Employer Law Report

Ninth Circuit holds that inclusion of state law disclosures violates the FCRA’s “stand-alone” Requirement

The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure form violates the standalone requirement. Now, in Gilberg v. California Check Cashing Stores, LLC, a panel of the 9th Circuit Court of Appeals has held that an employer’s inclusion of state law mandated requirements in the disclosure form provided to job applicants violates the standalone document requirement despite the fact that they were included in the form in an effort to assist the applicants in understanding all of their rights as it related to the background screen being obtained on them. In short, the panel was not moved by the employer’s argument that its additional disclosure of the applicable state laws “furthers rather than undermines FCRA’s purpose.” To the contrary, the panel held that “the presence of this extraneous information is as likely to confuse as it is to inform” and therefore, it does not further FCRA’s purpose. Instead, the panel noted that the only exception to the standalone document requirement is the one in the statute itself that permits the disclosure and authorization to be combined into a single document.

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NLRB overrules Obama-era precedent for independent contractor test

On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status. Continue Reading

NLRB reverses Obama board trend on expansion Of Section 7 rights

After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s  equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not return until after baggage handlers from inside the airport terminal had done the bulk of the work. That evening, one of the airline managers called Alstate to complain about subpar customer service, which ultimately resulted in the termination of Greenidge and his three coworkers. Continue Reading

Court orders plaintiff in FMLA lawsuit to produce private social media content in discovery

In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right to this discovery. In Robinson, the plaintiff, a valet attendant for the defendant employer, filed a complaint alleging race and disability discrimination under Title VII, the Americans with Disabilities Act, and in retaliation for taking medical leave under the Family and Medical Leave Act (FMLA). During the course of discovery, the employer sought and thereafter filed a motion to compel discovery from, among other sources, the plaintiff’s private social media accounts. Specifically, the employer sought discovery from the plaintiff’s Facebook account as well as Google Photo and Google location data for the limited time period that the plaintiff alleged he needed FMLA leave and was unable to work. Also, in its motion to compel, the employer relied on gym records that suggested that the plaintiff had been working out while on FMLA leave. Under the circumstances, the court granted the motion to compel discovery because the employer had demonstrated that the limited social media posts to be produced were relevant and proportional to the needs of the case to the extent that they related to the plaintiff’s activities while out of work. The court agreed with an earlier magistrate decision that the requests were relevant to:

  • The plaintiff’s alleged disability, his FMLA time, and after-acquired evidence of his potential FMLA abuse
  • His claim for emotional damages
  • His efforts to mitigate his wage loss

In reaching its conclusion, the court distinguished the employer’s tailored approach in Robinson from an earlier personal injury lawsuit before it in which the defendant sought discovery of the plaintiff’s entire Facebook page without first making a threshold showing that the plaintiff was exaggerating her injuries.

Takeaway

Too often, employers are disappointed to learn that a lawsuit filed by against them by current or former employees does not give them license to explore the plaintiffs’ private social media accounts in discovery. The Robinson decision demonstrates that in order to obtain this evidence, they will have to show first from evidence already obtained that the social media accounts from which they are seeking discovery are likely to yield evidence that directly relates to some specific aspect of the plaintiffs’ case or their own defenses. Of course, sometimes the plaintiff has left his or her social media evidence publicly available, making it discoverable with as little as a simple Google search.

Ohio statutory amendments impacting joint employment claims against franchisors will go into effect on March 20, 2019

Nationwide, many states are amending their employment laws to address the uncertainty of the joint employment doctrine under federal law, as evidenced by the apparent conflict between the recent D.C. Circuit decision in Browning-Ferris Industries of California Inc. v. National Labor Relations Board and the Board’s proposed rules on the subject. In an effort to address this uncertainty, Gov. Kasich, before leaving office in December, signed H.B. 494 into law. Effective March 20, 2019, H.B. 494 amends the definition of “employer” in several Ohio employment statutes to provide that franchisors are not the employers of their franchisees or the employees of their franchisees unless:

  • they have agreed to assume that role in writing, or
  • a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademark, brand or both.

The specific laws amended were the Ohio Minimum Fair Wage Standards Act, the Bimonthly Pay statute, the Ohio Workers’ Compensation Act and the Ohio Unemployment Compensation Act.

While the outcome of the federal joint employer doctrine controversy undoubtedly will go a long way towards determining the long term significance of the Ohio statutory amendments related to minimum wage and overtime under the Ohio Minimum Fair Wage Standards Law, the amendments may have continued vitality as it relates to the bimonthly pay, workers’ compensation and unemployment compensation laws, which do not have comparable federal counterparts. These amendments also only relate to the franchising industry and do not impact any of the numerous other scenarios in which joint employer issues may arise.

Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.Continue Reading

New tax credit rewards companies that offer paid FMLA leave in 2018 and 2019

The federal Tax Cuts and Jobs Act of 2017 contains an often-overlooked tax credit for employers that provide qualifying types of paid leave to their full- and part-time employees. The credit is available to any employer, regardless of size, if:

  • The employer provides at least 2 weeks of paid family and medical leave annually for employees who have been with the company for at least 12 months
  • The paid leave is at least 50 percent of the wages normally paid to the employee

The IRS has issued a set of frequently asked questions and a notice to help employers understand the tax credit, which is only available for wages paid in 2018 and 2019. The notice, entitled Notice 2018-71, is effective as of Sept. 24, 2018, and similarly only applies to wages paid in 2018 and 2019. Here are some of its highlights: Continue Reading

Voluntary abandonment doctrine strengthened by Ohio Supreme Court

On Sept. 27, 2018,the Ohio Supreme Court took the unusual step of overturning two prior decisions in an attempt to clarify a confusing aspect of workers’ compensation law. A long-standing tenet of workers’ compensation law, temporary total disability compensation, is intended to compensate an injured worker when they are unable to work due to a work-related injury. To be entitled to temporary total disability compensation, an injured worker must be medically unable to work and the inability to work must be caused by the work injury.

One exception to this rule, and a defense routinely used by employers, is the voluntary abandonment of employment doctrine. In essence, when relying on this defense, the employer argues the injured worker’s own actions caused his or her loss of compensation rather than the work incident and therefore they would not be entitled to compensation. Previously, the Supreme Court limited the scope of this defense by holding that if an injured worker was disabled due to the work injury at the time of the separation of employment, the injured worker remained entitled to temporary total disability compensation. Continue Reading

Bureau of Consumer Financial Protection issues revised FCRA summary of rights form

Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language on the Summary of Rights form that explains a consumer’s right to obtain a security freeze to protect against identity theft. The statutory language states that “a security freeze shall not apply to the making of a consumer report for use of the following: … (I) Any person using the information for employment, tenant, or background screening purposes.”

Nevertheless, when the Bureau of Consumer Financial Protection issued its interim final rule on Sept. 12, 2018, it indicated that employers indeed would have to provide a notice of the right to obtain a security freeze as part of the Summary of Rights. A copy of the revised form is available here. Because plaintiffs’ counsel are constantly in search of any opportunity possible to expand their ability to file class actions alleging FCRA violations, cautious employers will want to use the new form at least until the Bureau decides to shift its position or the courts force them to shift.

Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination was really a pretext for age discrimination because other, younger tellers committed the same errors yet were retained.

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