Law and the Workplace
Daniel Saperstein

Daniel Saperstein

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Class Action Stretches FCRA’s Limits to Target LinkedIn

With increasing regularity, states and localities have passed laws that limit the ability of private employers to inquire into or otherwise consider the criminal or credit histories of their prospective and current employees.  At the federal level, the Equal Employment Opportunity Commission (EEOC) has continued to pursue litigation against a number of companies on the … Continue Reading

NJ Supreme Court to Decide Whether LAD Protects Divorcing Employee

Last week, the New Jersey Supreme Court agreed to address whether the protection against marital status discrimination under the state’s Law Against Discrimination (LAD) serves to prevent an employer from discharging an employee “because of the anticipated effect of [the] employee’s imminent divorce on the workplace.”  As detailed in our monthly newsletter, the Appellate Division … Continue Reading

Connecticut Broadens Exemptions to Law Limiting Credit Checks

Connecticut has added mortgage brokers, lenders, and servicing companies to the list of “financial institutions” exempted under the state’s existing law limiting credit checks for purposes of employment.  The amendment, which took effect on October 1, allows these institutions to inquire into and otherwise consider an applicant’s or employee’s credit history in hiring and personnel … Continue Reading

FINRA Proposes Rule Strengthening Background Checks

Last month, the Financial Industry Regulatory Authority (FINRA) issued a proposed rule requiring member firms to strengthen their background investigations of applicants seeking registration. The proposed rule adopts, in large part, an old rule issued by one of FINRA’s predecessors—the National Association of Securities Dealers (NASD)—relating to background investigations.  FINRA’s proposed rule change intends to … Continue Reading

FCRA Preempts Tortious Interference Claim, Says NJ Court

The Fair Credit Reporting Act (FCRA)—a federal law that regulates the collection and use of “consumer information”—covers employers who solicit third-party vendors known as consumer reporting agencies (CRAs) to run background checks on applicants and employees.  The statute specifically contains a provision that bars state law claims against employers who “furnish information” to CRAs.  In … Continue Reading

Colorado Supreme Court Set To Decide Seminal Drug Testing Case

As reported by Joe Palazzolo of the Wall Street Journal (subscription required), Colorado’s Supreme Court recently heard arguments on whether an employer can lawfully terminate an employee for off-the-job use of medical marijuana. The case is Coats v. Dish Network, L.L.C.  The plaintiff, Brandon Coats, a quadriplegic licensed by the State of Colorado to use … Continue Reading

Four More New Jersey Cities Enact Sick Leave Laws

Four New Jersey municipalities—Passaic, Paterson, Irvington, and East Orange—recently enacted  ordinances requiring employers to provide paid sick leave to their employees. The Ordinances will take effect in January 2015, or, for employees who are covered by a collective bargaining agreement, upon expiration of the CBA.  Similar laws already have taken effect in Newark and Jersey … Continue Reading

Applicants & Employees Can Refuse to Disclose Expunged Criminal Records Under New Louisiana Law

A new Louisiana law that took effect on August 1 serves to prevent employers from inquiring into an applicant’s or employee’s expunged criminal records.  The law does provide for certain exceptions such as where the position requires supervisory or disciplinary authority over children.  Employers who violate the law are subject to contempt proceedings. As a … Continue Reading

Revocation of Ex-Convict’s Job Offer Did Not Violate State Law, Says PA Court

Pennsylvania, like many states, has restricted employer use of criminal history in hiring and other employment decisions. Under the Criminal History Record Information Act (CHRIA), Pennsylvania employers may “consider” convictions only if they directly relate to the position for which the applicant seeks employment. In a recent case—McCorkle v. Schenker Logistics, Inc., No. 1:13–CV–3077, 2014 … Continue Reading

Philadelphia Requires Reasonable Accommodation of Nursing Mothers

On September 3, Philadelphia made it unlawful for an employer to fail to reasonably accommodate the need to express breast milk, where the accommodation does not impose an undue hardship.  The new law, which is now in effect, amends the city’s fair practices ordinance.  Reasonable accommodations under the law include providing unpaid break time or … Continue Reading

Chicago Proposes “Banning the Box”

Only a few months after Illinois “banned the box” for private employers, Chicago’s city council has proposed to do the same.  “Ban the box” refers to a movement that seeks to remove the check box from job applications asking whether or not the applicant has a prior criminal history.  Like the Illinois law, Chicago’s proposal … Continue Reading

