The Fair Credit Reporting Act Needs Your Respect

By Kathleen J. Jennings (kjj@wimlaw.com)

The Fair Credit Reporting Act (FCRA) is one of those laws that often fails to get the respect it deserves. Just the sound of it—it seems to apply to credit reports, so why would an employer need to worry about it? Because the FCRA can also apply to applicant and employee background checks.

A recent decision from a federal court in New York shows us the potential legal consequences of failing to comply with the FCRA. In Garcia v. Execu , S.D.N.Y., No. 17-cv-9401, 2/19/19, Mr. Garcia was terminated on the second day of work because a criminal background check showed that he had open criminal charges. Mr. Garcia said the charges had been dismissed. His termination stood.

So Mr. Garcia filed a class action against the company that hired and fired him, alleging that it violated the FCRA by failing to provide him a copy of his consumer credit report or a written description of his FCRA rights before taking an adverse employment action against him based on the report. The federal district court denied the employer’s motion to dismiss the class allegations. Now the company must defend a class action simply because it failed to provide a copy of Mr. Garcia’s background check to him. This is an expensive lesson for that company.

Here’s what employers need to know about the FCRA: when a company runs background checks through a company in the business of compiling background information, it must comply with the FCRA. Specifically, the FCRA requires the following before the company seeks the background check:

  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • won’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Additionally, when taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has the following additional requirements:

  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

(By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.)

  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

DOL Issues New Enforcement Rules on Tipped Employees

by Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Department of Labor (DOL) announced new enforcement rules for investigating businesses for potentially improperly paying food servers and other tipped workers. Specifically, Field Assistance Bulletin (FAB) No. 2019-2 explains that, consistent with WHD Opinion Letter FLSA2018-27 (Nov. 8, 2018), the Wage and Hour Division (WHD) will no longer prohibit an employer from taking a tip credit based on the amount of time an employee spends performing duties related to a tip-producing occupation that are performed contemporaneously with direct customer-service duties or for a reasonable time immediately before or after performing such direct-service duties

Under the revised FOH 30d00(f), WHD staff will determine whether a tipped employee’s non-tipped duties are related to the tipped occupation by using the following principles:

• Non-tipped duties listed as examples in 29 C.F.R. § 531.56(e), and non-tipped duties listed as core or supplemental for the appropriate tip-producing occupation in the Tasks section of the Details report in the Occupational Information Network (O*NET) [https://www.onetonline.org/], are related duties.

• An employer may take a tip credit for any amount of time that an employee spends on related, non-tipped duties performed contemporaneously with the tipped duties—or for a reasonable time immediately before or after performing the tipped duties—regardless whether those duties involve direct customer service.

• Employers may not take a tip credit for time spent performing any tasks that are not contained in 29 C.F.R. 531.56(e), or in the O*NET task list for the employee’s tipped occupation, or—for a new occupation without an O*NET description—in the O*NET task list for a similar occupation. Note, however, that some of the time that a tipped employee spends performing these tasks—which are unrelated to the employee’s tipped occupation—may be subject to the de minimis rule in 29 C.F.R. § 785.47.

Employers remain prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit under the FLSA. In addition, employers electing to use the tip credit provision must ensure tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined. If an employee’s tips combined with the employee’s direct (or cash) wages do not equal the minimum hourly wage of $7.25 per hour, the employer must continue to make up the difference.

The Field Assistance Bulleting states that WHD staff should apply the new enforcement rules in investigations involving non-tipped duties performed by tipped employees on or after November 8,2018. As a matter of enforcement policy, WHD staff should also follow the revised guidance in FOH 30d00(f) in any open or new investigation concerning work performed prior to the issuance of WHD Opinion Letter FLSA2018-27 on November 8, 2018.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

When Love is in the Air At Work

By Kathleen J. Jennings kjj@wimlaw.com)

Happy Valentine’s Day! This holiday is good time for companies to check their policies on workplace romance and see how they are working.

What are the essential elements of a workplace romance policy?

First, transparency. Workplace romance is going to happen, and the employer can better manage workplace relationships when it knows they exist. A good policy will require employees, particularly upper managers, to disclose romantic relationships with other employees. Why is this any of the company’s business? Because the company needs to ensure that someone is not in the supervisory chain of command of an employee he or she is dating. When an employee has authority over an employee that she or she is dating, that differential in power may be portrayed as sexual harassment when the relationship fails. There may also be risk of disclosure of company confidential information to a subordinate or employee who is not authorized to receive the information during “pillow talk.”.

Because transparency is important, there should be real consequences for employees who fail to report workplace relationships. For example, it has been reported recently that Bridgewater Associates, the $160 billion investment, fired a senior manager for failing to disclose a relationship with a colleague in accordance with company policy.

Second, the policy should make it clear it is not acceptable for a supervisor to date a subordinate employee over whom he or she has authority.

Third, the policy should remind employees who are dating that their behavior at work should always remain professional. No PDA in the workplace, please. Also—no hanging around your boo’s office all day long.

