Employment And Labor Insight: Year In Review - Are Your Employment Procedures, Practices And Policies In Compliance?

by Stinson Leonard Street

As we enter 2013, we would like to update you on the importance of reviewing your application, background check procedures, employment policies and employee handbook for compliance with the changing laws in these areas. Considering the developments in 2012, we anticipate that, in 2013, the National Labor Relations Board (NLRB) will continue its heightened focus on employment policies and compliance with the National Labor Relations Act (NLRA), and other federal and state regulators will concentrate on the enforcement of laws governing applications and background check procedures.


In 2012, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on arrest and conviction records, which narrows the circumstances under which applicants may be excluded based on arrest or conviction records. We advise employers to amend any question on their employment application regarding criminal offenses, and their hiring procedures, to conform with the following example:

Have you ever been convicted of a criminal offense? Do not include convictions that were sealed, eradicated or expunged, or convictions that resulted in referral to a diversion program.

Saying "yes" is not a bar to employment at [COMPANY NAME]. Please provide additional information in the space below or an extra sheet, if necessary. [COMPANY NAME] will make an individualized assessment of the information provided, taking into account factors including, but not limited to, the nature of the crime, the time elapsed, the facts and circumstances surrounding conviction, the nature of the job applied for and business necessity.

Credit Checks

In 2012, a number of state legislatures considered legislation affecting an employer's ability to run credit checks on employees or applicants, indicating increased regulatory attention to this employment practice. Currently, state statutes regulate credit checks by employers in California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington. Also, the EEOC has cautioned that pre-employment inquiries into credit ratings may have a disparate impact on certain racial groups and women, in violation of Title VII.

FCRA Disclosures and Authorizations

As of January 1, 2013, employers are required to use new Fair Credit Reporting Act (FCRA) disclosures in connection with background check procedures. The responsibility for issuing certain FCRA disclosures was transferred from the Federal Trade Commission to the Consumer Financial Protection Bureau (CFPB), and the CFPB amended the disclosures to refer consumers and employers to the CFPB for assistance. Relevant to employers are the changes to the attached "Notice to Users of Consumer Reports: Obligations of Users Under the FCRA," which background check providers are required to provide to employers who procure consumer reports, and the attached "Summary of Your Rights Under the Fair Credit Reporting Act," which employers are required to provide to applicants and employees with an FCRA disclosure and authorization form when the employer obtains an investigative consumer report and with any pre-adverse action notice sent when an employer intends to rely on information contained in a background check report to make an employment decision.

Also, employers often include a release of liability on their FCRA Disclosure and Authorization forms. However, in a 2012 case, a federal district court in the District of Maryland denied the employer's motion to dismiss a lawsuit that was brought regarding its background checks, in part because the employer included a release of liability on its Disclosure and Authorization form. Due to this case, we recommend that employers include a release on a document separate from the Disclosure and Authorization form, such as the employment application. For example:

I understand that, per the separate Disclosure, Notice and Authorization of Intent to Obtain a Consumer Report, [COMPANY NAME] and/or its agents may procure a consumer report and/or an investigative consumer report in connection with my application for employment and throughout the course of my employment. I hereby release all persons, companies or other entities furnishing such information from liability and responsibility in connection herewith.

Employment Policies and Handbooks

The NLRB has recently taken an aggressive stance towards reviewing employment policies for compliance with the NLRA. The NLRB has focused on non-unionized employers and has found a variety of common policies to be unlawful, including policies related to social media, electronic communications, confidentiality, internal investigations, code of ethics, non-disparagement, employee communications with the media, and solicitation and distribution at the workplace. The NLRB is likely to continue its aggressive enforcement efforts in the upcoming year. Our group has kept up-to-date on the latest NLRB decisions and we are working proactively with our clients to ensure the legality of their policies.


Written by:

Stinson Leonard Street

Stinson Leonard Street on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.