Backlash against EEOC Enforcement Initiative on Background Checks Continues

In recent years, the Equal Employment Opportunity Commission (EEOC) has taken a more aggressive position against the use of criminal history in hiring and personnel decisions.  In 2012, the EEOC issued guidance warning that criminal background checks may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil … Continue Reading

Connecticut Expands Restrictions on Employer Use of Criminal Records

A new Connecticut law taking effect October 1 amends the state’s existing statute regulating employer use of criminal records in hiring and personnel decisions. The amendment specifically prohibits employers from denying employment to a prospective employee solely because the employee had a prior conviction for which he received a “certificate of rehabilitation.”  Along these lines, … Continue Reading

CA, NJ Governors Veto “Unemployment Discrimination” Legislation, Slow National Momentum

This past month, California Governor Jerry Brown and New Jersey Governor Chris Christie vetoed bills that would have greatly limited employers from considering an applicant’s unemployment status in hiring decisions.  This is the second time that both governors have vetoed legislation addressing “unemployment discrimination” (Christie’s first veto was conditional).  A similar type of bill also … Continue Reading

NYC Council Seeks Final Rule Banning Credit Checks

On September 12, the New York City Council held a hearing on a bill (Int. 0261-2014) that would effectively prohibit employers from inquiring about or using an individual’s credit history in hiring and personnel decisions, unless required by law.  The initiative enjoys wide support among members of the Council, though Mayor Bill DeBlasio and some … Continue Reading

Delaware Latest State to Expand Protections for Pregnant Applicants and Workers

On September 9, 2014, Delaware joined a number of other states, enacting legislation to require reasonable accommodation of pregnancy, not just pregnancy disability.  Accommodations that would pose an undue hardship are not required.  The new law takes effect immediately. The Delaware law is notable because it expressly refers to lactation as being a pregnancy-related condition … Continue Reading

D.C. Mayor Signs “Ban the Box” Law

Mayor Vincent Gray has signed the Fair Criminal Record Screening Act of 2014 to prevent most employers in the District of Columbia from asking prospective employees about their criminal history on the initial job application. In “banning the box” for private employment, D.C. joins a growing list of states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island) and … Continue Reading

Minnesota Court Limits Extraterritorial Reach of State Drug Testing Law

One question that frequently arises for employers when running a background check is which state’s/city’s law applies.  In Olson v. Push, Inc., No. 14-1163 ADM/JJK, 2014 WL 4097040 (D. Minn. Aug. 19, 2014), the District of Minnesota recently held that the state’s drug testing statute did not cover an applicant who lived and submitted to … Continue Reading

New Jersey Bans the Box for Private Employers

Governor Christie has signed The Opportunity to Compete Act, which takes effect March 1, 2015 and prevents many private employers in the State of New Jersey from asking prospective employees about their criminal history on the initial job application. In “banning the box” for private employment, New Jersey joins only a handful of states (Hawaii, Illinois, … Continue Reading

Special Report: Social Media Roundup

Rhode Island, Louisiana, New Hampshire, and Oklahoma are the latest states to provide prospective and/or current employees with increased social media protections. Read this special report to learn more about the new laws and the implications for covered employers. In this issue: Rhode Island Louisiana New Hampshire Oklahoma Takeaway Read the full text of the … Continue Reading

Wall Street Journal: San Francisco Handcuffs Employers to Give Ex-Cons a Break

Businesses have a strong interest in protecting their employees and customers from criminals. Moreover, a number of federal and state laws require employers to run criminal background checks on job applicants and, in some cases, to disqualify them based on a past arrest or conviction. To see the full article in the Wall Street Journal, … Continue Reading

Latest Criminal Background Check Developments Affect San Francisco, Illinois, and Alabama Employers

Employers should be aware of the following developments across the country before running a criminal background check: San Francisco’s new “ban the box” ordinance is set to take effect next week, including the requirement that employers post and distribute a notice of rights; the Northern District of Illinois recently granted the Equal Employment Opportunity Commission’s … Continue Reading

New Louisiana Law Protects Employers From Negligent Hiring and Supervision Claims

On August 1, 2014, a new Louisiana law took effect to protect companies that hire ex-offenders who go on to cause damage or injury during the course of their employment.  The law provides that, subject to certain exceptions, an employer may not be held liable for negligent hiring or supervision solely because it hired or … Continue Reading

New Illinois “Ban the Box” Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the “Act”), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the initial job application. In “banning the box” for private employment, Illinois joins only a handful of states (Hawaii, Massachusetts, Minnesota, and Rhode … Continue Reading
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