Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

• The Genetic Discrimination Nondiscrimination Act (GINA) became law on Wednesday.  I highlighted the bill a few weeks ago and opined that it's not going to have a big impact on Connecticut in light of the state requirements already in place. For another recap, the Employer's Law Report has a pretty good summary here.
  
  
• A group called the Families and Work Institute released a survey on Wednesday studies the practices of U.S. employers as they relate to work-life issues.  Nolo's Employment Law Blog has the details.  Interesting factoid? "Racial and ethnic diversity at the top predicts a more work-life friendly workplace."  Other notable fact? Employees are paying more for some of their benefits.
  
  
• The New York Times had an interesting piece this week on background checks, not simply for line workers -- but for executives as well.  One "expert" provided the following guidance:
  "[The expert's] primary recommendation is to screen all potential employees, starting with their résumés. If you detect a single lie, he says, throw the résumé in the wastebasket.Be wary, too, of claims that are difficult to verify, gaps in applicants’ job histories and vague descriptions of what they did."  I've talked about the need for such checks and how Connecticut's criminal records are now available on state websites. 
  
  
• With the high price of gas, will more employers start to consider telecommuting for employees? After all, those employees with long-distance commutes are assuredly feeling the pinch.  The Pennsylvania Labor & Employment Blog has a post about some of the legal issues involved in telecommuting.  I've touched on Connecticut's approach to the issue in this post last October.
  
  
• Finally, on the human resources front, Kris Dunn over at HR Capitalist has a thought provoking piece about the interview process that many companies engage in. His theory? Perhaps to ditch the second interview and see how the candidates respond to a "real-life situation".  Given the pitfalls and the unpredictability of interviews, and the risks of hiring "duds", it's an interesting thought.
  

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With iPods becoming ubiquitous, I'm sure I'm not the only one who feels like they are listening to more music in general.  A favorite song of mine is "So Much to Say" by the Dave Matthews Band song.  (Don't try reading too much into the lyrics -- there isn't much there.)  But this week, "So Much to Say" seems an appropriate label for all the great articles relating to labor & employment law.  There's "Too Much" to write about individually, but here are a few of the posts that warrant a mention for one reason or another.  

• Kris Dunn, over at HR Capitalist, has a thought provoking post this morning about whether the paying of staff by Jay Leno is a good or bad thing for the union in the writers strike. The comments, including by yours truly, show that this is no ordinary strike. 
  
• George Lenard, over at George's Employment Blawg, has a great post today about asking whether today's job applicants are dumber.  He reports that "A recent press release from Wonderlic, Inc., reporting on a new study of company data, says applicants today aren’t as smart (lower cognitive ability) as similarly-educated applicants of yesteryear."
  
• Paul Secunda, at the Workplace Prof blog posted a thorough analysis of the transcript of the oral argument in the Supreme Court case yesterday (you can find the transcript here). In that ADEA case, one of the issues presented is whether a plaintiff-employee can present evidence of other employees who also claim that they were discriminated against.  It remains to be seen where this case will come out.
  
  Ultimately, Paul concludes:

I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don't think he has a majority on that point.

• Michelle Golden, at Golden Practices, had a good post last week about the do's and don'ts of interviewing from a legal and HR perspective. She cites to another online article and says, "I like the fact that the authors encourage getting past the presumed cause questions (not allowed) and takes the interviewer to the real reasons one is asking the questions."  Its a good reminder that even simple questions can get employers into trouble.  
  
• My post last week about whether the mere presence of pornography in the workplace was sufficient to state a claim of harassment has provoked some posts in the blogosphere -- some serious, some humorous -- that are all worth reading. Check out the posts at the Ohio Employer's Law Blog, Pennsylvania Employment Law Blog, and HR Capitalist. 
  
• And lastly, consistent with the music theme, Mark Toth at the Manpower Employment Blawg, has a post about the Best Songs about Work.  The Business Opportunities blog picks up on this theme as well here. 
  

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George Lenard, who runs the popular "Employment Blawg", has an interesting post this week about how current job seekers will have to undergo different scrutiny than perhaps the last time that they engaged in a job search.  As George notes, the biggest change is the prevalent use of background checks by employers.  George provides some useful tips to job seekers about what this means during the interview process.

For employers, some (but by no means all) will use these checks without a clear understanding of the laws that may be implicated. Indeed, some employers who do hiring infrequently, may not be aware of the extent of the development of this area of law.  This post will discuss one aspect of such compliance -- the Federal Fair Credit Reporting Act.   

As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes: 

(1) the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
(2) the company must make certain representations to the consumer reporting agency from which the report is procured; and, 
(3) the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

The first and third obligations require a bit more explanation.  What is meant by the first requirement? Typically, a clear and conspicuous disclosure-- in a stand-alone document -- in writing to the applicant that the report may be obtained for employment purposes, and then, written authorization from that applicant.

Regarding the third set of requirements, before not hiring the employee based, in whole or in part, on information in  that report, the company must provide a copy of that report and a description of the applicant's rights.  After taking an adverse action (i.e., not hiring the applicant), the company must provide further notice of the adverse action in a format that discloses, among other items, the name, address and phone number of the company that provided the background check. 

Of course, there are other state requirements that may apply, in addition, to other rules under FCRA itself.  For example, there are additional requirements for the use of "investigative consumer reports" and there are exceptions to the above rules (such as when criminal activity is suspected) that may apply. 

But for employers using background checks, alarm bells should go off when doing so.  In today's age when doing a background check appears as simple as typing in some names or social security numbers into a computer database, nothing is that simple about these checks.   If employers are not following the rules, they risk substantial liability in the future for breaking them.  The Federal Trade Commission, the government agency responsible for oversight of this law, has a good primer on the subject for employers as well. 

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