By Matthew T. Deffebach and Modinat “Abby” Kotun
Five Hot Topics Employers and Their Lawyers Need to Know I t was a busy year in 2014 in the area of labor and employment law, and 2015 appears to hold more of the same. Enforcement is up on seemingly every front. For example, the Equal Employment Opportunity Commission (“EEOC”) and private litigants are aggressively attempting to enforce background check laws and regulations. The EEOC has also set its sights on pregnancy discrimination and blanket policies regarding maximum leave. Additionally, the National Labor Relations Board (“NLRB”) has a full complement of Senate-confirmed members and, in turn, is geared up to implement its agenda of increased significance in non-union workplaces. Furthermore, several regu-
latory agencies are responding to the new-age “fissured” workplace, with its increased number of temporary workers and layers of separation between a host employer and those working for that employer. This upward trend in enforcement should only continue to accelerate into 2015. Meanwhile, Apple, Nike, Fitbit and a host of other manufacturers are releasing technologies that change how employees interact with the world and their employers. All of these issues are included in our top five labor and employment law issues to watch in 2015. I. Background Checks Under the Fair Credit Reporting Act Several recent class actions have been filed regarding background checks that are purportedly not in compliance with the Fair Credit Reporting Act (“FCRA”).1 Both the Federal Trade Commission and private litigants may seek to enforce the FCRA provisions. The FCRA imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit reports, criminal record checks or social-media screenings. The applicable regulations require an employer who uses a third party to obtain information about the character and general reputation of an applicant to, among other things: (1) advise an applicant in writing that a background check will be conducted through a third-party agency; (2) procure the applicant’s written authorization to obtain the records;2 and (3) notify the applicant that the results will not automatically result in disqualification from employment.3 These provisions apply to current employees as well. If an employer contemplates taking an adverse employment action and the background report was a factor, then the employer must, before taking the action, provide the applicant a copy of his or her consumer report and the FTC’s “A Summary of Your Rights Under the Fair Credit Reporting Act” document.4 After waiting a reasonable period of time to allow the applicant to discuss the report