angeles business groups, including the Valley Industry and Commerce Association, oppose the proposed Los Angeles law.”
Originally posted by Dakota Smith of The Los Angeles Daily News. Full article at http://www.dailynews.com/government-and-politics/20160628/la-city-hall-panel-backs-fining-companies-for-asking-applicants-about-past-crimes
“The U.S. Equal Employment Opportunity Commission (EEOC) today issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.
The White House has issued a National HIV/AIDS Strategy (NHAS) for the United States. One of the steps identified by the Strategy is to reduce stigma and eliminate discrimination associated with HIV status and services. EEOC has a long history of enforcing the nondiscrimination rights of individuals with HIV infection in employment. During Fiscal Year 2014 alone, EEOC resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000.00 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations. EEOC now extends these efforts by issuing two documents that explain these rights.
We are proud to be a part of the National HIV/AIDS Strategy,” said EEOC Chair Jenny Yang. “Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”
Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. It also answers questions about the process for obtaining an accommodation; possible accommodations; the privacy rights of people who have HIV infection; the employer’s obligation to keep medical information confidential; and the role of EEOC in enforcing the rights of people with disabilities.
Helping Patients with HIV Infection Who Need Accommodations at Work explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation. It also answers questions about the types of accommodations that may be available; the ADA’s protections against employment discrimination based on having the condition or on the need for accommodation; the importance of disclosing the need for an accommodation before a problem occurs; and what to do when an employer raises safety concerns.”
Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/eeoc-issues-publications-on-the-rights-74987/
“President Obama said Monday he was directing federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective government employees about their criminal histories on job applications.
Speaking at Rutgers University in Newark, N.J., where he highlighted programs meant to ease the reentry of former inmates into society, Obama said the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.”
It’s unclear how many federal agencies would be affected by Obama’s action. Many agencies already delay asking about criminal history until later in the hiring process, but Obama is directing the Office of Personnel Management to issue guidance making that practice universal across the federal government.
“It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”
And while civil rights groups applauded the move, many had hoped for an even more sweeping executive order. The American Civil Liberties Union called the move “an important first step,” but called on him to follow up with an order that would apply not only to federal employees, but federal contractors. Obama has used 15 similar orders during his presidency to force companies doing business with the government to raise the minimum wage, adopt non-discrimination policies and grant workers paid time off.
“While the president is with us in spirit, his administration is not yet ready to make an executive order a reality,” said Wade Henderson of The Leadership Conference on Civil and Human Rights.
White House spokesman Frank Benenati said the president prefers congressional action on contractors “as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration.”
Sen. Cory Booker, D-N.J., who is sponsoring that legislation with Sen. Ron Johnson, R-Wis., said Monday that he’s “really happy to see the president continue to push the envelope” and bring attention to the issue.
But the ban-the-box effort, he said, “should be done legislatively, so that the stroke of another president’s pen can’t undo it.”
Obama highlighted offender reentry programs Monday in New Jersey as part of a nationwide tour to build support for Congress to overhaul the criminal justice system.
His first stop in Newark was a tour of Integrity House, a halfway house and drug rehabilitation center that gets 85% of its referrals from the criminal justice system. Meeting with former prison inmates who are now residents of the house, Obama said the center does “outstanding work with folks with addiction issues,” and said he hoped his visit would “highlight what is working” across the country.
Obama highlighted the story of Dquan Rosario, who served time in prison for drugs but then, at age 37, went back to school and is now an emergency medical technician in Newark. Obama said Rosario’s story shows it’s never too late for a second chance.
“There are people who have gone through tough times. They’ve made mistakes. But with a little bit of help, they can get on the right path. That is what we have to invest in, that is what we need to believe in,” Obama said.”
Originally posted by USA Today. Full article at http://www.usatoday.com/story/news/politics/2015/11/02/obama-tells-federal-agencies-ban-box-federal-job-applications/75050792/
“In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy starting January 1, 2016. AB 465 would create a new statute that prohibits employers from requiring a candidate to “waive any legal right, penalty, remedy, forum, or procedure for a violation of [the Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner… or any court or other governmental entity.” The section explicitly covers “an agreement to accept private arbitration.” The bill makes it unlawful to threaten, or retaliate or discriminate against, a person who refuses such a waiver. An employee may recover reasonable attorney’s fees incurred in enforcing rights under the new statute.
