Month: December 2015

Beware of Background Check Disclosure Risks

Authored by Megan B. Caramore

Are the background check disclosure forms used as part of your hiring process exposing you to risk of litigation? Perhaps. A number of class action suits are currently pending on this issue. The Fair Credit Reporting Act (FCRA) requires that employers disclose to applicants and employees whether a consumer report may be obtained before that report is requested. The FCRA also requires that the disclosure must be in writing, clear and conspicuous, and in a document that consists solely of the disclosure. The last requirement is sometimes referred to as the “stand-alone” requirement and it forms the basis for the current litigation.

The problem is that while the FCRA specifies that written authorization from the applicant or employee may be included with the disclosure form, it does not specify what other information may be included. As such, the class action plaintiffs allege that any other information on the form renders it noncompliant with the Act. To lessen the risk of litigation avoid the following, which may be problematic:

  1. Including the disclosure within your job application forms (not a stand-alone disclosure).
  2. Including additional information within your disclosure.  For example, including liability releases, non-discrimination acknowledgements, falsification consequences, state-specific notices, explanations of how information will be gathered and used, report dispute procedures and timeframes, and even consumer reporting agency contact information may run afoul of the Act’s stand-alone requirement.

If your forms put you at risk of being pulled into litigation, exposure may be significant. In addition to the time, hassle, and attorney fees involved, the FCRA provides for statutory damages of between $100 to $1,000 for each class member provided with a non-compliant form, plus possible punitive damages. While the final results of the litigation are not yet known, review your FCRA forms now to make sure that they contain only the required disclosure and written authorization and nothing more.  If your forms do contain additional information, consider moving that extra wording to a different document altogether. Additionally, don’t assume that forms provided by a background screening company will protect you because the terms of your service contract may limit the screening company’s liability.

Call the Doctor: Executive Order Establishes New Paid Sick Leave For Federal Contractors

Authored by Ashley P. Holmes

On September 7, 2015, President Obama signed an executive order establishing paid sick leave requirements for federal contractors. Under the executive order, executive departments and agencies that contract with federal contractors will require that employees of federal contractors and lower-tier subcontractors earn at least one (1) hour of paid sick leave for every 30 hours worked. Contractors must allow employees to collect at least 56 hours of paid sick leave per year and may not require employees to secure a replacement or substitute worker as a condition of using paid sick leave. In addition, any paid sick leave that an employee accrues must carry over from one year to the next, and a contractor must reinstate any accrued sick leave if the contractor rehires an employee within 12 months after a job separation. An employee must give the contractor at least seven (7) calendar days’ oral or written notice if the leave is “foreseeable.” Otherwise, the employee must give notice “as soon as is practicable.”

Employees may use the paid sick leave for a variety of reasons, including: (i) physical or mental illness, injury, or medical condition; (ii) obtaining diagnosis, care or preventative care from a health care provider; (iii) caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or who has the equivalent of a family relationship. The executive order also allows employees to use paid sick leave for reasons relating to domestic violence and stalking, such as obtaining counseling, relocating, or pursuing legal action; the employee may also use paid sick leave to aid a relative in pursuing similar services.

The new requirements are in addition to the obligations of the Service Contract Act and the Davis-Bacon Act and will apply to all “contracts, contract-like instruments, and solicitations” issued or awarded on or after January 1, 2017.

Obviously, this executive order places several new burdens on federal contractors.  It is of the utmost importance that contractors review and revise their employment practices to ensure compliance – ideally with the assistance of legal professionals.

You can view the executive order here.

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