Employment Law: What You Don’t Know Can Hurt You

By Kristen Harris

Legal and legislative issues around human resources, hiring and employment are constantly changing. I recently attended the American Staffing Association’s Staffing Law Conference or, as I affectionately refer to it, the “How to Not Get Sued” conference. It’s important for us to stay on top of these issues to protect ourselves, our clients and our talent, and attending this conference is one of the ways we do that.

Knowledge is power, so we want to share the top issues that may be of concern to our clients. Please keep in mind that we are not attorneys, and are only providing this as an informational resource. If you have questions or concerns about any of these issues, please consult with your legal counsel. Top Five Employment Law Issues:

Background Checks – Disclosure

While it’s common for companies to use background checks as part of their hiring process, there are two current issues surrounding background checks. First, ensure that your background check disclosure and authorization documents are compliant with Fair Credit Reporting Act requirements. There is an uptick in litigation claiming that candidates were asked to sign disclosures with “extraneous” information, including the authorization, violating the requirement that the disclosure be a standalone document. Have an attorney review your forms, and re-review annually as what is acceptable may change based on litigation.

Background Checks – Adverse Action

The FCRA requires a two-step process employers must follow when taking adverse action based on a background check. There are now additional requirements that employers must follow, generally at the municipal level, around informing the person of the reason they are not qualified and how that reason is job-related. Requirements related to adverse action have recently been put in place in San Francisco, Seattle, Maryland counties, Chicago and New York. Check with your attorney on whether there are any state or municipal requirements in your location.

Ban the Box

Gaining traction over the past few years, there are now ‘Ban the Box’ laws in 25 states and several additional municipalities. Generally, these laws prohibit having a checkbox on an employment application asking if the applicant has ever been arrested or convicted of a crime. Employers are not prohibited from asking about a criminal background, but these laws are specific about when you can ask (and when you can’t). Every statute has specific rules and penalties; consult your attorney for specifics.

EEOC Enforcement Guidance

The Equal Employment Opportunity Commission released consolidated enforcement guidance regarding the use of arrest or conviction reports in employment decisions. The goal of this guidance is to avoid disparate impact on minorities, even when following consistent screening practices. The overall consideration is whether the reason a person has been denied employment is related to the job or is a business necessity. Items of consideration are the nature of the crime, the time elapsed, whether there was a conviction or just an arrest, and the nature of the job— whether there is a link between the criminal record and the essential functions of the job. Consult your attorney and guidance documents available from the EEOC.

Data Breaches

This speaker told a cautionary tale about data breaches…“You’ve either had a data breach, or are going to have one. Or have had one and don’t know it.” Yikes! The point being, in our technology-driven world, data breaches can and will happen. It’s big news when a company is hacked by an outsider, but a lot of breaches happen due to mistakes. Something as simple as sending certain information via email to the wrong recipient could be considered a breach and trigger notification requirements. Train your team about the risks and common scams, and put processes in place to help protect your data, such as restricting user access to only what is necessary for the job and frequent forced password changes. But also know your state’s requirements on notification in the event of a data breach, and have a plan in place. It’s like insurance…you hope you never need it, but if you do, you’ll sure be glad you have it.

The best way to protect yourself is to stay informed and proactive. Review policies, ask questions, and resolve concerns before they become an issue.

Snapshot we took at the 2017 American Staffing Association’s Staffing Law Conference.

Snapshot we took at the 2017 American Staffing Association’s Staffing Law Conference.

If you are a Portfolio Creative client and have questions about these topics, or anything else related to our dual responsibilities of hiring and employing talent, please contact us at HR@portfoliocreative.com.

If you are not a client and would like more information on how these topics may apply to your creative staffing or recruiting processes, contact us at contact@portfoliocreative.com

For more information related to hiring, staffing and employment, the American Staffing Association has valuable resources for both employers and employees.