top recruiting and hiring legal i$$ue$ to pay …...fair credit reporting act still fertile grounds...

OCTOBER 3, 2019

TOP RECRUITING AND HIRING LEGAL

I$$UE$ TO PAY ATTENTION TO NOWWHAT STAFFING FIRM CLIENTS NEED TO KNOW

STEPHEN C. DWYER

GENERAL COUNSEL

AMERICAN STAFFING ASSOCIATION

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▪ Targeted advertising; age discrimination

– Class actions against Facebook, employers

▪ Drop-down menus; age and other discrimination

▪ Corporate websites; disability discrimination

RECRUITING—SOCIAL MEDIA AND CORPORATE WEBSITES

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▪ State and local laws:

▪ Salary history inquiries

▪ 7 states: California, Connecticut, Delaware, Hawaii,

Massachusetts, Oregon, Vermont

▪ 7 Municipalities and Territories: San Francisco, New York

City, Albany County (NY), Suffolk County (NY),

Westchester County (NY), Philadelphia, Puerto Rico

SCREENING—SALARY HISTORIES

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▪ Fair Credit Reporting Act

▪ Still fertile grounds for class actions

▪ Stand-alone disclosure

▪ Separate written authorization

▪ State disclosures

▪ Ban-the-box laws

▪ 11 states; 17 localities▪ California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon,

Rhode Island, Vermont, and Washington

▪ Austin, Baltimore, Buffalo, Chicago, Columbia (MO), the District of Columbia, Kansas City

(MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR),

Prince George’s County (MD), Rochester, San Francisco, Seattle, and Spokane (WA)

SCREENING—BACKGROUND CHECKS

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Marijuana laws:

▪ 31 states, Washington, D.C. and Puerto Rico allow for medical marijuana

▪ 11 states and Washington, D.C. have legalized recreational marijuana

▪ Federal preemption? Not so fast . . .

▪ MA and RI: disability discrimination, interactive process required

▪ Connecticut: discrimination

▪ Arizona: discrimination

▪ Defense: good faith belief under the influence

▪ Protection for employers: impairment or safety issue

▪ Train staff to look for red eyes, lethargic demeanor, lack of

coordination, confusion and lack of focus

SCREENING—MARIJUANA

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Going forward . . .

▪ Notwithstanding some state medical marijuana laws,

employers are not required to tolerate marijuana use or

impairment at work or while working

▪ Some employers will continue to reject medical marijuana

use in reliance on federal illegality, particularly federal

contractors and those with safety-sensitive positions

▪ Case-by-case, reasonable accommodation analysis with

interactive process

▪ Perhaps cease testing for marijuana entirely- *discuss with

your workers’ compensation & insurance providers first*

SCREENING—MARIJUANA

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▪ 2018 Audits Quadrupled

▪ 5,981 audits FY 2018 versus 1,360 for all of 2017

▪ 3,000 NOIs in July 2019

▪ Three (!) days to produce records

▪ Fines are steep

▪ $224 to $2,236 per paperwork violation

▪ $559 to $22,363 per unauthorized worker

▪ Some firms: six and seven-figure fines

ONBOARDING—I-9 AUDITS

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▪ Not reviewing original documents

▪ Copies not allowed

▪ Skype not allowed

▪ Video chat not allowed

▪ Electronic I-9s—Emerging Area

▪ Pre-population

▪ Audit trail

▪ Attestation

▪ Do internal audit now; prepare for NOIs

ONBOARDING—COMMON I-9 ERRORS

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▪ Federal government

▪ Rescinded 2015 guidance

▪ Opinion letter on online platform workers

▪ No effect on states—NJ, CA

▪ Lack of enforcement priority

▪ California

▪ Dynamex decision adopts “ABC” test; AB 5

(A) worker is free from control and direction

(B) worker performs work that is outside usual course of the hiring entity’s

business; and

(C) that the worker is customarily engaged in an independently established trade

or occupation

▪ States stepping up enforcement due to federal government inaction

INDEPENDENT CONTRACTORS—NOT WORTH THE RISK?

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▪ Overtime

▪ Minimum wage

▪ Paid leave

▪ Harassment training

▪ Wage theft

▪ Predictive scheduling

▪ Discrimination (e.g., hairstyles, sexual orientation)

▪ Pay equity

▪ Privacy

▪ Immigration (H-1B visas)

▪ Noncompetition/nonsolicitation

▪ Arbitration agreements

HODGEPODGE OF FEDERAL, STATE, AND LOCAL LAWS

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What is perhaps the best proactive measure you can undertake to limit your potential employment law-related exposure?

DISCUSSION QUESTION

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Arbitration Agreements

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