Monday, February 25, 2019

Federal Appeals Court Issues Rare FCRA Decision (Spoiler Alert: It’s Not Good for Employers)

The practice of running background checks on prospective and current employees has become commonplace in many industries. Companies should be careful, however, to ensure that their process complies with the hyper-technical requirements of the federal law governing the use of these background checks — the Fair Credit Reporting Act (FCRA). Under the FCRA, before an employer may obtain a background check from a third party vendor for a fee, it must make a written disclosure to the subject of the background check. That written disclosure must be a stand-alone document that consists only of the statutory disclosure language. The subject of the background check must then provide written authorization for the employer to obtain a background check. Many states — including Minnesota — have their own procedural requirements, either tracking with the FCRA or potentially including add-on requirements.

Friday, February 1, 2019

Independent Contractor Test Changed Again by NLRB

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by the NLRB in 2014.

According to the NRLB, key factors involved in analyzing independent contractor status include: