Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Modified Fair Credit Reporting Act Notices are Now Required

The following is an important message for all employers that use credit reporting agencies to perform pre-employment background checks or other related investigations:

 

If your business, or the credit reporting agency performing background checks on your behalf, currently provides any of the following three forms to employees or applicants regarding their rights under the Fair Credit Reporting Act (FCRA), please note that newly modified versions of those forms have been released by the Consumer Financial Protection Bureau (CFPB) and must be in use by January 1, 2013. 

 

The modified forms include:

• “A Summary of Your Rights under the Fair Credit Reporting Act,” which employers must provide to applicants and employees along with any pre-adverse action notice, or along with any disclosure notices when obtaining an investigative consumer report;
• “Notice to Users of Consumer Reports:  Obligations of Users under the FCRA,” which background check providers must give to those using their services, including employers; and 
• “Notice to Furnishers of Information:   Obligations of Furnishers under the FCRA,” which background check providers must give to certain furnishers of information in specific situations.

 

The modifications to these forms are not substantive, but rather primarily substitute references to the Federal Trade Commission, which previously enforced the FCRA, with references to the CFPB, a new regulatory authority created by the Dodd-Frank Wall Street Reform and Consumer Protection Act that has recently taken over enforcement of the FCRA.  The modified forms thus inform consumers that beginning January 1, 2013 the CFPB is the appropriate agency to contact regarding their rights under the FCRA.  

 

The Fair Credit Reporting Act: a Fact Sheet

What does it do? Imposes strict rules on an employer’s ordering and use of consumer reports for employment purposes

 

What employers are covered? All employers who order consumer reports from a consumer reporting agency

 

What’s a “consumer report”? A report of information relating to an individual’s credit, general reputation, criminal history or personal characteristics

 

What’s an “investigative consumer report”? A report of background information on an individual obtained from personal interviews with friends, neighbors or associates of the individual

 

What’s a “consumer reporting agency”? A business that assembles or evaluates consumer reports for third-party businesses

 

What steps must an employer take before obtaining a consumer report?

• Notify the employee or applicant in writing about your intent to obtain a report
• Obtain employee or applicant’s written permission prior to requesting report

 

What steps must an employer take before taking adverse action based on a consumer report?

• Provide the individual with a copy of the report
• Provide the individual with a copy of the Summery of FCRA Rights available at www.ftc.gov

 

What steps must an employer take after adverse action? Provide written, oral or electronic notice of the adverse action to the individual.  The notice must include each of the following:

• The name, address and phone number of the consumer reporting agency that provided the report
• A statement that the consumer reporting agency did not make the decision to take the adverse action and will not be able to provide the individual with the specific reasons for the decision
• A statement that the individual has the right to dispute the accuracy or completeness of the information provided
• A statement that the individual can get an additional free consumer report from the consumer reporting agency used by the employer upon a request made within 60 days

 

What are the potential penalties?

• Actual damages
• Punitive damages
• Attorneys’ fees

 

Top FCRA tips

• Ensure that you have the proper permission from an employee or applicant before requesting a report
• Cannot request applicant to provide permission in an employment application
• Additional restrictions apply for employers intending to obtain and use investigative consumer reports
• Provide a “pre-adverse action” notice before rejecting a candidate based on the report, including a copy of the report and a summary of the individual’s rights
• Send an “adverse action” notice after waiting at least 5 business days from the “pre-adverse action” notice.

 

And in CA as of 2013: Employers are precluded from using credit reports in hiring and employment decisions except for:

• DOJ/Law enforcement positions
• Managerial positions
• Jobs w/access to proprietary & confidential info
• Jobs w/access to personal information
• Jobs w/named signatory status
• Financial institutions
• Regular access to $10,000 or more in cash

 

Note: Employers can’t be sued for inaccurate information provided by a professional screening company but can be sued for not following FCRA notification and other requirements.

