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Posts from January 2013.

Credit Report

Employers choosing to utilize the consumer report or “credit report” as a method of evaluating potential employees face a myriad of legal pitfalls.   Both the Fair Credit Reporting Act and Title VII of the Civil Rights Act of 1964 provide guidelines employers should follow to avoid potential legal liability. 

The usage of consumer reports as a pre-employment tool is disfavored.  While the practice itself is legal, the Equal Employment Opportunity Commission (EEOC) is of the opinion that the practice of inquiring into the assets, liabilities or credit rating of a potential employee tends to impact more adversely on minorities and females.  The EEOC’s position is that the usage of consumer reports in the pre-employment context is permissible only if the employer can show that such information is essential to the particular job in question.  In other words, the test must be related to the job the employee will perform and must be consistent with a business necessity. 

Liability PhotoThe Fair Labor Standards Act (FLSA) establishes requirements regarding the compensation of employees working in the private sector and in federal, state and local government positions. To protect employees, the FLSA prohibits retaliation by employers against employees who complain that their rights have been violated. 

In the past, the FLSA anti-retaliation provision has applied to cases where an employee was fired or discriminated against after filing a formal complaint with a governmental agency, resulting in the commencement of formal proceedings against the employer.  Recently, the U.S. Court of Appeals for the Fourth Circuit found that the anti-retaliation protections could also apply to informal “intra-company” complaints made by an employee. 

Harassment Photo

Title VII of the Civil Rights Act of 1964 was designed to protect employees from “severe or pervasive” workplace harassment. The potential for employer liability differs depending on whether the “bad acting” employee is a supervisor or co-worker of the complaining party.

If the “bad acting” employee is a co-worker of the complaining employee, the employer will face liability only if it was negligent in discovering or remedying the harassment. If the “bad acting” employee is a supervisor, liability is more easily found. For wrongs by supervisors, the employer can be held “vicariously liable,” meaning the employer can be held responsible for the supervisor’s actions regardless of knowledge or corrective action.

GraduateHat

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities.  The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011.  A significant change in the ADAAA was an expanded definition of “disability.”

For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives.  With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability.  To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.