Even if the bill becomes law, certain forms of pre-employment arbitration agreements would remain enforceable, even if they cover Labor Code violations. For instance, those agreements that are knowing and truly voluntary—i.e., not made as a condition of employment—would be valid, but the employer would have the burden of proving these facts if challenged. Further, the new statute would not apply to persons registered with a self-regulatory organization under the Securities Exchange Act of 1934 or employees represented by counsel in negotiating the agreement.
AB 465 is principally backed by organized labor, with the California Labor Federation, AFL-CIO sponsoring the bill. A lobbyist for the federation cited an uptick in the instances of low-wage workers being unable to recover unpaid wages before the California Labor Commissioner due to an arbitration agreement they did not understand or know they signed. The bill is opposed by many groups, including the Civil Justice Association of California and the California Chamber of Commerce. The chamber has identified AB 465 as one of the 2015 Job Killers, citing the increased burden on the judicial system and noting likely preemption by the Federal Arbitration Act.
If AB 465 becomes law, the long-term legal impact is unclear. Not only will it prohibit pre-employment, mandatory agreements to arbitrate Labor Code violations, but it may also reach class action waivers, which the California Supreme Court recently upheld in the employment context. The substantive reach of the prohibition is also unclear, expressly covering a “legal right, penalty, forum, or procedure” for a Labor Code violation, but remaining silent on other employment-related statutes such as the Fair Employment and Housing Act (codified in the Government Code). Moreover, the statute will almost certainly be challenged under the Federal Arbitration Act, which reflects a liberal policy favoring arbitration enforceability and pre-empts state rules that disfavor arbitration. The ambiguity in breadth and pre-emption uncertainty leave employers in an unenviable position if the bill becomes law.
AB 465 (and the other employment-related bills described below) remain on Governor Brown’s desk for consideration, and we will continue to monitor and report on developments.”
Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/california-legislature-acts-to-outlaw-73929/
I. Procedural Background and Party Positions
“After investigating a gender discrimination claim against Mach Mining, the EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The EEOC sent a letter inviting Mach Mining and the claimant to participate in informal conciliation proceedings. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had failed – pursuant to the statutory mandate that conciliation discussions remain private, the evidence record did not reflect what negotiations, if any, took place in the interim. The EEOC then sued Mach Mining in federal court.
In its responsive pleadings, Mach Mining asserted, as an affirmative defense, that the EEOC had not attempted to conciliate in good faith. The EEOC responded by arguing: (1) that conciliation efforts were not subject to judicial review; and (2) that the two letters sent to Mach Mining provided sufficient proof that the EEOC had fulfilled its statutory duty to conciliate. The district court agreed with Mach Mining, holding that the adequacy of the EEOC’s conciliation efforts was subject to judicial review. The EEOC appealed, and the Seventh Circuit reversed the District Court, finding that the EEOC’s statutory obligation to conciliate was unreviewable. Mach Mining then sought review in the United States Supreme Court, andcertiorari was granted.
The parties presented unwavering and starkly opposite arguments to the Supreme Court. The EEOC’s position was that Title VII allotted complete discretion to the Commission; therefore, its conciliation efforts were not subject to judicial review. The only concession made by the EEOC was that, if the Court were to deem the conciliation process reviewable, then the EEOC’s letters to Mach Mining provide sufficient evidence of the Commission’s compliance with the statutory mandate to conciliate – as long as the EEOC issues two letters, courts have no authority to consider any other evidence regarding the conciliation process. Mach Mining, on the other hand, argued that courts should be able to employ the NLRA’s standard of “good-faith bargaining” with regard to the EEOC’s conciliation efforts, which would require courts to delve deeply into the facts surrounding each and every conciliation process.
II. The Opinion
In a unanimous opinion, authored by Justice Kagan, the Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But [the Court found] that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015). Sounds good in theory, right? To unpack this holding, one must look at each of the issues addressed by the Court and, more importantly, the issues that were not addressed.
First, the Court had to dispose of the EEOC’s argument, and Seventh Circuit’s holding, that the EEOC’s conciliation efforts were not judicially reviewable. To do so, the Court cited case law precedent that applies a “strong presumption” favoring judicial review of administrative action. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). The Court reasoned that, because the EEOC’s participation in conciliation efforts is a mandatory prerequisite to filing a lawsuit under Title VII, courts must be able to exercise some oversight in the process. As the Court stated:
Yes, [Title VII] provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission.
