Tuesday, May 16, 2017

FTC Advises Simplicity for Background Check Disclosure and Authorization Form

On April 28, 2017, the Federal Trade Commission (FTC) published a post on its business blog advising employers to keep it simple when it comes to employment background check disclosure and authorization forms. While the blog post is not legally binding, it provides some useful guidance on how to comply with federal background check requirements.

Employment background checks done by an outside vendor for a fee are considered “consumer reports” under the federal Fair Credit Reporting Act (FCRA). Pursuant to FCRA, employers are required to make a specific written disclosure to prospective and current employees and obtain their written authorization before obtaining a background check for employment purposes. Against the backdrop of a growing number of lawsuits around what the FCRA statute provides that disclosure and authorization forms may contain, the FTC’s blog post clarifies that the disclosure and authorization may be in a single document as long as clear and understandable wording is used. The FTC also advises keeping the form simple, however, and excluding extraneous information. The following are examples of what the FTC blog post states should not be in a combined disclosure and authorization form:

Friday, May 5, 2017

U.S. House Passes New Overtime Bill Aimed at Allowing “Comp” Time in the Private Sector

While most of the nation has been focused on the potential repeal of the Affordable Care Act, the U.S. House of Representatives passed a bill this week that could, depending on its progression, drastically affect overtime pay practices in the private sector. The bill, dubbed the “Working Families Flexibility Act,” would allow private employers to offer paid time off instead of overtime pay to compensate non-exempt workers for overtime hours. Public employers already have the legal right to offer such “comp” time as a form of overtime pay, but private employers do not.

Tuesday, May 2, 2017

New Labor Secretary Confirmed, DOL to Make Decisions Soon?

On Thursday of last week, the U.S. Senate confirmed Alexander Acosta as the 27th Secretary of Labor, filling the final open seat in President Donald Trump’s cabinet. With its secretary in place, the U.S. Department of Labor (DOL) will now be able to move forward with decisions on two major rule-making issues.

The most widely watched decision to be made by the DOL is whether to defend or abandon the Obama Administration’s FLSA rule that would, if effective, significantly increase the minimum salary required for “white collar” exempt employees. As we reported earlier, that rule was blocked by a federal judge in November 2016. Under the Obama administration, the DOL appealed this ruling. Earlier this month, though, the DOL requested and obtained a third extension, until June 30, to decide whether it will defend the rule or abandon it under the new Trump administration.

Friday, April 21, 2017

What Happened to the New Federal Overtime Rules? They Are On Hold With An Uncertain Future.

As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOL’s request, but after the election of President Trump, the DOL asked the Fifth Circuit to delay the case by extending the deadline for the DOL to file an appellate reply brief. The Fifth Circuit granted that request and extended the deadline to file the brief to March 2, 2017. In February 2017, the DOL asked for an additional 60 days, until May 1, 2017, to file its brief “to allow incoming leadership personnel adequate time to consider the issues.” The Fifth Circuit granted this unopposed request.

Friday, April 14, 2017

Status Update - Minneapolis and St. Paul Sick and Safe Time Ordinances

A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the injunction will apply to both the Minneapolis and St. Paul ordinances until a final decision is rendered on the appeal. Furthermore, legislation is advancing through the Minnesota legislature that would preempt local employment laws like these ordinances.

Monday, April 10, 2017

Trial Court Rulings on EEOC Subpoenas Are Subject to Deferential Review

Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOC’s investigatory powers.

The Supreme Court’s ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLane’s termination of Damiana Ochoa for her failure to pass a mandatory physical abilities test upon her return from maternity leave. Ochoa subsequently filed a charge of sex discrimination with the EEOC. As part of its investigation, the EEOC asked McLane to produce information regarding the physical abilities test and employees who had been asked to take the test. In responding, McLane provided de-identified information about the requested employees’ gender, position, test score, and the reason each employee had been asked to take the test. McLane refused, however, to provide so-called “pedigree information,” e.g. the names, social security numbers, addresses, and telephone numbers of its employees. In response, the EEOC expanded the scope of its requests to McLane’s nationwide operations and subpoenaed McLane for the pedigree information. After McLane again refused to provide the requested pedigree information, maintaining the request was overbroad and unduly burdensome, the EEOC filed suit in an Arizona-based federal district court seeking enforcement of its subpoena.

Wednesday, April 5, 2017

President Trump Blocks Federal Contractor Blacklisting Rule


Last week, President Trump signed four bills passed by Congress under the Congressional Review Act. The effect of each bill is to roll back regulatory actions adopted in the late days of the Obama administration. Of particular interest to employers who are federal contractors, one of the bills permanently blocks implementation of the “Blacklisting Rule,” otherwise known as the Fair Pay and Safe Workplaces Order, which was designed to bar companies with serious or repeated employment and labor law violations from receiving federal contracts and to address wage theft and other pay violations, including gender pay equity issues. We have previously written about the “Blacklisting” Executive Order (EO 13673) and its implementation rules here and here.

The Blacklisting Rule originated with the Executive Order signed by President Obama in 2014. The final rule and guidance implementing the Order were published in the Federal Register last August. The rule would have required federal contractors to self-report to various federal agencies recent violations --- and alleged (non-final and non-adjudicated) violations --- of labor and employment laws under fourteen federal employment and labor-related statutes and executive orders when bidding on a new or renewed federal contract worth at least $500,000. In addition, the Rule provided that employers with reported violations could face being barred from federal contracting or being required to enter into labor compliance agreements based on their violations and alleged violations.