|
Employee Background Checks Becoming More
Common |
Companies are increasingly using background checks
in place of traditional references as part of the hiring process. In
fact, about 80 percent of employers are performing some type of
screening – from simple credit checks to detailed investigations
performed by a third party.
Companies like background checks because they help
them avoid liability for hiring a bad apple. If an employee engages
in sexual harassment, workplace violence or reckless misconduct on
the job, the company can defend itself by saying it did everything
it could to make sure the employee was okay.
Companies often look for information related to
criminal records, motor vehicle information, drug and alcohol use
and sex offender registry information.
Employers must comply with the Fair Credit Reporting
Act, even if a background check is not related to credit. Job
applicants have to consent to a background check, usually by signing
an authorization form as part of an employment application.
If a company turns someone down for a job on the
basis of a consumer report, the company must tell the person and
give them a copy of the report along with a statement of their
rights under the Act. Job applicants denied a job opening have the
right under the Credit Reporting Act to challenge the accuracy of a
screening report. In that case, the third party |
|
agency has to conduct another investigation
within 30 days.
Other employment laws relate to job screening. For
example, reliance on arrest records may disproportionately affect
minorities, according to the federal government. This could support
a lawsuit based on an argument that the screening impacted
minorities unfairly.
And employers need to stay away from asking about a
person’s age, religion or race. Companies are on safer ground when
seeking information related to a specific position. For example, a
detailed credit check is appropriate for someone seeking an
accounting position.
State laws vary as to what information can be
reported, such as criminal histories, and what steps employers have
to take when conducting a background check.
|
|
Company Might Have to Allow Employee to
Work at Home |
An employee can ask to work at home part-time to
accommodate her medical condition, an appeals court ruled recently.
The company argued that allowing employees to work
at home was not required under the law.
But the court disagreed, saying the woman –
diagnosed with a polio-like condition – should be allowed to
complete some of her work as a manager at home.
The woman asked to work from her home because
overuse of her arms from driving to work risked wear and tear that
would diminish her ability to perform daily functions and live
independently. Her employer refused to set up a home |
|
office, requiring her to buy her own office
equipment. She also claimed that her supervisor left her notes on
her desk at work, requiring her to make numerous trips to the
office.
A jury awarded the woman $200,000 for emotional
distress.
The court said the employee was capable of
performing her job despite deteriorating health and that a daily
presence in the office was not essential to her work.
Also important to the court was the fact that the
company apparently allowed other employees to work at home.
|
|
Companies Cracking Down on Technology
Misuse by Workers |
A growing number of employers around the country are
cracking down on workers that misuse the Internet and e-mail,
according to a recent study.
Many companies are keeping close tabs on Internet
use by tracking content, keystrokes and time spent at the keyboard.
Some companies also store and review computer files.
Employers are concerned that electronic records can
often trip them up in litigation. They also want to monitor
productivity. |
|
Most companies notify their workers when they are
being watched, according to the study conducted by the American
Management Association and The ePolicy Institute.
Many companies have created policies on computer and
telephone use as a way to help control the risk of litigation,
security breaches and other electronic disasters.
|
|
Employer Can’t Rely on E-Mail to Enforce
Arbitration Clause |
Employers often like to resolve employment disputes
in arbitration rather than in court.
But according to a recent federal court ruling, a
company can’t rely on an e-mail sent to its workers announcing
mandatory arbitration as the new format for resolving all claims.
In that case, a man was fired due to alleged
absenteeism and tardiness. The man sued, saying he was terminated
because of a medical condition and the employer violated federal law
protecting disabled workers. |
|
The court denied the company’s request that the
man’s claim be handled in arbitration. The company failed to tell
its workers how the new arbitration policy would affect their right
to sue in court. It also didn’t tell workers that continued
employment meant acceptance of the new policy’s terms.
The company also blundered, according to the court,
by failing to require workers to acknowledge receipt of the e-mail
announcing the new policy, or to indicate that they had read and
understood it.
|
|
Family Leave Act Regs in Flux |
The federal government is considering a major
overhaul of rules related to taking time off due to family and
medical circumstances.
The Department of Labor is considering requests from
companies that it tighten regulations allowing employees to take
time off from work in short increments of time. Companies say some
workers abuse the law by taking time off for reasons other than
serious medical conditions, such as to cover chronic tardiness.
The federal law allows workers up to 12 weeks of
unpaid leave due to medical reasons, including taking time off to
care for immediate family members with serious medical conditions.
The law generally applies to companies with 50 or more employees.
Two main areas under consideration relate to what is
considered a “serious medical condition” and what increments of time
employees should be allowed for leave. |
|
Currently, federal regulations allow leave for a
“serious health condition,” which is an illness of three days or
more. Employers are asking that the time be extended to 10 days.
They’re also asking that the government clarify the types of
illnesses that are “serious.”
As for the increments of time, under the current
rules workers can take leave under the law in the smallest periods
their company uses to keep employee time.
Companies say this is difficult to track
administratively and are asking the government to raise the minimum
amount of time to a half day. They also complain that the short
leave option allows employees to falsely claim they are consistently
late for a medical reason.
Employee groups, however, say short leave protects
workers with chronic medical conditions needing necessary treatments
lasting only for short periods of time.
|
|
Company Can’t Enforce Employee Waiver of
Medical Leave Claim |
Although a woman signed an agreement waiving all
legal claims related to her job dismissal, she can still sue her
former employer for violating her right to take leave for medical
problems.
A federal appeals court recently ruled that such a
waiver is barred by federal regulations associated with the Family
and Medical Leave Act.
The employee was fired after missing a number of
workdays due to medical testing and treatments. Her company denied
her request for medical leave, |
|
and told her she was eligible for benefits
under the company’s transition plan and would get additional
payments if she signed a general release waiving her rights under
federal, state or local law.
The woman eventually sued under the Family and
Medical Leave Act despite signing the release. The court said her
lawsuit was valid because a waiver or settlement of medical leave
rights requires the approval of a court or the Department of Labor.
|
|
Worker Entitled to Accommodation Even if
She’s Merely ‘Perceived’ as Disabled |
Workers are entitled to a “reasonable accommodation”
on the job even if they are not really disabled, as long as they are
“perceived” as disabled, according to a recent federal court ruling.
In that case, a worker was hospitalized with an
embolism. She then wanted to return to work with a supplemental
oxygen device, but the employer refused and eventually replaced the
woman.
The worker sued under the Americans with
Disabilities Act and won a $50,000 jury verdict.
The company tried to get the verdict |
|
reversed on the basis that she had not proven
that she was in fact disabled. But the court said the federal law
protecting disabled workers does not distinguish between those
workers who are in reality disabled, and those who are merely
regarded as disabled.
As a result, it’s not unreasonable to accommodate
someone perceived as disabled, the court said.
Federal appeals courts around the country disagree
on this point of law. The U.S. Supreme Court may need to eventually
resolve the question.
|
|
|
This newsletter is designed to keep you
up-to-date with changes in the law. For help with these or any other
legal issues, please call our firm today.
The information in this newsletter is intended
solely for your information. It does not constitute legal advice,
and it should not be relied on without a discussion of your specific
situation with an attorney.
| |