Fourth, the policy should also remind employees of the company’s policy against sexual harassment, and that they may report conduct that they consider to be unwanted and inappropriate.

Consider this: some estimates suggest that 70% of workers have had an office romance, with as many as 25-50% turn into marriage (as cited in Wilson, 2015). Employers cannot prevent romance in the workplace, but they can manage it so that it does not undermine employee morale and productivity.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Up in Smoke: The Impact of Legalized Marijuana on Drug Testing in the Workplace

By Kathleen Jennings (kjj@wimlaw.com)

As marijuana becomes legalized across the country, employers are faced with legal and practical issues arising out of the use of marijuana by workers and applicants. Thirty-two states and Washington, D.C., now allow medical marijuana, and 10 states and Washington, D.C. have legalized recreational use.

Employers doing business in states that allow medical marijuana must be aware of the legal protections those laws provide to persons who are using medical marijuana. For example, a Delaware state court recently allowed a former Kraft Heinz Foods Co. employee to move forward with his lawsuit alleging the company violated the state’s medical marijuana law by terminating him for a positive drug test. In 2017, a Rhode Island state court ruled that a fabrics manufacturer could not refuse to hire a paid intern who legally used medical cannabis, even though she could not pass a drug test. And in 2018, a federal court in Connecticut ruled that the state’s medical marijuana law prohibited a health-care company from rejecting a job applicant who failed a pre-employment drug test.

Many state laws that allow the use of medical marijuana also contain anti-discrimination protections specifically for medical marijuana patients. Thus, it is important to know the applicable laws in the jurisdiction(s) where your company does business.

As more states and municipalities legalize marijuana for recreational use, employers face challenges in hiring applicants who can pass drug tests that include screening for THC. In fact, in an effort to increase the applicant pool, some employers have removed THC from the list of drugs that are the subject of pre-employment testing. [Employers who are required to follow DOT drug testing procedures must still test for THC]. However, those employers may still test for the presence of THC in post-accident testing and testing for cause. Note that one of the challenges in testing for the presence of THC is the fact that it metabolizes much more slowly than many other legal and illegal drugs, so it is harder to show a cause and effect between the presence of THC in an employee’s urine and a workplace accident.

If an employer reasonably suspects that an employee is under the influence of marijuana while working, it is important to document any indications of recent drug use in the employee’s physical appearance, demeanor, and—let’s face it—smell, to support a decision to require the employee to submit to a drug test for cause.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Recession-Proofing Your Employment Practices

By Christopher Adams (cda@wimlaw.com) and Elizabeth Dorminey (ekd@wimlaw.com)

No one can predict where the U.S. economy will be a year from now, but signs point to a slow-down in both the U.S. and global economy. If the U.S. experiences a recession similar to the 2007 to 2009 period, we can expect a significant contraction in GDP, and more specifically, a decline in employment. This is relevant because employment-related litigation often is counter-cyclical: it goes up when the economy goes down. Laid-off and terminated workers have more incentive to sue when they can’t find new jobs right away. Lay-offs can give creative plaintiffs’ attorneys insight into possible systemic problems which can serve as vehicles for class or collective actions.

What can an employer do now to insulate itself from these recession-related risks? Here are a few ideas:

l    Update your Employee Handbook. Too often, employers have policies and procedures set forth in their Handbooks and internal guidelines that they do not follow themselves. If you no longer follow a particular policy or process, take it out of your Handbook, particularly if the policy or process involves employee discipline, payroll practices, leave process and/or employee terminations. In most states a handbook isn’t legally binding, but it’s not helpful to have policies that aren’t practiced.

l    Audit your own records. Make certain that your internal data collection process is consistent, particularly across HR database systems. Don’t be the employer who sent a COBRA notice to the wrong address but sent the letter of termination and Separation Notice to the right one. If you use multiple database systems, make sure they communicate with each other to avoid such pitfalls.

l    Make sure your notices are up to date. An incorrect COBRA or FMLA notice can expose an employer to statutory penalties. Are yours up-to-date? A surprising number of employers never updated their FMLA notices and procedures after the 2009 regulation changes. Are your COBRA notices correct? The last several years have seen a significant increase in COBRA class action litigation related to faulty COBRA notices.

l    Update ERISA-governed benefit plans. Will your benefit plans meet the needs of a workforce that might need greater access to funds due to economic stress? Do you allow distributions upon termination of employment? (There are good arguments for and against allowing such distributions.) Do you allow for loans and/or hardship withdrawals? The IRS has proposed changes to the hardship distribution rules – stay tuned. Also, have your disability-related plans been updated to reflect the 2018 DOL regulatory changes?

l    Be aware of “disparate impact” claims. “Disparate impact” refers to a statistically significant adverse impact on some protected group of a facially neutral policy or practice. If you must lay off employees, check the demographics to be sure the affected employees aren’t predominantly over 40, or female, African-American, or otherwise members of a protected group.