Mach Mining, 135 S.Ct. at 1652 (emphasis in original) (citations omitted). The Court’s view was predicated on the idea of culpability:
Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.
Id. at 1652-53.
Having determined that the EEOC’s conciliation efforts are subject to judicial review, what, then, is the scope of such review? The Court denied each side’s proposed standard. First, the Court denied the EEOC’s argument for “the most minimalist form of review imaginable,” reasoning that “a court needs more than the two bookend letters the Government proffers” in order to verify the Commission’s compliance with Title VII. Id. at 1653. Likewise, the Court rejected Mach Mining’s proposed framework, similar to that used in the NLRA, because the NLRA and Title VII serve different purposes. While Title VII is focused strictly on results – to eliminate unlawful discrimination in the workplace – the NLRA aims to create a “sphere of bargaining” in which both sides are obligated to bargain fairly. Id. at 1654. To treat Title VII conciliation like labor negotiations, the Court held, would be to adopt rules that “do not properly apply to a law that treats the conciliation process not as end in itself, but only as a tool to redress workplace discrimination.”Id. The Court additionally noted that Mach Mining’s proposed scope of judicial review would undermine the EEOC’s discretion and confidentiality mandated by Title VII. See id. at 1655.
The Court held that the appropriate scope of review enforces Title VII’s requirements, “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further.” Id. at 1653. As the Court explains:
[Title VII] demands…that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an ‘endeavor’ to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute.
Id. at 1655-56. To show, then, that the EEOC did not comply with Title VII during conciliation, an employer must provide credible evidence (typically by sworn affidavit) indicating that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” which would then allow a court to conduct the necessary factual inquiry to decide the dispute.
III. Lingering Issues
So, the Court has defined Title VII conciliation as a tool to remedy workplace discrimination (nothing new there). What is interesting, however, is that the Court inferentially mandated that the remedy of the allegedly discriminatory practice be the beacon of conciliation. How does that work? Let’s say, for example, that Mach Mining had said during conciliation, “Okay, EEOC, we know there is a problem. We will hire the claimant, pay her the wages she would have earned up to her first day of work and adjust our hiring practices and facilities accordingly.” By the Court’s ruling, this would seem to be a sufficient offer to remedy the alleged discrimination. But, what if the EEOC rejects this proposal? What if the EEOC wants to make an example out of Mach Mining? Can they do that? Sure they can. The Court does not disturb the extensive discretion allotted to the EEOC in determining a satisfactory settlement or in determining its motive for accepting or rejecting settlement. As you can see, although the Court’s holding has established the allowance of judicial review, it does not allow courts to interpret the rationality of the EEOC’s positions. Courts may only determine whether the Commission went through the proper procedures and put the employer on notice of the claim. For a results-oriented statute, as the Court described Title VII, this scope of judicial review does not seem to facilitate the results that Title VII theoretically endeavors to achieve. ”
Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/us-supreme-court-holds-eeoc-conciliation-efforts-are-subject-to-limited-judicial-rev
“The Supreme Court on Friday ruled that same-sex couples have a constitutional right to marry, meaning that same-sex marriages must be recognized nationwide. The ruling will have vast implications for employers, which until now have been operating under a patchwork of different state and federal laws governing the legal and tax treatment of same-sex unions.
Here’s what businesses should keep in mind as they navigate the new landscape.
If an employer offers spousal health-insurance benefits, do they need to offer them to all married employees, gay or straight?
In general, yes.
Companies that offer spousal health benefits and use a separate insurance company to fund their benefits will now be required to cover both gay and straight spouses. “Based on the court’s ruling today, there is simply one type of spouse,” says Todd Solomon, a law partner in the employee-benefits practice group at McDermott Will & Emery in Chicago, who has been tracking same-sex employee benefits for nearly two decades.
But companies that are self-insured, which means they assume the insurance risks for their own employees, a common practice among large companies, aren’t under the same legal constraints. “There is technically no legal requirement that a self-insured company has to include a same-sex spouse,” Mr. Solomon says. As a result, self insurance “is where we are going to see a lot of activity and a lot of litigation.”
Companies should think twice about self-insuring but denying benefits to gay spouses, because they will be vulnerable to discrimination suits, he says.
What if an employer has a religious objection to gay marriage?
They have limited options.