 

DHL Global Forwarding Pays $201,000 to Settle EEOC Suit

DHL Global Forwarding will pay $201,000 to nine employees and provide other significant relief to settle a national origin hostile environment lawsuit brought by the EEOC.  The settlement, announced today, resolves the claims against DHL Global.   The EEOC charged DHL Global with subjecting a class of Hispanic employees to national origin discrimination.  The EEOC's suit also resolved a retaliation claim by one non-Hispanic employee who was allegedly fired for a brief time after he reported the treatment of Hispanic employees.

 

According to the EEOC's suit, Hispanic employees at DHL's Dallas warehouse were constantly subjected to taunts and derogatory names such as "wetback,"  "beaner," "stupid Mexican" and "Puerto Rican b—h".   According to the EEOC, Hispanic workers, who included persons of Mexican, Salvadoran and Puerto Rican heritage, were often ridiculed by DHL personnel with demeaning slurs which included referring to the Salvadoran worker as a "salvatrucha," a term referring to a gangster.  Other workers were identified with derogatory stereotypes by being told they should be outside the facility "mowing the grass" or that their "homies" were on a television show about prison.  The EEOC further asserts that company supervisors made harsh admonitions to bilingual employees about use of their Spanish language on the job.  The agency asserts that these admonitions were motivated by prejudice, unnecessary and unrelated to the effective performance of the job duties.

 

The EEOC complained that DHL Global officials ignored the complaints of employees even after the discriminatory conduct was reported to management.  The EEOC's suit also alleged that DHL Global retaliated against a union steward, by firing him after he reported the mistreatment of Hispanic employees to DHL officials on numerous occasions.  He was ultimately returned to work and continues to be employed with the other affected employees.

 

Employers must respond immediately to the multiple reports of harassment and eliminate the problems so as not to permit an atmosphere of contempt and mockery." National origin discrimination in the workplace, including national origin harassment, and retaliation for complaining about it, violate Title VII of the Civil Rights Act of 1964.  The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. 

The EEOC said, "Bullying Hispanic workers for speaking a language other than English is a distinct form of discrimination, which, when coupled with ethnic slurs, is clearly motivated by prejudice and national origin animus.  Sometimes job discrimination isn't just about hiring, firing or promotion; it's about an employer promoting disharmony and disrespect through an unhealthy work environment."

 

The three-year consent decree settling the case provides for a  permanent injunction against DHL Global that prohibits the company from further  discriminating against any employee on the basis of national origin, harassing  any employee on the basis of national origin or retaliating in any way against  any person because of opposition to any practice declared unlawful by Title  VII. 

 

DHL Global will pay $201,000 in monetary relief and develop strong policies to respond to reports of national origin discrimination.  In addition, DHL Global will conduct annual anti-harassment and anti-discrimination training, which will include instruction on the prevention of national origin harassment in the workplace.  The training will also advise employees of the consequences imposed for violating federal anti-discrimination law.  Each new hire will be provided a copy of DHL Global's non-discrimination policy, and the company will provide copies of its anti-harassment policies in both English and Spanish to its employees. 

 

As part of the settlement, EEOC will monitor compliance with the consent decree.  DHL will provide EEOC a log of all employee complaints alleging national origin discrimination or retaliation.  DHL also agreed to impose discipline — up to and including termination, suspension without pay or demotion upon anyone found to have engaged in national origin discrimination.

 

Factoids

COBRA factoids:

• Employers are subject to a minimum excise tax of $100 per each day ($200 for a covered family) a plan is not in compliance with COBRA. The maximum tax penalty is $500,000
• Penalties for violations can be up to $2500 per beneficiary
• Plan administrators can be fined up to $110 per day per beneficiary for failed notice requirements

Background and Credit Checks:

• 87% of employers conduct criminal background checks, in 1998 is was 58%
• Employers cannot have a blanket ban on hiring anyone with a criminal record

Voluntary separation is inching up:

• In 2010 it was 7%
• in 2011 it was 8%