l    Build a plan for unemployment claims. Do you have in place a procedure for responding to your State’s unemployment compensation hearing process? These proceedings can be a goldmine for a plaintiffs’ attorneys. An ill-prepared supervisor or HR representative testifies under oath, and what they say can be turned against the employer.

l    Watch out for WARN. In a worse-case scenario of a mass layoff or facility closing, remember that the Worker Adjustment and Retraining Notification Act (WARN) may apply, requiring advance notice of certain mass layoffs or closings.

l    Stay out of court by choosing arbitration. Consider requiring new or existing employees to sign an arbitration agreement, waiver of class/collective participation, choice of laws, and/or choice of forum agreements. Recent court decisions have upheld such agreements, allowing confidential resolution of individual claims instead of wholesale litigation. This is a complex issue, and no one choice is correct for every employer, but such agreements can help control future legal claims by terminated workers.

As Ben Franklin so famously put it, “an ounce of prevention is worth a pound of cure.” Start recession-proofing your employment policies and practices today.

 

Christopher Adams is a paralegal and a member of the Wage and Hour practice team at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. He can be reached at (404) 365-0900 or cda@wimlaw.com.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

You Might Be a Redneck If—You Believe You Were Retaliated Against for Complaining About Being Called a Redneck

By Kathleen J. Jennings (kjj@wimlaw.com)

Those of a us of a certain age remember comedian Jeff Foxworthy’s routine about “You Might Be A Redneck If….” Now a case out of Georgia cautions us that if an employee complains that another employee has called him a redneck/hillbilly, the employer may need to take that complaint seriously. [Bland v. Sam’s East, Inc. , M.D. Ga., No. 4:17-CV-190 (CDL), 1/9/19 ].

Joshua Bland, a white tire technician employed by Sam’s Club, sued his employer claiming, among other things, that he was terminated for complaining to his supervisor that another employee, Edgar Cornell Robinson, who is African-American, called him a “dumb redneck/hillbilly” during a very heated argument at work but was not disciplined for doing so.

When Bland and Robinson were scheduled to work together a couple of days after their argument, Bland was not happy and spoke with their supervisor. Bland argued that he felt Robinson should have been disciplined for calling him a redneck/hillbilly because Bland would have been fired immediately if he had used the “N word” during his confrontation with Robinson. (Whether those two different statements are, in fact, equivalent, is an argument for another day). The employer claimed that during this conversation, Bland acted aggressively toward his supervisor and was rude and disrespectful, and Bland was terminated the next day. Bland claims otherwise; he alleged that he was calm and respectful. This set up a dispute of material facts that caused the judge to deny summary judgment to the employer.

A jury will now decide whether Bland was terminated for his aggressive behavior toward his supervisor or because he complained about what he perceived as race-based favoritism toward Robinson.

The takeaway: When an employee makes a complaint of discrimination or harassment, he or she is protected from retaliation regardless of whether the complaint itself has any merit. So here, Bland just had to show that had a good faith, reasonable belief that he was complaining about discrimination when he complained that Robinson was not disciplined for calling him a “dumb redneck/hillbilly,” and Bland was then protected from retaliation because he made that complaint. Therefore, an employer has to be extra cautious when taking any disciplinary action that is close in time to a complaint.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Happy New Year and happy annual minimum wage increases!

black calculator near ballpoint pen on white printed paper
Photo by Pixabay on Pexels.com

By Chris Adams (cda@wimlaw.com)

Twenty-one states and some thirty-nine municipalities are increasing their minimum wage effective January 1, 2019, or later in 2019. At present, twenty-nine states and approximately fifty municipalities have minimum wage requirements that differ from (and exceed) the federal Fair Labor Standards Act (FLSA). This continues the Balkanization of employment law in the United States, a trend that is almost guaranteed to exacerbate gridlock in Washington and State capitols and fuel wage and hour lawsuits everywhere, in this author’s opinion.
In the southeastern U.S., only Florida has minimum wage requirements that exceed the Federal requirements. This year the state minimum wage in Florida will be $8.46 per hour. Note that some states and municipalities have annual increases that occur on days other than the first of the year (with July 1 or July 31 being common). Others have increases mathematically linked to inflation.
The real take-away isn’t so much a focus on differing minimum wages as the broader involvement by states and municipalities in a broad array of employment-related issues: wage rates and calculation methods, such as different rules for tip credits or allowable deductions, wage notice rules, final payment requirements, leave laws, prohibitions of asking past salary information, “ban the box” laws (prohibiting asking about criminal convictions), and so on. Some states, like California, do not recognize the FLSA’s exemption from overtime for agriculture: others, like Vermont, use the FLSA minimum wage for agriculture and apply the higher State minimum wage to non-agricultural workers.
Bottom line: All employers, and especially those with multi-state operations, should pay attention to State and local laws that affect your employment relationships and liability.

Chris Adams is a paralegal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. He can be contacted at cda@wimlaw.com.

©2019 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney or employee.