Companies could choose not to offer benefits to spouses altogether. Or they could self-insure and attempt to offer benefits to only straight spouses, but they run a high risk of discrimination suits, Mr. Solomon says.
Now that same-sex marriage is legal, will it add a lot of people to employers’ benefits plans? Will this be expensive for employers?
It could, but it depends on what type of plan a company already had.
If a company already covered unmarried same-sex domestic partners, it could be cheaper, because covering spouses doesn’t have negative tax implications and is easier to administer than most domestic partnership benefits, Mr. Solomon says.
But if a company only offered spousal benefits, the ruling will add new couples that previously were not allowed to marry.
Will the Supreme Court ruling lead to fewer employers offering spousal benefits?
Yes – that’s been the trend, and the ruling might exacerbate it.
Employers have been cutting spousal benefits to save money, either dropping spousal coverage or imposing surcharges on spouses who can obtain health insurance elsewhere. A survey from consulting firm Mercer of over 1,100 large employers found that 17% either excluded spouses with other coverage available or imposed a surcharge in 2014, compared with 12% in 2012.
The Supreme Court ruling might spur some employers who were already inclined to cut spousal benefits to do so, Mr. Solomon says.
What are the tax implications?
It equalizes the tax treatment of gay and straight married couples.
Until today’s ruling, there were a patchwork of state and federal tax laws governing same-sex couples. Employers, depending on the state, sometimes faced additional payroll taxes for same-sex employees, and workers sometimes faced additional income taxes.
Now, for both federal and state tax purposes, companies and employees will not face different tax treatment for gay and straight married couples. That will make benefits easier for companies to administer, Mr. Solomon says.
What does this mean for domestic partnership benefits?
This is a particularly complicated issue for employers.
Over the past decade, a growing number of companies offered “domestic partnership” coverage for gay employees and their partners as a way to provide equal benefits for couples who couldn’t legally wed. Others companies offer coverage more broadly to unmarried domestic partners, regardless of sexual orientation, recognizing that some employees simply prefer not to marry.
Companies that offer unmarried partnership benefits to both gay and straight couples will likely continue to do so.
But companies that offer partnership benefits just to gay couples may begin to phase them out, because now all their employees can legally marry. Offering domestic partnership benefits just to gay couples but not straight ones might make firms vulnerable to reverse discrimination lawsuits, lawyers say.
On the other hand, firms may choose to keep domestic partnership benefits to help protect gay employees from discrimination. The majority of U.S. states lack anti-discrimination protection for gay employees, so workers can be fired for their sexuality. Because marriage certificates are public, forcing employees to get married for spousal benefits may end up “outing” an employee, while domestic partnerships are typically private matters, gay advocates say.”
Originally posted by The Wall Street Journal. Article can be found at http://blogs.wsj.com/atwork/2015/06/26/what-the-supreme-court-gay-marriage-ruling-means-for-employers/
Mega Group Online will be closed on Monday, May 25th in observance of Memorial Day. We will resume normal operating hours on Tuesday, May 26th.
Have a safe and happy holiday!
“On Thursday, the long-anticipated “employer mandate” kicks in, meaning businesses with 50 or more employees need to start offering their workers health insurance plans, if they’re not doing so already.
Well, for the most part. Nothing is ever simple when it comes to health reform, especially in the group market. Employers with between 50 and 100 full-time workers may be able to postpone the mandate if they meet certain criteria.
Also, the “pay or play” mandate won’t begin on Jan. 1, 2016 for mid-size employers with non-calendar year-based plans, said Sarah Friend, consultant at The Partners Group. They won’t be subject to the mandate until the first day of the plan year in 2016.
The employer mandate was originally schedule to go into effect in January 2014, but it was pushed back a year, after business groups raised a hue and cry over the complexity of the requirements.
Now the deadline is looming. Employers with 100 or more workers must start providing health benefits to at least 70 percent of their full-time employees starting Jan. 1 (and 95 percent in 2016) to avoid a “sledgehammer penalty.”
However, they may still be at risk of “tack hammer” penalties if they don’t offer affordable minimum essential coverage to all their full-timers if an employee subsequently gets federally subsidized insurance on the public exchange.
Employers who don’t offer insurance will be …”
Originally poster by Biz Journal. Full article can be found at http://www.bizjournals.com/portland/blog/health-care-inc/2014/12/remember-that-employer-mandate-it-kicks-in-this.html